Smt. Usha Rani vs Dharambir and Others

Rajan Gupta, J.—The instant criminal appeal has been preferred by the appellant/complainant against order of acquittal dated 8.12.2000 passed by Judicial Magistrate Ist Class, Ambala City in a criminal complaint case.

The brief facts of the complaint filed before the JMIC, Ambala City are that the appellant-complainant is the mother of minors Rajesh Kumar and Sanjay Kumar, sons of Dev Kumar. Dev Kumar had one ancestral house situated at village Naneola which was jointly owned by Rajesh Kumar, Dev Kumar and Sanjay Kumar being members of joint Hindu family. However, the complainant was living separately from her husband in that house with her sons. Dev Kumar (husband of complainant) had fallen in bad company and had started proclaiming that he would turn the complainant and her sons out of the house and would alienate the same. The complainant out of fear, filed a civil suit for permanent injunction, which was decreed in her favour in the year 1982 and Dev Kumar was restrained from dispossessing the complainant and her minor sons from the house and also alienating it. One of the rooms of the house was in occupation of one Ram Chander who had been living there since 1972 as a tenant. Two months prior to filing of the complaint, Dev Kumar and Mahesh Kumar took co-owner Sanjay Kumar to Patiala on the pretext of getting his passport prepared and obtained signatures of Sanjay Kumar on some blank papers. Later on Sanjay Kumar came to know that he had been deceived by Dev Kumar and Mahesh Kumar as they had fabricated some documents in respect of the house in question. He told the entire story to his mother (complainant). Thereafter, on 19.6.1991 at about 6.00 P.M., all the accused came armed with lathies and gandasies and tried to dispossess the complainant and her sons from the house and also threatened them that they would be killed. The accused were shown decree of the court, but they pushed the complainant and her sons out of house and also turned Ram Chander out of his rented room. They destroyed the bhatties (Kiln) of Ram Chander and also destroyed the ''chapper'' belonging to complainant and caused a loss of Rs. 2000/- to her. The complainant reported the matter to the local police and also filed complaint before the SSP, Patiala, but no action was taken. As such, the instant complaint was filed before the JMIC.

The learned Magistrate on the basis of preliminary evidence led by the complainant summoned the accused to face trial under Sections 457, 452, 427, 506, 120B read with Section 34 IPC vide its order dated 5.2.1992.

On the basis of pre-charge evidence in which Ram Chander (PW1), Usha Rani (PW3) and Sanjay Kumar (PW4) supported the claim of the complainant, charges were framed on 24.5.2000, to which the accused pleaded not guilty and claimed trial. Since accused Dev Kumar failed to appear before the court below despite service, he was declared proclaimed offender. After framing the charge, PW3 Usha Rani and PW4-Sanjay Kumar were tendered for further cross examination.

Statements of the accused were recorded u/s 313 Cr.P.C. Entire inciminating evidence was put to accused, to which they pleaded not guilty and claimed false implication. They also pleaded that the house in dispute had been purchased by Dev Kumar, as such, he was the sole owner. Since the complainant had enmity with Dev Kumar, she had filed a false case against the accused. In the defence, the accused examined Babu Ram, DW1 and proved copy of family settlement, Ex.D1. The learned Magistrate, after going through the evidence led by the parties, acquitted the accused of the charge.

The main point on which the learned Magistrate acquitted the accused is that Usha Rani had categorically admitted in her cross-examination that she was married to Ajaib Singh in the year 1983, i.e. 15 years before the filing of the instant complaint and a girl was born to her from the loins of Ajaib Singh in 1985. Ever since her marriage she was living with Ajaib Singh in his house situated outside the abadi of village Naneola and she had a telephone connection in her name in the said house belonging to Ajaib Singh. She also admitted that she had a ration card of same house belonging to Ajaib Singh. This clearly proved that the complainant was living with Ajaib Singh in that house. As such, the complainant failed to proved that she was living in the house in dispute from which she alleges that she was turned out by the accused in a forcible manner. She also admitted in her cross-examination that Rajesh Kumar and Dev Kumar had constructed their separate houses and were living in their separate houses. She also admitted that she was living with Ajaib Singh (her husband) in his house.

I have heard learned Counsel for the appellant and gone through the case record carefully.

I find no illegality or infirmity in the impugned judgment of acquittal, inasmuch as, the story of the complainant appears to be improbable. It is quite unlikely that the complainant after contracting her second marriage with Ajaib from whose loins she gave birth to a daughter in his house and having ration card, telephone connection in the same house, would live in the house of her previous husband. In these circumstances, the question of her having been turned out of the house in question by her previous husband (accused) by criminally intimidating and committing house trespass does not arise.

I find no substance in the grounds taken in the present appeal against acquittal, which deserves to be dismissed.

Ordered accordingly.