KUSUMBEN MAGANJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This criminal revision application filed by the original accused No. 1 arises out of criminal proceedings instituted against three accused persons in the court of the learned Metropolitan Magistrate 13 Court Ahmedabad for the offences under secs. 448 451 read with sec. 114 of the Indian Penal Code wherein the learned Metropolitan Magistrate by his order dated 22/01/1979 acquitted all the accused of the offences punishable under sec. 451 of the I.P.C. He also acquitted accused Nos. 2 and 3 of the offence punishable under sec. 448 of the I.P.C. He however convicted accused No. 1 that is the present petitioner for the offence under sec. 448 of the I.P.C. and awarded sentence of S.I. for one year. The said accused carried the matter further up in appeal to the Court of the City Sessions at Ahmedabad and the learned City Sessions Judge at Ahmedabad by his order dated 23/07/1979 partly allowed the appeal confirming the order of conviction passed against the said accused. He however modified the order of sentence and substituted the sentence of imprisonment till the rising of the court and fine of Rs. 200.00 in default further S. I. for 15 days in place of the original sentence of one years S. I. awarded by the learned Magistrate. He also passed a further order under the provisions of sec. 4 6(2) of the Code of Criminal Procedure (the Code) for restoration of possession of the premises in respect of which the offence was committed by the said accused to the applicant Smt. Maltidasji who represented the deceased-original complainant Venkateshwardasji Gurumadhavdasji who had died in the meanwhile. It is this order of the learned City Sessions Judge which is the subject matter of challenge in the revision application preferred by the petitioner (Original accused No. 1.)

(2.) But Mr. Patel has been on firmer ground with regard to the challenge concerning the order passed by the lower appellate court under the provisions contained in sec. 456 of the Code the material portion whereof so far as it is relevant for the purpose of the question which requires decision in this revision application reads thus:

(3.) Mr. Vaidya the learned Public Prosecutor appearing for the State draws my attention to the evidence of the complainant. In examination-in-chief as it evident from the statement made in para 2 the only case put forward by the complainant is that in his presence inspite of his protest accused Nos. 1 and 2 broke open the staple affixed to the room in which formerly accused No. 1 was staying *** There is no allegation whatsoever that the accused when they were indulging in the said act of breaking open the staple fixed to the room did so by using any force or show of force or by intimidation. But Mr. Vaidya draws my attention to the statement given cut by the complainant in cross-examination in para 6 which reads thus :