RAJBANSHI THAKUR Vs. CHANDEY JHA

JUDGEMENT

(1.) This is an application filed by the petitioner, who was the complainant in the case, for setting aside the order o the lower appellate Court in regard to the direction made by the trial Court for restoration of certain property under Section 522, Criminal P. C. The dispute in question related to plot No. 1529, on which, it is alleged, stands the residential house of the petitioner, be having no other place of abode except the house in question. The petitioner's case is that he had been coming in possession of the house and the land since long and bad been residing therein with his two minor nephews. On 31-5-1949, when the two minor nephews were away to their nanihal and the petitioner himself had gone to the local Registry Office at Balsand in order to register certain deed after locking the house, the opposite party, in the absence of the petitioner, along with one Loknath Thakur raided the house with deadly weapons, broke open the lock of the house and forcibly entered and occupied the house and looted the articles therein. One of the prosecution witnesses, prosecution witness 2, who saw the occurrence, informed the petitioner about it. On receiving the information, the petitioner rushed back to his house and found the accused persons there sitting armed with deadly weapons. He says that he attempted to go inside the house, when the accused persons threatened to assault him. The petitioner then lodged the first information report and, after investigation, the accused were put on trial under Sections 380, 448 and 464, Penal Code.

(2.) The defence of one of the opposite party and Loknath Thakur was that they had nothing to do with the land or the house and had taken no part in the occurrence whereas the defence of two other accused persona, Chandey Jha and Taranand Jha, was that plot No. 1529 claimed by the petitioner and plot NO. 1530 as also the house standing on them belonged to the opposite party and, by partition, plot No. 1529 and the house standing thereon were allotted to the share of opposite party Chandey Jha and that he was in possession of the house accordingly. The accused denied the occurrence as alleged by the prosecution and, on the other hand, stated that the petitioner had forcibly tried to enter the house and committed assault and looted all the properties. There was a counter ease also started on the allegations made by the accused opposite party, but it was found to be fake and a proceeding under Section 211, Penal Code against Chandey Jha is pending, arising out of that counter case.

(3.) In regard to the trial of the accused per. sons based upon the information lodged by the petitioner, the trial Court found that the prosecution case had been fully established, and convicted the accused opposite parties under Sections 380, 454 and 448, Penal Code. The trial Court, however, acquitted Loknath Thakur giving him the benefit of doubt. The trial Court further directed that, as the complainant petitioner had been deprived of his house by criminal force, ha should be put in possession under Section 522, Criminal P. C. Against that order of sentence and conviction passed by the trial Court, there was an appeal to the learned Additional Sessions Judge, who confirmed the order of sentence and conviction passed by the trial Court, The Court of appeal below held that: