MUNSHI AYUB ALI Vs. SK. ABUL HOSSIAN

JUDGEMENT

(1.) Nobody appears for the appellant. Mr. Ghosh, learned Counsel, is requested to appear as amicus curiae to assist the Court. The appeal is directed against the judgement and order dated 12.01.1988 passed by the learned Judicial Magistrate, Arambagh, Hooghly acquitting the respondents of the charge of committing offences punishable under section 379/427 of the Indian Penal Code.

(2.) The prosecution case as alleged in the petition of complaint is to the effect that the appellant was enjoying a land at Dag No. 12 in Mainan Mauja which was allotted to him and his brother by mutual settlement. The land standing on the northern side of the house also belonged to the appellant and he constructed a structure of bamboos thereon. On 14.06.1976 at about 12 a.m. in the night the accused persons formed an unlawful assembly, broke the bamboo construction and took away the bamboos and pieces of palm trees therefrom valued at Rs. 400/-. The matter was informed to Khanakul Police Station and Khanakul P.S. Case No. 8 dated 14.06.1976 was registered. In conclusion of investigation, a final report was filed by the police authorities which was accepted by the learned Magistrate on 18.12.1976. Thereafter the appellant filed a naraji petition which was treated as a petition of complaint against the accused persons alleging commission of offence punishable under section 379/427of the Indian Penal Code. The learned Magistrate took cognizance of the alleged offences and upon examination of the appellant and his witnesses issued process against the accused persons. During pre-charge enquiry, the prosecution examined five witnesses including the appellant under section 244 of the Code of Criminal Procedure. Thereafter the learned Magistrate proceeded to frame charges under section 379/427 of the Indian Penal Code against the accused persons. Accused persons pleaded not guilty and claimed to be tried. Defence of the accused persons was one of innocence and false implication. During trial, they cross-examined the prosecution witnesses to probabilise their defence. In conclusion of trial, the learned Magistrate by judgement and order dated 12.01.1988 acquitted the accused persons of the charges levelled against them. Pursuant to special leave granted by this Court on 22.03.1988, the instant appeal has been preferred.

(3.) P.W. 1 is the complainant of the instant case. He has stated that on the fateful day on 14.06.1976 in the night the accused persons demolished the newly built cowshed and took away bamboo and other valuable articles valued at Rs. 400/-. In cross-examination, he stated that there is number of cases pending between himself and the accused persons and that he is an accused in a criminal case started on the basis of complaint of one Abu Ehia. He further deposed that he has instituted 36 cases against the accused persons. He stated that house of Sk. Karim was situated on the north side of his house. Cowshed was situated on the north-western side of his dwelling house. The home of Jaynal Abedin was situated on the contiguous west of his home. Soleman lived on the contiguous south of his house. House of Gous Mahammad, Salem and Jahiruddin and Anwar Hossian were situated on the eastern side of his home. He further stated that the incident occurred for 5 to 6 hours and he informed the police on the next day at 8 a.m. He also stated that there was another broken cowshed at the northern side of the house at the time of the incident. P.W. 2 is the son of P.W. 1, the appellant. In cross-examination, he stated that during the incident he could not proceed towards the P.O. as he was obstructed near the gate of Ayub Munshi. P.W. 3 is the nephew of P.W. 1. In cross-examination, he stated that he did not live in the village and resided in Calcutta. P.W. 4 is a mistry doing wood work. He stated that he worked for P.W. 1 for raising cowshed with bamboo and wood. In cross-examination, he has stated that the chalaghar was constructed for five days. It was situated on the northern side of the dwelling house of Ayub. P.W. 5 is another son of P.W. 1. In cross-examination he has stated that cowshed was situated on the north of the rear side of the house of Aesa. The house of Aesa was situated on the north-western corner of their home.