Shiv Ratan Prasad Gupta, Shiv Ratan Prasad Gupta vs State Of Jharkhand

Heard learned counsel for the petitioner and learned APP. Despite valid service of notice on the private opposite parties, they have not chosen to

enter their appearance and contest.Â

Petitioner has sought special leave to appeal in terms of Section 378(4) of the Code of Criminal Procedure, 1973 against the judgment of acquittal

dated 13.09.2011 passed in Criminal Appeal No. 65 of 2009 by the learned court of Sessions Judge, Dhanbad whereunder the accused/ O. P. Nos. 2

to 5 were acquitted of the charges under section 448 of the Indian Penal Code. The appeal was allowed  and the conviction recorded by the

learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 465 of 2003 (T.R. No. 569 of 2009) vide judgment dated 07.02.2009 was set

aside.Â

The complainant alleged before the learned trial court that the accused persons on 20.3.2003 broke open the lock of Shop No. 11,12 and 27 of

the complainant at Gupta market, Digwadih Bazar in which Aata Chakki and furniture were kept, with intent to commit theft and also committed theft

of articles worth Rs. 25,000/-. Since no action has been taken by the police, he filed complaint case. Accused persons were summoned after solemn

affirmation and enquiry. On their appearance, charges were explained to them under section 448 of the IPC to which they pleaded innocence and

claimed to be tried.Â

Complainant examined two witnesses C.W. 1 Shiv Ratan Prasad Gupta and C.W. 2 Abhishek Kumar Gupta. After closure of their evidence,

statement of accused persons was recorded under section 313 of the Cr.P.C. to which they pleaded innocence. They examined D.W. 1 Ram Kishun

Gupta.Â

Learned trial court on appraisal of the evidence on record, came to a finding that defence could not prove any document to show tenancy. On the

other hand, C.W. 1 and C.W. 2 clearly corroborated the allegations of trespass by them in the shops in question. As such, they were convicted of the

charges and sentenced to undergo rigorous imprisonment of one year.Â

Learned appellate court examined the ingredients of the offence under section 448 of the IPC. The essential ingredients thereof required the

complainant to show possession of the property and that accused entered into or upon such property with intent to commit offence or intimidate or

insult and annoy a person in possession. Learned court, therefore, thereafter proceeded to see whether complainant was actually in possession of the

property and whether the evidence adduced was sufficient to prove the ingredients of the offence. The appellate court examined the evidence

adduced by the complainant. Upon scrutiny of the statement of C.W. 1, he observed that the complainant during his cross examination had stated that

shop no. 12 and 27 are in possession of the accused persons and he had not filed any case. Partition suit was decided against him and appeal was also

dismissed by the Hon’ble High Court. He admitted that he collected rent from Nunudih Market and did not take rent of Gupta Market. Title

Partition Suit No. 55 of 1990 was filed for partition of Gupta Market and in that partition suit, his mother and brother were also parties. M.P. Case

No. 536 of 2003 was dismissed by the SDO, Dhanbad and then he filed complaint case. He could not remember whether M.P. Case No. 538 of

2003 was filed for the occurrence of 20.03.2003. He showed his unawareness that Subansh Pandey is tenant of Ram Kishun Gupta and he has taken

Rs. 65,000/- as security.Â

C.W. 2, Abhishek Kumar Gupta, son of complainant supported his version but did not give number of shop in his chief. During cross examination,

he deposed that Jaharuddin and Deepak Verma were doing business in the same shop and used to give rent to his uncle Ram Kishun Gupta. He stated

that his father collected rent of 9 shops of Nunudih which were constructed by his grandfather Ram Chandra Prasad. Flours Mill in shop no. 11 was

closed after death of his grandfather in 1988.Â

D.W. 1, brother of the complainant deposed that Jaharuudin Khan was a tenant of shop no. 11, Subansh Pandey a tenant of shop no. 12 and

Deepak Verma, tenant of shop no. 27 of Gupta Market. He collected rent of the shops. On 20.03.2003, he was in the house and at that day between 9

to 12 p. m. no occurrence took place in the market. Property of his father was partitioned in case no. 55 of 1990. He had agreements with the tenants.

