Bombay High Court

The State Of Mah vs Suresh Ganpat Bhagwat on 20 January, 2018

Bench: A. M. Dhavale

                                                                       Cri.Appeal 785/2004
                                              1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 785 OF 2004

The State of Maharashtra,
Through the Public Prosecutor,
High Court Bench at Aurangabad                                  ..       Appellant

        Versus

Suresh Ganpat Bhagwat,
Age 33 years, Occu. Labour work,
resident of Pathardi, Taluka Pathardi,
District Ahmednagar                                             ..       Respondent

Mrs V.N. Patil, Jadhav, A.P.P. for appellant
Mr R.R. Karpe, Advocate for respondent



                                            CORAM : A.M. DHAVALE, J.

                                            DATE        : 20.1.2018
ORAL JUDGMENT :

1. This appeal is by the State against the judgment of acquittal

passed by learned 5th Ad hoc Additional Sessions Judge, Ahmednagar

in Criminal Appeal No.58 of 2002, whereby the respondent herein was

acquitted of the offence punishable under Section 447 of Indian Penal

Code by setting aside the conviction recorded by learned Judicial

Magistrate, First Class, Pathardi in Summary Criminal Case

no.254/2000 under Section 447, by judgment dated 28.11.2002. The

respondent was sentenced to simple imprisonment for one month and

to pay fine of Rs.250/-, in default simple imprisonment for fifteen

days.

2. The facts relevant for deciding this appeal may be stated as

follows :

Cri.Appeal 785/2004

P.W.2 Ashok Bansod, on 16.7.2000 lodged F.I.R. at Pathardi

police station. As per F.I.R. he was owner of plot No.1-C admeasuring

33x32 meters, having odd shape of total area of 763.75 square

meters at Survey No.3/1 (old) and Survey No.9/1 (new) at Pathardi. It

is near old S.T. Stand. According to the informant, the defendant was

threatening him to disturb his possession. Hence, he filed R.C.C.

No.202/1998 against him and had obtained relief of temporary

injunction. The respondent herein in breach of said injunction order

made encroachment and constructed a tapari/shed on his plot on

16.7.2000. On the basis of F.I.R., Crime was registered at C.R.No.I-

136/2000 under Sections 447, 504, 506 of Indian Penal Code and the

same was investigated into. After submission of charge-sheet,

learned Judicial Magistrate, First Class, Pathardi framed the charge.

The accused pleaded not guilty. The prosecution examined four

witnesses. The learned Judicial Magistrate, First Class, Pathardi

convicted the respondent under Section 447 of Indian Penal Code. The

said order was challenged by way of appeal and the Sessions Judge

allowed the appeal and acquitted the accused. Hence, this appeal.

3. Mrs V.N. Patil Jadhav, learned A.P.P. has taken me through the

evidence on record and stated that the ownership and possession of

the informant over plot No.1-C is not in dispute and is supported with

documentary evidence in the form of 7/12 extract (Exh.23), certified

copy of injunction, order in Civil Suit No.202/1998 (Exh.47) of Pathardi

Court and copy of decree. She also relied on oral evidence and

argued that the learned trial Judge has properly appreciated the

evidence and learned Additional Sessions Judge should not have

Cri.Appeal 785/2004

interfered. The accused had no possession anywhere near the plot,

still he constructed a shed thereon, which is not in dispute. The Civil

Court has passed a decree directing him to remove the encroachment.

Hence, the conviction under Section 447 of Indian Penal Code should

be restored.

4. Per contra, Pratap Vikhe Patil, learned Advocate h/f Mr R.R.

Karpe for the respondent supported the judgment of the appellate

Court. He argued that in the present matter, the plaintiff failed to

prove his possession over the plot on which the shed of accused is

existing. In the alternative he submits that it is a civil dispute.

5. After hearing the learned Advocate and learned A.G.P. for the

parties and on going through the evidence on record, the only point

for my consideration with my finding is :

"Whether the prosecution has established criminal trespass by

the accused on the land of the informant ?" .... In the negative.

- REASONS -

6. The evidence on record shows that P.W.2 Ashok Bansod had

purchased the said land and has got registered sale deed in his name.

The said plot is adjacent to the S.T. Stand, which is on the northern

side. There is no dispute that the defendant is having his structure.

According to the informant, it is on his land, whereas according to the

accused, it is outside in the open space in between the plot and the

road.

Cri.Appeal 785/2004

7. The informant's contention that on 16.7.2000 for the first time

the accused brought construction material and constructed the shed

is not acceptable. He had already filed suit for injunction. Besides, on

17.5.1999, the accused was served with notice under Maharashtra

Regional Town Planning Act (Exh.39) for removal of his encroachment.

It indicates that the accused was having his tin shed at the said place,

atleast prior to 17.5.1999. It is also not possible that the tin shed

could have been constructed by the accused in a single day. At the

time of drawing spot panchnama, fully constructed tin shed was seen

on the spot.

8. The crucial question is whether the land under the shed of the

accused belong to the informant or not. In this regard, it must be

stated that the informant has admitted that his plot was not fenced by

boundary or wiring. He had sought such permission but there was no

fencing.

9. In the light of specific defence raised by the respondent that his

tin shed was on the open land not belonging to the informant, it was

for the informant to show specifically the location of his northern

boundary so as to show that tin shed was not outside the plot, but on

his land. In this regard, there cannot be any oral evidence to prove

the encroachment. The informant ought to have produced the

following documents:

Cri.Appeal 785/2004

(I) Copy of registered sale deed

(II) Copy of village map

(III) The boundaries shown in the sale deed

(IV) Photographs

(V) The 7/12 extracts etc of the property situated on the northern

side and abutting to the plot no.1-C.

10. It was also necessary to get the said plot measured from a

government measurer, who could have fixed the boundaries of the

plot of the informant. No such documents are produced on record.

The reliance on the decree of injunction and direction for removal of

encroachment is not useful for the simple reason that the injunction

order and direction is only in respect of structure on the suit plot.

There is no finding that the construction of the defendant therein (the

accused) was on the plot of the informant. In absence of such finding,

it is always open to the accused even in the execution to take a stand

that he has not made encroachment. The evidence on record shows

that there was a civil dispute between the parties. The accused and

three others had constructed the sheds and they were contending

that those sheds were not on the plot of the informant. A suit was

also filed by the informant in 1998 for injunction to protect the

possession. In the light of all these facts, the learned Ad hoc

Additional Sessions Judge rightly relied on Manikchand Birdichand

Sharma Vs. The State of Maharashtra 1975 Cr.L.J. 1044,

wherein it is observed :

"Act done or attempted to be done in bona fide assertion of a right, however, ill-founded in law, that right may

Cri.Appeal 785/2004

be, cannot amount to the offence of mischief within Section 425 of Indian Penal Code or the offence of Criminal trespass within Section 441 of the I.P.C."

11. In order to prove the offence of criminal trespass, it was

essential for the informant to show beyond reasonable doubt the

location of his northern boundary. Since the prosecution has not filed

above referred documents, the alleged criminal trespass is not proved

beyond reasonable doubt.

12. It is clarified that the accused might have committed

encroachment, but there is no proof before this Court to give a finding

to that effect and the parties should not be permitted to rely on the

observations in this judgment in other proceedings between them

before the sub-ordinate Court as the observations are made for the

purpose of deciding this proceeding only.

13. With these observations, I hold that the judgment of acquittal