CRI.APPEAL.393.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 393 /2003
Debaji s/o Wamanrao Gajbhiye
Aged about 50 years,
R/o Kohali, Tah. Kalmeshwar
Dist. Nagpur. .. APPELLANT
v e r s u s
1) State of Maharashtra
2) Ghanshyam s/o Arjun Nikose
Aged about 50 years
3) Prabha w/o Ghanshyam Nikose
Aged about 45 years
4) Vinayak s/o Ghanshyam Nikose
Aged about 25 years
5) Milind s/o Ghanshyam Nikose
Aged about 18 years
Res. Nos. 2 to 5, R/o Nandikheda
Tah. Saoner, Dist. Nagpur. .. RESPONDENTS
...........................................................................................................................
Mr. R.M.Daga with Ms.Haidari, Advocates for appellant
Mr. N.H. Joshi, Additional Public Prosecutor for respondent no.1-State
None for Respondents 2 to 5
............................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 31st August, 2017 ORAL JUDGMENT:
This Appeal has been directed against the judgment and order dated 28th May 2003 in Regular Criminal Case No.321/2000 passed by the ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:31:39 ::: CRI.APPEAL.393.03 2 learned Judicial Magistrate, First Class, Saoner, by which he acquitted the respondent nos. 2 to 5, of the offence punishable under Sections 427, 504 and 506 all r./ws. 34, of the Indian Penal Code.
2. I have heard Shri R.M. Daga learned counsel along with Ms. Haidari for the appellant and Mr. Nikhil Joshi, the learned Additional Public Prosecutor for the respondent no.1-State. Respondent nos. 2 to 5 though represented, remained absent.
3. The case of the complainant in nutshell, is that the fields of complainant-Debaji Wamanrao Gajbhiye and that of respondent no.2- Ghanshyam Nikose are adjoining to each other at Nandikheda, separated by a common boundary. There was a dispute between the complainant and respondent no.2-Ghanshyam about the exact extent of the boundary between their respective fields and, therefore, the complainant had got measured his agricultural field from the Taluqa Inspector of Land Records office. According to the complainant, the Measurer from the Office of the TILR visited the field of the complainant and fixed stones showing the extent of the field of the complainant. The incident took place on 5.8.2000. While the complainant and his labourers were fixing the cement concrete poles around the field of the complainant, in order to put a fencing. At that time, the respondents 2 to 5 entered into the field of complainant, abused and threatened him and uprooted the cement concrete poles affixed by the complainant. The complainant reported the matter to the Kelwad Police Station. However, ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:31:39 ::: CRI.APPEAL.393.03 3 according to him, the police did not take any action against the said respondents as the offence committed by them was of non-cognizable nature. Therefore, the complainant filed a private complaint against respondents 2 to
5. On the basis of the said report, the learned Magistrate took cognizance of the offence against the respondents 2 to 5 and recorded the statement of the complainant on oath. The charge was framed against the respondents 2 to 5. The trial was conducted. The complainant examined in all three witnesses. The learned Magistrate after hearing both sides, acquitted the respondents 2 to 5, as aforesaid. Hence this Appeal.
4. As far as the testimony of PW1-Dhepaji Gajbhiye is concerned, it is in consonance with the complaint. The contents in the complaint are already described above. The testimony of PW1-Dhepaji indicates that while his labourers were trying to erect the fencing around his agricultural field by fixing the cement concrete poles, the respondents 2 to 5 abused and threatened him. The testimony of PW2-Gulab Sonone and PW3-Narayan Wagh, who are the labourers, also support the case of the complainant. However, on careful scrutiny of the testimony of all these witnesses, even assuming that the respondent nos.2 to 5 had abused and threatened the complainant and had also removed pillars which were erected by the complainant, it is not clear to whether the complainant was erecting the cement concrete poles within his area or he had encroached upon the field of respondents 2 to 5. If the complainant was trying to erect the cement concrete ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:31:39 ::: CRI.APPEAL.393.03 4 poles in the field of respondents unilaterally, in that case, the respondents would not be responsible for the removal of encroachment into their field. However in the absence of the determination of the fact that the exact field area of the complainant has to be decided by competent Civil Court, it is difficult to come to the conclusion that the respondent nos.2 to 5 damaged the property of the complainant. The learned Magistrate has rightly observed that if a person forcibly puts his property into another person's area and in order to protect his possession such a property is damaged by another person, then certainly the scope of Section 425 of IPC is not attracted. The learned Magistrate has rightly come to the conclusion that in the circumstances, the allegations under section 427 of IPC are not proved.
5. As regards the abuse and the threats given by the respondents 2 to 5, it is noticed that only the labourers were examined by the complainant. No other independent witnesses who were present in the adjoining fields, were examined by him. In view thereof, an adverse inference can be drawn against the complainant. As already discussed above, the complainant's report was not registered by the police as police has simply noticed a non-cognizable offence and, therefore, the complaint was forwarded to learned Magistrate, Saoner for further action. The learned Magistrate, therefore, rightly reached the conclusion that there was delay of three months in lodging the complaint and, therefore it has raised a doubt about the bona fides of the complainant. Thus, the complainant has miserably ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:31:39 ::: CRI.APPEAL.393.03 5 failed to prove beyond reasonable doubt that the respondent nos.2 to 5 had with common intention, had caused damage to the property of the complainant, intentionally insulted and criminally intimidated him. It is significant to note that the complainant had failed to examine the TILR who, of course, would have certainly thrown light on the aspect of demarcation of the land, with regard to the fact as to which particular land was belonging to the complainant. I do not find any irregularity in the impugned order.
6. In the result, the Appeal fails and is dismissed.
JUDGE Sahare ::: Uploaded on - 05/09/2017 ::: Downloaded on - 07/09/2017 01:31:39 :::