Gopaljee Lal vs State of Bihar and Others

S.N. Pathak, J.—This appeal is directed against the judgment dated 13.9.91 passed by the 5th Addl. Sessions Judge, Samastipur in of Appeal no, 36/3 of 1986/ 1991. The aforesaid appeal was filed against the judgment rendered by Sri S.A. Raza Naqvi, Judicial Magistrate, 1st Class, Samstipur in C.R. No. 1052/80, trial No. 35/ 86, whereby and whereunder the Respondents were convicted for the offence under Sections 379, 323 and 341 IPC.

The prosecution case was projected through the complaint petition filed by one Gopalji Lal (Appellant) wherein he had alleged that he had purchased a house and land in the name of his wife from one Tapeshwar Shah and others by sale deed which was already in mortgage to the accused-Respondents. Subsequently on the promise of the Respondents the complainant went to the house of mortgagee (Respondents) on 10.11.79 at 7.30 a.m. alongwith some witnesses. However, instead of receiving the mortgage money to redeem the mortgage, the accused-Respondents fisted and slapped the complainant and twisted his thumb breaking the same. Before that they had received Rs. 5,500/- from the complainant for redeeming the mortgage. Neither the mortgage deed was returned to the Respondent after making endorsement nor the aforesaid money was returned to him. The complainant went to the police station and gave a written information on the basis of which Rosera P.S. Case No. 9 dated 10.11.79 was registered. However, the police submitted final report and there was protest by the complainant. The court proceeded on the complaint and after cognizance the trial followed.

During the course of trial, the complainant Appellant had examined 6 witnesses.P. Ws. 5 and 6 were formal witnesses who brought on record exhibit 2, sale deed, exhibit 3, written report, exhibit 4, protest petition and exhibit 5 formal FIR. P.W. 4 was the doctor who examined the complainant. P.W. 3 was complainant himself and P. Ws. 1 and 2 were so called eye witnesses.

The appellate court disbelieved the story of assault upon the complainant in view of the doctor''s evidence that he had found only minor injury on the thumb of the complainant, whereas the case was that his thumb was twisted by the accused-Respondents. The appellate court also stated that P. Ws. 1 and 2 both were chance witnesses who happened to go to the P.O. and they had seen the complainant in injured condition. These witnesses were certainly only on the point of alleged assault. Of course the concerned mortgage was neither filed in the court nor any attempt was made by the complainant-Appellant to bring on record the concerned mortgage-deed. The appellate court held that the mortgage-deed was the crux of the case and unless it was brought on record, no reliance could be placed on the sole testimony of the complainant regarding the execution of Sudhbharna (mortgage-deed). So there was no question for the complainant to go to the house of the accused-Respondents to get the mortgage-deed redeemed. j

Admittedly P. Ws. 1 and 2 did not say a word regarding the mortgage deed. Their evidence was with respect to the assault upon the complainant. It was only the complainant''s evidence regarding the sudhbharna deed. The same having been not proved by any cogent and reliable evidence, the appellate court opined that there was no good occasion for the complainant to go to the Respondent''s house. The aforesaid finding does not appear to be based on a findings not on the circumstances on record. This finding does not also appear to be perverse. P.W. 1 was disbelieved because he came to the PO after the alleged occurrence of assault upon the complainant-Appellant had taken place although he claimed to be eye-witness to the occurrence. P.W. 2 was also a chance witness. The appellate court, on the basis of total evidence on record, held that there was no sufficient and unimpeachable evidence to sustain the conviction of the Respondents. So the order of acquittal was passed.

An appeal against acquittal can be sustained only when there is apparent perversity in the finding recorded by the court concerned. I do not think that in the circumstance of the case, finding recorded by the 5th Addl. Sessions Judge suffers from any perversity or unreasonableness although a different view may be taken. No appeal can be sustainable even though the court of appeal takes a different view in the fact and circumstances of the case. u/s 386 Code of Criminal Procedure in case of an peal against acquittal, when the Appellant''s lawyer does not appear, the court is not under any obligation to hear him by way of necessity. State Lawyer was heard.

In the result, there is no merit In this appeal. It is, accordingly, dismissed.