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2016 DIGILAW 1315 (JHR)

Kishore Kumar Deshmukh v. State of Bihar

2016-08-24

SHREE CHANDRASHEKHAR, VIRENDER SINGH

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JUDGMENT : Per Shree Chandrashekhar, J. Aggrieved of judgment and order of acquittal dated 05.08.1998 in Case No. C.1.471 of 1994, the complainant has filed the intant appeal under Section 378 (4) of the Code of Criminal Procedure, which was admitted for hearing vide order dated 11.03.1999. 2. On 03.08.2016, when the matter was taken up for hearing, the following order was passed : “Since the counsel for the either side has not come present today, in the interest of justice adjourned and list again on 17.08.2016. Registry to inform the learned counsel for both the sides of the date fixed. We, however, make it clear that if no assistance is rendered on the next date of hearing, the instant matter shall be considered finally.” 3. Today also, no one appears on behalf of the complainant appellant, however, with the assistance of Mr. Pankaj Kumar, the learned APP and Md. Mokhtar Khan, the learned counsel for the respondents, we have gone through the entire evidence on record. 4. After the summons were issued to the accused persons, during the trial the complainant examined 5 witnesses and the accused persons have also examined 4 witnesses. 5. The date of alleged occurrence is 02.11.1994, when the accused persons allegedly assaulted the complainant and his brother in presence of their neighbours. It has came on record that in Golmuri P.S. Case No. 215 of 1994 registered for the same occurrence the complainant and his brother namely, Vijay Kumar Deshmukh are accused for offence under Section 452, 307, 341 and 323 IPC and they were taken in custody by the police. The instant complaint case was lodged by the complainant on 29.11.1994. The dispute between the parties relates to the possession and ownership over the quarter no. 364, line no. 24A/Block, Tuiladungri. The complainant asserted that the said property was gifted by Smt. Kachari Bai and Smt. Dharma Bai on 1985, however, the trial court has noticed that no gift deed was produced by the complainant before the court. On the other hand the defence taken by the accused persons is that, the said property was conveyed in favour of Ajay Kumar Sinha by a sale deed on 01.12.1990. On the other hand the defence taken by the accused persons is that, the said property was conveyed in favour of Ajay Kumar Sinha by a sale deed on 01.12.1990. The trial court has recorded a finding that on the alleged date of occurrence the property was in possession of the accused persons, and as such, the story of their dispossession floated by the complainant was not believable. No independent witness was examined by the complainant, though he has asserted that several neighbours had assembled at the place of occurrence. The trial court has also taken note of the criminal case filed by the accused which was pending before the sessions court at the time when the judgment of acquittal was recorded in the instant case. 6. We have once again scanned the entire evidence on record. The defence witnesses have proved the sale deed in the name of accused Ajay Kumar Sinha and they have also corroborated the defence story of assault upon the accused persons by the complainant side. Even the persons who allegedly executed the gift deed namely, Kachari Bai and Dharma Bai were not examined by the complainant. The property in dispute has been mutated in the name of accused Ajay Kumar Sinha. The accused persons successfully proved by leading cogent evidence that they were in possession of the property in dispute. This fact itself is sufficient to disbelieve the reason and manner of occurrence as disclosed by the complainant in the complaint case. The trial court has carefully evaluated the evidence led by both the parties and has come to the conclusion that the complainant has failed to prove the criminal charges against the accused persons. 7. Considering the aforesaid facts and the evidence discussed hereinabove, we find no merit in the instant appeal, which is dismissed.