GOPALJEE LAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 13.9.91 passed by the 5th Addl. Sessions Judge, Samastipur, in Cr. Appeal no. 36/3 of 1986/ 1991. The aforesaid appeal was filed against the judgment rendered by Sri S.A. Raza Naqvi, Judicial Magistrate, 1st Class, Samstipur in CR. no. 1052/80, trial no. 35/ 86, whereby and whereunder the respondents were convicted for the offence under sections 379, 323 and 341 IPC.

(2.) THE prosecution case was projected through the complaint petition filed by one Gopalji Lal (appellant) wherein he had alleged that he had purchased a house and land in the name of his wife from one Tapeshwar Shah and others by sale deed which was already in mortgage to the accused -respondents. Subsequently, on the promise of. the respondents, the complainant went to the house of mortgagee (respondents) on 10.11.79 at 7.30 a.m. alongwith some witnesses. However, instead of receiving the mortgage money to redeem the mortgage, the accused - respondents fisted and slapped the complainant and twisted his thumb breaking the same. Before that they had received Rs. 5,500/ - from the complainant for redeeming the mortgage. Neither the mortgage deed was returned to the respondent after making endorsement nor the aforesaid money was returned to him. The complainant went to the police station and gave a written information on the basis of which Rosera P.S. Case no. 9 dated 10.11.79 was registered. However, the police submitted final report and there was protest by the complainant. The court proceeded on the complaint and after cognizance the trial followed.

(3.) THE appellate court disbelieved the story of assault upon the complainant in view of the doctor 'sevidence that he had found only minor injury on the thumb of the complainant, whereas the case was that his thumb was twisted by the accused -respondents. The appellate court also stated that PWs 1 and 2 both were chance witnesses who happened to go to the P.O. and they had seen the complainant in injured condition. These witnesses were certainly only on the point of alleged assault. Of course, the concerned mortgage was neither filed in the court nor any attempt was made by the complainant - appellant to bring on record the concerned mortgaged - deed. The appellate court held that the mortgage -deed was the crux of the case and unless it was brought on record, no reliance could be placed on the sole testimony of the complainant regarding the execution of Sudhbharna (mortgage -deed). So there was no question for the complainant to go to the house of the accused -respondents to get the mortgage -deed redeemed.