Baban Khandu Ingole vs State Of Maha
2016 Latest Caselaw 6568 Bom

                                                                                          1                    Cr.Revn.Apln. 16.2004 - [J]


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD




                                                                                                                         
                        CRIM.REVISION APPLICATION NO. 16 OF 2004




                                                                                          
                        Baban s/o Khandu Ingole




                                                                                         
                         Age : 31 Yrs., Occ. Labour,
                         R/o : Basmath, Tq.                                                        ..... APPLICANT/
                         Basmath, Dist. : Parbhani.                                                             [ORIGINAL




                                                                     
                                                                      APPELLANT/ACCUSED NO. 1]
                                            
                                                                      VERSUS
                                           
                         The State of Maharashtra
                         Through              Police Station,
       


                          Basmath.                                                              ..... RESPONDENT
    



                                                           .............................





                                     Mr. Patel Fayaaj h/f Mr. P.R.Katneshwarkar,
                                     Advocate for Applicant.
                                     Mr. P.N.Kutti, A.P.P. for Non applicant -State.





                                                          ..............................


                                                                                       CORAM : Z.A.HAQ, J.

DATE OF JUDGMENT : 21st NOVEMBER, 2016 .............................

                                                                                           2                    Cr.Revn.Apln. 16.2004 - [J]


                          ORAL JUDGMENT :




                                                                                                                         

1. Rule. Rule made returnable forthwith.

2. Heard Mr. Patel Fayaaj holding for Mr.

P.R.Katneshwarkar, learned Advocate for the

applicant and Mr. P.N.Kutti, learned A.P.P. for non

applicant - State.

ig The applicant has challenged the Judgment

passed by the Sessions Court dismissing the Appeal

filed by the applicant and maintaining the Judgment

passed by the Judicial Magistrate First Class,

Basmath, by which the applicant is convicted for the

offence punishable u/s 448 read with 34 of the Indian

Penal Code.

4. The submission on behalf of the applicant

is that no specific role was attributed to the applicant

and even his presence on the spot, at the time of

incident, has not been established by the prosecution.

It is further submitted that the charge was framed

for the offence punishable u/s 448 of the Indian Penal

3 Cr.Revn.Apln. 16.2004 - [J]

Code for criminal house trespass when undisputedly

the property in question was open land and,

therefore, the applicant could not have been

prosecuted for committing house trespass.

5. Learned A.P.P. has pointed out the

considerations of the learned Additional Sessions

Judge in para No. 19 of the impugned Judgment and

has submitted that the conviction has to be treated as

u/s 447 of the Indian Penal Code, as rightly recorded

by the learned Additional Sessions Judge.

6. With the assistance of the learned counsel

for the applicant and the learned A.P.P., I have

examined the record. The charge against the

applicant was for commission of criminal house

trespass. The learned Advocate for the applicant has

rightly submitted that the charge was erroneous and

there could not have been prosecution of the

applicant on the basis of the above charge, as

undisputedly the property in question was open land.

Learned Additional Sessions Judge has also recorded

4 Cr.Revn.Apln. 16.2004 - [J]

factual aspect that the property in question was an

open land.

7. Apart from this, I find that the prosecution

has failed to establish beyond reasonable doubt the

presence of the applicant on the spot at the time of

the alleged incident. The learned Magistrate has not

referred to any specific evidence, by which any role is

attributed to the applicant and the considerations are

of general nature that the accused persons were

present on the spot and were trying to erect huts.

The conviction of the applicant on such general

considerations, can not be sustained. Hence, the

following order.

(i) The Judgment passed by the Judicial

Magistrate First Class, Basmath and

maintained by the Sessions Court

convicting the applicant is set aside.

(ii) The applicant is acquitted of the charge for

the offences punishable u/ss 143,448 read

5 Cr.Revn.Apln. 16.2004 - [J]

with 34 of the Indian Penal Code.

(iii) The amount of fine deposited by the

applicant be refunded to him.

(iv) In the circumstances, parties to bear their

own costs.

(v) ig Needless to state that the order passed by

this Court directing issuance of non bailable

warrant against the applicant stands

recalled.

(vi) Rule is made absolute in the above terms.

[Z.A.HAQ, J.]

KNP/Cr.Revn.Apln. 16.2004 - [J]