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2013 DIGILAW 99 (PAT)

Shree Narayan Singh v. State of Bihar

2013-01-22

ASHWANI KUMAR SINGH

body2013
JUDGMENT (ORAL) Ashwani Kumar Singh, J. 1. Heard learned counsel for the appellant. 2. The present appeal has been filed under Section 378(4) of the Code of Criminal Procedure in pursuance of the leave granted by this Court on 14.10.2004 in S.L.A. No. 52 of 2003. The appeal is directed against the judgment of acquittal dated 14.08.2003 passed by the learned Judicial Magistrate, 1st Class, Munger in Complaint Case No. 387(C) of 1999 corresponding to Trial No. 68 of 2003. 3. On 19.06.1999, the appellant filed a complaint vide case No. 387(C) of 1999 before the learned Chief Judicial Magistrate, Munger alleging therein that on 27.01.1998 the complainant's Karpardaj Udneshwar Jha noticed that the accused, Nos. 1 and 2. i.e., respondent Nos. 2 and 3 with the help of some persons were removing bricks from the wall surrounding the land. i.e. 180 square feet of land bearing plot No. 5773 in Ward No. 14 under Munger Municipality belonging to the appellant and keeping them in their own land. When the Karpardaj Udneshwar Jha objected to the theft being committed by the accused Nos. 1 and 2 they asked him to go away. Since the appellant was out of station. Udneshwar Jha did not go to the police station. On 30.01.1998, when the complainant returned home Udneshwar Jha gave information to him regarding the occurrence. On 31.01.1998 the complainant sent legal notice through his advocate to the accused Nos. 1 and 2. According to the complainant the land in dispute belongs to the Trust Estate and it is at present being used by the Munger Chakchhu Dan Samiti (hereinafter referred as "the Samiti"). It is also stated that against the judgment and decree dated 28.09.1996 passed by the learned Sub Judge, Munger in Title Suit No. 49 of 1981 the appellant has filed appeal before the High Court which is pending disposal. 4. According to the complainant Hridayanand Sharma the accused No.3 is the Secretary of the Samiti and it was his responsibility to look after the premises belonging to the complainant and since he did not make any attempt to stop the theft of the bricks nor made any attempt to prevent encroachment in the land in dispute. it appeared that the accused Nos. 1 and 2 had got consent of accused No.3 and they were in connivance with each other. According to the complainant the accused Nos. it appeared that the accused Nos. 1 and 2 had got consent of accused No.3 and they were in connivance with each other. According to the complainant the accused Nos. 1 and 2 came to his house and stated that they would return the 3,000 to 4,000 bricks taken by them and even break the 'chajja' (balcony) of their house which they had extended to the land of the complainant. Later, after receiving the legal notice. They again came to the house of the complainant and requested not to institute any case as they would comply with their undertaking. On 18.06.1999, when the accused Nos. 1 and 2 refused to remove the 'chajja'. they went to the police station and informed officer-in-charge who after listening to the appellant asked him to go to the Court and institute a case. 5. The learned Chief Judicial Magistrate, Munger on receipt of the complaint petition transferred the case to the Court of the learned Judicial Magistrate, 1st Class, Munger who after making enquiry under Section 202 of the Code of Criminal Procedure summoned only accused Nos. 1 and 2 to face trial for the offence under Section 379 of the Indian Penal Code. On appearance, the accused persons were charged for committing offence under Section 379 of the Indian Penal Code. They pleaded not guilty to the charge and claimed to be tried. 6. In course of trial, the appellant examined two witnesses, namely. PW 1 Udneshwar Jha and PW 2 Shree Narayan Singh, the appellant himself. . 7. On behalf of the accused respondent Nos. 2 and 3 also two witnesses namely. D.W.1 Sahdeo Prasad and D.W.2 Ashok Kumar were examined. 