SYED MD ABDUS SAMAD Vs. MD KALIMUDDIN

JUDGEMENT

(1.) This appeal is against the judgment of acquittal passed by the Judicial Magistrate, 1st Class, Patna under Complaint Case No. 179C of 1998/Tr. No. 39 of 1992 whereby the O.P. No.1 Md. Kalimuddin has been acquitted of the charges under Sections 448 and 352 of the Indian Penal Code. 1.The prosecution case was that on 11.4.1988 at 4:30 P.M., the O.P. No.1 forcibly entered into a room of the disputed house premises which was in possession of the appellant/complainant Syed Md. Abdus Samad who is now dead and his heirs are on record and that when the complainant had protested to it he was jostled away by the O.P. No.1. The complainant had claimed his title and possession over the land on the basis of purchase of house premises from one Md. Hasan @ Anju by virtue of a sale deed dated 14.12.1966 and both the parties were on acute litigating terms and several civil cases were admittedly pending between them and during trial, lot of papers were proved before the trial court in connection with those cases between the parties.

(2.) In support of his case, the appellant/complainant had cited as many as nine witnesses in the complaint petition and they were stated to be the neighbours of the locality. But during trial which was commenced in the year 1998, the complainant examined only one witness P.W.1 Md. Shohail on 14.4.1991. It was due to non -production of the witnesses that the trial court closed the complainant's evidence on 24.4.1991. The complainant moved a Criminal Revision No. 340 of 1991 before the learned District and Sessions Judge wherein an opportunity was allowed to the appellant/complainant to produce further witnesses. As a result of the opportunity, the complainant produced himself as P.W.2 but no other witness was examined by him on the point of occurrence.

(3.) The learned trial court considered the evidence of the two witnesses. The two witnesses particularly the complainant was examined in great details. On consideration of the evidence and the various circumstances in the evidence, the trial court came to a finding that the two witnesses were highly interested ones and it was not safe to place reliance on their evidence. The learned trial court also considered that on the date of occurrence when the O.P. No.1 was alleged to have entered into a room of the disputed house there was a proceeding under Section 144 Cr.P.C. which was made absolute against the complainant and had been vacated against the O.P. No.1. It was also considered that despite there being a prohibitory order, the appellant/complainant did not inform the authority promulgating the prohibitory order nor took any steps before such authority for violation of his prohibitory order.