MANIKCHAND BIRDHICHAND SHARMA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE accused-applicant has filed this revision application aggrieved by the order of conviction and sentence passed under Section 427. Indian Penal Code, against him sentencing him to suffer rigorous imprisonment till the rising of the Court and to Pav a fine of Rs. 100/or in default to suffer rigorous imprisonment for one month bv the Judicial Magistrate First Class, Khamgaon in summarv Case No. 1952/1971 and confirmed by the Additional Sessions Judge, Khamgaon in Criminal Appeal No. 137 of 1972 filed bv the accused-appellant. The facts in brief are as under: The complainant, who is opponent No. 2, had filed a private Criminal complaint in the Court of the Judicial Magistrate First Class, Khamgaon, against the accused under Sections 323, 448 and 427 of the Indian Penal Code. The allegations in the complaint were that the complainant's deceased father had Purchased houses Nos. 303 and 304 situate in ward No. 25 on September 1'. 1967 from one Yeshodabai Vyankat of Khamgaon. After the purchase, he had started repairs to the compound wall sometimes by the end on April 1670. When the work of construct-but Ike compound walls was in progress on April 30, 1970. the accused who is a tenant in the house of the neighbour of the complainant Rambhau Raghunath Patil and who had absolutely no right, had demolished a Part' of the walls on both the sides approximately of the length of 4'. A police report was lodged immediately on Mav 1, 1970, but no action was taken on the same. Hence the complainant's father aerain started construction on Mav 21. 1970. However on May 22, 1970, when the complainant's father had gone out, the accused demolished a part of those walls. This was seen bv the wife of the complainant, who. it was alleged, was assaulted and the complainant suffered a damage, of Rs. 100/ -.

(2.) THE learned Magistrate, after verification of the complaint bv the complainant, issued process under all the above sections. However, at the time of framing the charge, the charge was framed under Section 427 of the Indian Penal Code and the accused was discharged under Sections 323 and 448 of the Indian Penal Code. Before the learned Magistrate on behalf of the complainant, Complainant's wife (P. W. 2) was examined. Photographer Vishnu (P. W. 1) was examined who has-produced the photographs of the wall which was constructed and the part of the wall which was demolished. They are at Exs. 8 and 9 -. , So also their negatives were produced. The complainant also examined himself. The complainant was- cross-examined and it was suggested to the complainant whether the accused was occupying kotha for the last 20 years. From the answer given by the complainant, it appears that kotha was- in occupation of the accused. However, some sundry articles were kept by the accused in that kotha. He stated that he was not knowing whether that kotha was used bv accused for the last 20 years. From the averments in the complaint, the propertv has been purchased in the year 1967. Therefore the complainant may not be knowing. It was further suggested that the accused was using the vacant site as a passage before this incident. However, the complainant denied that fact. In a statement under Section 342. Code of Criminal Procedure, the accused denied to have demolished the walls. ' He had pleaded alibi. He, however, asserted that since last 20 or 22 years, he was usinp the vacant courtyard behind the houses of the complainant 'for goins to his kotha. In support of his. contention, he had examined two defence witnesses. One Sk. Karim (D. W. 1) was the mason who was employed bv the complainant. He had stated that the complainant himself had kept the opening. The learned Judicial Magistrate First Class rightly disbelieved this witness, in view of the photographs produced. However, the accused had also examined another witness who was the son of the predecessor-in-title of the complainant. From his mother the complainant's lather had purchased this pro-Pertv in the year 1967. That witness admitted that he sold the two blocks to the complainant. So also he sold some block to Khaire. He further asserted that the accused used to have egress and ingress over the site on the rear side to the complainant's house. This passage was bv the side of the complainant's latrine. He was seeing this user since last 22 years. The learned Judicial Magistrate did not disbelieve his evidence. |n paragraph 3. the learned Magistrate hfs observed; "he (accused) cannot be allowed to do so under the assumed civil right of easement, D, W. Madhukar, no doubt, stated that the accused is using this site as passage since last 22 years. Civil Rights, whether assumed or real, cannot be investigated in tliis Court. " The learned Magistrate appears to have mis-interpreted the law. It is true that he has not to adjudicate upon the civil rights of the parties, but he has to find out whether the contention of accused was a bona fide assertion of a right and whether he did the act in the bona. fide assertion of the right. The learned Magistrate did not. consider this aspect of the matter. However, he held that even if the accused had a right, he was not entitled in law to demolish the walls. There was a damage of more than Rs. 60/ -. Therefore, he held that the accused had committed an offence under Section 427 of the Indian Penal Code and in that view he convicted and sentenced the accused, as stated above.

(3.) THE learned Additional Sessions Judge, while confirming the appeal, has made one factual wrong observation in paragraph 11, He'stated that the evidence of Madhukar was also not believed bv the lower Court. This is not correct from the observations made by me above.