8. The learned Magistrate after holding the trial acquitted the accused persons by judgment dated 14.08.2003. The aforesaid judgment is under challenge in the present appeal. PW 1 Udneshwar Jha has stated in his examination-in-chief that from 27.01.1998 to 30.01.1998 the accused persons took away bricks of the complainant Shree Narayan Singh with the help of labourers. When he objected the accused persons threatened him. When the complainant returned home. he told him about the occurrence upon which the complainant went there and asked about the incident. The accused persons assured the complainant to return his bricks and to dismantle enhanced portion of the balcony of house. In cross-examination. he admits that he is Karpardaj of the complainant. When the complainant returned home. he told him about the occurrence upon which the complainant went there and asked about the incident. The accused persons assured the complainant to return his bricks and to dismantle enhanced portion of the balcony of house. In cross-examination. he admits that he is Karpardaj of the complainant. He also states that Hridayanand Sharma who is the Secretary of the Samiti and who looked after the properties of the Samiti did not raise any objection. 9. PW 2 Shree Narayan Singh the complainant/appellant has stated in his examination-in-chief that the Occurrence took place from 27.01.1998 to 30.01.1998. He has stated that on 30.01.1998 his Karpardaj Udneshwar Jha informed him that on 27.01.1998 the accused persons had broken his boundary wall and took away 4,000 bricks. When objected the accused persons compelled him to leave the place of occurrence. On 30.01.1998. he sent legal notice to the accused persons through his lawyer. He has further stated that the land in question belongs to the Trust of Rai Bahadur Dilip Narayan and he- is the Managing Trustee of that land. The trust had given the land to the Samiti for the time being. The Samiti had filed Title Suit No. 49 of 1981 which is still pending in the Court of law. He states that Hridaynand Sharma is the Secretary of the institution and owes liability to protect the property of the institution but he did not take any step in this regard. According to him, after receiving legal notice both the accused persons opposed him and assured him to remove their illegal possession and construction and to return his bricks. On 18.06.1998, he went to the place of occurrence and reminded the accused persons regarding promise made by them to him but the accused persons did not pay any attention to him. On 19.06.1999, he went to the police station but the police refused to register any case and thereafter, the complaint was filed before the learned Chief Judicial Magistrate, Munger. 10. The case of the defence is that the accused persons have falsely been implicated in the present case. The allegation of committing theft of bricks of boundary wall is totally false. The complainant/appellant failed to produce any document relating to the ownership' and possession of the boundary wall in question. There exists admitted land dispute between the parties. 11. 10. The case of the defence is that the accused persons have falsely been implicated in the present case. The allegation of committing theft of bricks of boundary wall is totally false. The complainant/appellant failed to produce any document relating to the ownership' and possession of the boundary wall in question. There exists admitted land dispute between the parties. 11. I have heard learned counsel appearing on behalf of the appellant and perused the records. Admittedly, the occurrence took place between 27.01.1998 to 30.01.1998. The complainant/appellant came to know regarding the occurrence on 30.01.1998. However, the complainant was filed the case after more than 17 months, i.e., on 19.06.1999. The complainant has tried to explain the delay in filing the complaint but such an inordinate delay in filing the complaint makes the prosecution case suspect. It is well settled that an inordinate and unexplained delay in filing the complaint makes the prosecution case tainted and inference can be drawn that such complaint has been filed after due deliberations, consultations and discussions. It would be unsafe to rely on such belated complaint. 12. I also find that apart from Udneshwar Jha. One Dhaneshwar Mandal was also cited as a witness in the complaint but said Dhaneshwar Mandal was not examined in course of trial. There is no explanation for his non-examination. 13. I further find that the prosecution has failed to bring on record material evidence relating to the ownership and possession of the boundary wall. 14. Taking all these facts into consideration the trial Court acquitted the accused persons. The trial Court has given clear cogent and convincing reasons for recording the judgment of acquittal. The findings of the trial Court are neither erroneous nor perverse. I find no merit in the present appeal. It is dismissed accordingly. Appeal dismissed.