These three persons were his tenants. Appellant also filed certified copy of order sheets of M.P. Case No. 538 of 2003, Certified copy of joint

compromise petition and decree of partition suit no. 55 of 1990 passed by the court of Sub Judge-1, Dhanbad.

Learned appellate court, on the basis of these documents i.e. judgements and decree, which were public documents though filed during appeal,

came to a finding that the property mentioned in Schedule-A, Item No. 1 and 2 of the plaint, Digwadih No. 10 including all movable or immovable

property had fallen in the share of Smt. Prema Devi, Ram Kishun Gupta and Gandhi Prasad Gupta. Complainant had no claim and share in the said

property. House of the market and landed property situates in Item No. 3 and 4 of Schedule-A of plaint, Nunudih Mauza had fallen in the share of

Shiv Ratan Prasad Gupta and defendants had no claim and share. Final decree passed by the learned Sub Judge in Title Partition Suit No. 55 of 1990,

described two storied building comprising of 28 shops room in ground floor and residential flats in the first floor which is portion of plot no. 2800,

Khata No. 135, Mafuza- Jorapokhar. Item No. 2 described therein all the piece and parcels of land with all structures comprising of two storied

building having 13 shops room in ground floor and residential flats on first floor in the portion of Plot No. 2800, Khata No. 135 in the share of Prema

Devi. Item No. 3 and 4 described all structure standing on Khata No. 27, Plot No. 737. Final decree also described that Chakki in Digwadih Bazar

was looked after by Ram Kishun Prasad Gupta. The decree was passed on compromise and the property of the place of occurrence had fallen in the

share of Ram Kishun Gupta, his mother Prema Devi and brother Gandhi Prasad Gupta. Certified copy of order sheet of M.P. Case No. 530 of 2003

revealed that proceeding initiated under section 144 of the Cr.P.C. by Shiv Ratan Prasad Gupta against Subansh Pandey was dropped on the ground

that Title Partition Suit No. 55 of 1990 had decided the rights of the parties. No other document with regard to possession of land had been

produced by the complainant. At the same time, learned appellate court found that as per the case of the complainant, occurrence was seen by 20-25

persons but none of the independent witnesses had been examined. On appreciation of the material on record and the public document produced in

appeal, being certified copy of joint compromise petition, order sheet of M.P. case, decree in the suit  between the complainant and his

family members revealed that D.W. 1, brother of the complainant stated that accused persons were his tenants. Shops were in the share of mother

and brother of complainant. Complainant got property of Nunudih. There was earlier dispute between the parties in respect of which proceedings

were initiated in the court of learned SDM. There was enmity between complainant and the opposite parties. Though complainant had filed case under

several sections alleging theft of Flour Mill and furniture but no cognizance was taken in respect thereof by the learned court. As such, the evidence

on record were not consistent to establish the guilt of the accused. The accused persons were acquitted of the charge.Â

Learned counsel for the petitioner has questioned the finding of the learned appellate court and compare it with that of the trial court. He submits

that the documents in the nature of order sheet of M.P. Case No. 538 of 2003, decree and Joint Compromise Petition of Partition Suit No. 55 of 1990

passed by the learned Sub Judge-1 were taken in appeal without giving chance of rebuttal by the complainant.Â

These material documents were not before the trial court, therefore, the finding of the appellate court suffers from error in the appreciation of

evidence on record and consideration of documents which were not adduced during trial by the accused persons.

We have considered the submission of learned counsel for the petitioner and the APP, examined the impugned judgments and also findings

rendered by the learned trial court on this score. On perusal of the discussion made both by the learned trial court and by the appellate court, we are

of the opinion that the documents taken on record by the appellate court were public documents which clearly were material to the issue in

controversy and showed that this accused persons were in fact tenants of the brother of the complainant. Moreover, there were no independent

witness to corroborate the findings of illegal house trespass at a period of time between 9 a.m. to 12.30 p.m. in the first half of the day. We, therefore,

do not find any ground made out by the petitioner to grant special leave to appeal. It goes without saying that the order passed in appeal confine itself

to the facts of the case. Accordingly, this petition stands dismissed.Â