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Karim Vs. Nasebo and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. of 1970
Judge
Reported in1974WLN(UC)258
AppellantKarim
RespondentNasebo and ors.
DispositionAppeal dismissed
Excerpt:
.....reasonable doubt on veracity of version of complainant.;had there been any report lodged with the police, the complainant would have surely taken staps to get it produced in the court. the trial court, therefore, rightly held that the complainant could not afford reasonable explanation for the inordinate delay in making the complaint against the respondents. the delay in launching the prosecution is this case casts reasonable doubt of the veracity of the complainant's vession about the occurrence.;(b) penal code - section 447--cogent evidence of physical possession is necessary.;in order to constitute an offence punishable under section 447. i.pc. there should be cogent evidence to prove actual physical possession of the complainant over the piece of land on which criminal trespass was..........did he summon the investigating officer to give evidence in the case and to produce the relevant police record. had there been any report lodged with the police, the complainant would have surely taken steps to get it produced in the court the trial court, therefore, rightly held that the complainant could not afford reasonable explanation for the inordinate delay in making the complaint against the respondents. the delay in launching the prosecution in this case casts reasonable doubt on the veracity of the complainant's version about the occurrence.5. another ground on which the learned magistrate relied upon for acquittal of the respondents is that the complainant could not produce the order of allotment of this land in his favour by the tehsildar. he even did not produce.....
Judgment:

K.D. Sharma, J.

1. This is an appeal filed by Karim complainant by special leave granted Under Section 417(3), Cr.P.C. against the judgment of the learned Munsiff Magistrate, Phalodi, dated 12th September, 1970, by which Mst. Nasebo, Mubarak, Hefiz, Ismail and Ishaq were acquitted of the offences punishable Under Sections 447 and, 379 I.P.C.

2. The complainsnt's case against all the five respondents was that on 4th November, 1966, they forcibly entered upon his land comprised of Khasra No. 561 measuring 15 Bighas, situated at some distance from Phalodi, and dishonestly took away his crops of Bajra, Moth, Til Gawar etc. of the value of Rs. 400/. According to the complainant, this pieces of land was allotted to him by an order of the Tehsildar, Phalodi, and that its actual possession was given to him by the Patwari of that circle in pursuance of the order of allotment. The complainant alleged to have made a report of thin incident to the police station, Phalodi, but his contention was that the police did not take any action upon his complaint and so he had no other course open than to file a complaint against the respondents in the court of the Munsiff Magistrate, Phalodi.

3. The learned Magistrate, upon receiving the complaint, took cognizance against the five respondents Under Sections 147, 447 & 379, I.P.C., after examining the complainant on oath Under Section 200, Cr.P.C. He enforced the attendance of the respondents and after framing charges against them Under Sections 447 & 379 only, proceeded to try them for the said offences. The complainant examined himself at the trial & produced Rama Kishan (P.W. 2) and Vasudeo Patwari (P.W. 3) in support of the allegations made in the complaint. The plea of the respondents was that of complete denial of the alleged trespass and theft of he property. They produced Sher Khan (D.W. 1), and Dungar Singh (D.W. 2). in their defence. Besides one of the respondents, namely, Mubarak appeared in the witness-box on his own request in writing. The learned Magistrate considered the entire evidence on record and arrived at a conclusion that the complainant could not produce satisfactory evidence to prove the alleged trespass over the land covered by Khasra No. 561 and he miserably failed to bringt guilt home to the respondents Under Sections 447 and 379, I.P.C. Consequently, he acquitted the respondents of these charges which were tramed against them. As against this judgment, the complainant has come up in appeal to this Court, as stated above.

4. I have gone through the record and heard the arguments advanced by the learned Counsel for the complainant-appellant and the respondents. Upon careful review of the entire evidence on the record, I have no hesitation in holding that the trial court rightly acquitted the respondents of the offences punishable Under Sections 447 and 379, I.P.C. The trial court has recorded cogent reasons for acquittal of the respondents, with which I fully agree. The offences were alleged to have been committed by the respondent on 4th November, 1966. The complaint was filed before the learned Magistrate on 3rd January, 1967. The explanation given by the complainant for delay in making the complaint is not at all convincing. According to the complainant, he had approached the police soon-after the occurrence and had made all report of the incident at the police station, Phalodi, and that on the basis of his report the police inspected the site but later on did not take any action in the matter. Curiously enough, the complainant could not produce a copy of the first information report, nor did he summon the investigating officer to give evidence in the case and to produce the relevant police record. Had there been any report lodged with the police, the complainant would have surely taken steps to get it produced in the court The trial court, therefore, rightly held that the complainant could not afford reasonable explanation for the inordinate delay in making the complaint against the respondents. The delay in launching the prosecution in this case casts reasonable doubt on the veracity of the complainant's version about the occurrence.

5. Another ground on which the learned Magistrate relied upon for acquittal of the respondents is that the complainant could not produce the order of allotment of this land in his favour by the Tehsildar. He even did not produce 'Dakhalnama' to show that in fact possession of the land in question was handed over to him by Vasudeo Patwari in pursuance of an order of allotment made in his favour. Vasudeo Patwari has no doubt appeared in the witness box and has deposed that possession of some piece of land was given to the complainant under orders of the Tehsildar. Phalodi, but he could not definitely say that the piece of land, the possession of which was given to the complainant, was a part of Khasra No. 561 His evidence is that he had handed over possession of 15 Bighas of allotted land either of Khasra No. 516 or of Khasra No. 561 to Karim complainant. The complainant ought to have summoned in the court the relevant revenue record from the Tehsildar and then should have examined Vasudeo Patwari to prove his actual possession of the land in question on the date of occurrence. Vasudeo patwari admitted in his deposition that he had given evidence in the court without referring to the revenue record. Form his evidence it is highly doubtful whether 15 Bighas of land was given to Karim appellant out of Khasra No. 561. In order to constitute an offence punishable Under Section 447, I.P.C. there should be cogent evidence to prove actual physical possession of the complainant over the piece of land on which criminal trespass was alleged to have been committed by the accused. In this case the complainant could easily prove his actual physical possession over the land in question by producing order of allotment, 'Dakhalnama', rent-receipt etc. which he could not do. Hence the trial court's finding that the complainant could not prove his actual physical possession over the land under controversy beyond reasonable doubt is correct and based upon evidence.

6. Then there is no reliable proof that the respondents took away crops of Bajra, Moth, Gawar, Til etc. from the field of the complainant after committing trespass over it, no offence of theft of crops could be held to have been committed from the field actually possessed by the appellant. In this view of the matter, no exception can be taken to the findings of acquittal arrived at by the lower court upon careful scrutiny of the entire evidence on the record.

7. The appeal filed by Karim appellant, therefore, fails and is hereby dismissed.


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