Debaji Wamanrao Gajbhiye vs The State Of Mah. And 4 Oths
2017 Latest Caselaw 6641 Bom

                                                                                             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

CRI.APPEAL.393.03

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,

CRI.APPEAL.393.03

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

CRI.APPEAL.393.03

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

CRI.APPEAL.393.03

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