CRIMINAL APPEAL No.5 OF 1993 (Against the judgment and order of acquittal dated 24.11.1992 passed by the Judicial Magistrate, 1st Class, Patna, in complaint case No. 179C of 1998) Syed Md. Abdus Samad-----------------------------------------(Appellant) Versus Md. Kalimuddin & ors--------------------------------------(Respondents) ----------- For the appellant: Mr. Meinudding Ahmad, Adv. Mr. Sunil Kr. Tiwary, Adv. For the Opposite Party: Mr. Gopaljee, Adv. For the State: Mr. Ajay Mishra, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD C.M. Prasad, J. This appeal is against the judgment of acquittal passed by the Judicial Magistrate, 1st Class, Patna under Complaint Case No. 179C of 1998/Tr. No. 39 of 1992 whereby the O.P. No.1 Md. Kalimuddin has been acquitted of the charges under Sections 448 and 352 of the Indian Penal Code. 1. The prosecution case was that on 11.4.1988 at 4:30 P.M., the O.P. No.1 forcibly entered into a room of the disputed house premises which was in possession of the appellant/complainant Syed Md. Abdus Samad who is now dead and his heirs are on record and that when the complainant had protested to it he was jostled away by the O.P. No.1. The complainant had claimed his title and possession over the land on the basis of purchase of house premises from one Md. Hasan @ Anju by virtue of a sale deed dated 14.12.1966 and both the parties were on acute litigating terms and several civil cases were admittedly pending between them and during trial, lot of papers were - 2 - proved before the trial court in connection with those cases between the parties. 2. In support of his case, the appellant/complainant had cited as many as nine witnesses in the complaint petition and they were stated to be the neighbours of the locality. But during trial which was commenced in the year 1998, the complainant examined only one witness P.W.1 Md. Shohail on 14.4.1991. It was due to non-production of the witnesses that the trial court closed the complainant’s evidence on 24.4.1991. The complainant moved a Criminal Revision No. 340 of 1991 before the learned District and Sessions Judge wherein an opportunity was allowed to the appellant/complainant to produce further witnesses. As a result of the opportunity, the complainant produced himself as P.W.2 but no other witness was examined by him on the point of occurrence. 3. The learned trial court considered the evidence of the two witnesses. The two witnesses particularly the complainant was examined in great details. On consideration of the evidence and the various circumstances in the evidence, the trial court came to a finding that the two witnesses were highly interested ones and it was not safe to place reliance on their evidence. The learned trial court also considered that on the date of occurrence when the O.P. No.1 was alleged to have entered into a room of the disputed house there was a proceeding under Section 144 Cr.P.C. which was made absolute against the complainant and had been vacated against the O.P. No.1. It was also considered that despite there being a prohibitory order, the appellant/complainant did not inform the authority promulgating the prohibitory order nor took any steps before such authority for violation of his prohibitory order. - 3 - 4. While arguing the matter, the learned counsel for the appellant/complainant submitted that after purchasing the land by the said Kewala deed dated 14.2.1966, the complainant was in possession of the house including the room which was trespassed by the O.P. No.1. It was submitted by him that the act of trespass and that too forcibly amounted to commission of offence punishable under Sections 448 and 352 of the Indian Penal Code. The learned counsel for the O.P. No.1 submitted that in a criminal case such alleged act of trespassing is not to be considered only on the grounds of the Kewala deed with respect to purchase of the house by the appellant/complainant but it has to be proved beyond doubt by adducing evidence on the point of occurrence. As to the evidence adduced by the appellant/complainant it was argued that the complainant being on acute litigating terms with the O.P. No.1 managed to file this case falsely in order to put pressure on the O.P. No.1 and to get leverage in the civil cases against O.P. No.1. 5. The learned counsel for the O.P. No.1 also argued that as many as nine witnesses were examined in the complaint petition but out of them only one, who was an interested witness, was examined. It was further submitted that there is no explanation for non-examination of other eight witnesses and that non-examination of those witnesses would call for an adverse inference against the case of prosecution that if examined they would not have supported the prosecution case. 6. The learned counsel for the O.P. No.1 also submitted that the O.P. No.1 had filed Title Suit No. 283 of 1980 wherein prayer had been made for declaring the said Kewala deed dated 14.2.1966 of the appellant/complainant as forged and fabricated - 4 - and a further prayer was also for declaration of his (O.P’s 1) title over the disputed/P.O. land or room. It was further submitted by the learned counsel that the said title suit No.283 of 1980 was decreed on 23.12.1987 whereby the title of the O.P. No.1 was declared over the P.O. land/house. The learned counsel also continued to submit that against that decree the appellant/complainant filed Title Appeal No. 12 of 1988 but the same was dismissed on 19.3.1991 confirming the title of O.P. No.1 over the P.O. land/house. This position is not denied by the appellant/complainant but it is submitted by the appellant’s counsel that against the judgment dated 19.3.1991 under Title Appeal No. 12 of 1988, a Second Appeal No. 161 of 1991 was filed which was allowed on 27.7.1995 and thus it was argued that the decree of the Lower Court as passed in Title Suit and First Appeal declaring the title of the O.P. No.1 over the P.O land/house was reversed and title was ultimately decided in favour of the appellant/complainant. 7. No doubt, the position is such that the title over the P.O. land/house was earlier decided by the trial court and the appellate court in favour of the O.P. No.1 but ultimately it came to be decided in favour of the appellant/complainant. The leaned counsel for the O.P. No.1 submitted that it is not a case of assault or causing injury but a simple case of going over or entering upon a land under a claim of ownership of the land. It is submitted that no criminal force is said to have been used for causing injury to anybody and the simple allegation is that the appellant/complainant was jostled away by the O.P. No.1 who entered into the room, though, arguing extensively in view of the evidence brought by the appellant/complainant on record, the leaned counsel for the O.P. No.1 also submitted that the evidence is not - 5 - Patna High Court, the 24th June, 2010 N.A.F.R/Ravi/- sufficient to prove the occurrence beyond doubt on critical analysis of evidence of the two witnesses. The learned trial court has also come to this finding. The learned counsel for the O.P. No.1 also made an alternative argument that O.P. No.1 had a decree in his favour declaring his title over the land and thus, therefore, if he went over the land or tried to go over the land it was nothing but to exercise a bona fide right of title over the land. Considering the situation that the title of O.P. No.1 over the P.O./house was declared by the trial court under Title Suit No. 283 of 1980 and the same having been confirmed under Title Appeal No. 12 of 1988, though, it was reversed at a later stage under Second Appeal No. 161 of 1991, I find substance in the submission of the learned counsel for the O.P. No.1 that the O.P. No.1 had a bona fide right, title over the land and the alleged act, though not proved beyond doubt by the evidence of witnesses, can be considered as an act in exercise of bona fide right of O.P. No.1. 8. In view of the facts and circumstances and considering as above, I do not find any perversity or illegality in the order of acquittal passed by the learned Magistrate. Thus finding no merits in this appeal, it is dismissed. (Chandra Mohan Prasad, J.)