GANGA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition filed under Section 397/401 Cr. P.C. has been directed against the judgment dated 16-9-89 passed by the learned Additional Sessions Judge No. 2, Jodhpur, whereby he ordered for the abatement of the appeal filed by Champa Lal due to his death; directed that the fine imposed on Champa Lal by the learned Judicial Magistrate No. 4, Jodhpur be recovered from the properties left by him and confirmed the order of the learned trial Magistrate passed under Section 456 Cr. P.C. for the restoration of possession of the disputed premises.

(2.) Succinctly stated the martix of the case leading to this revision petition is that in execution of an ex parte decree dated 5-10-74 for ejectment passed by the learned Additional Civil Judge, Judhpur against tenants Ram Pratap and Kashi Ram, landlord non-petitioner No. 2, Rajendra Kumar, was given the physical possession of the rooms and a stair case on 14-1-1975 by the Sales amin. Rajendra Kumar put bags of 'GUR' therein and locked the stair case. It is alleged that on 17-1-1975 when Rajendra Kumar went inside the said premises to carry out certain repairs, Champa Lal along with co-accused Virendra Singh, Kamlesh had Parasram illegally and forcibly dispossessed him, therefrom. Champa Lal also threw a stone towards Rajendra Kumar and tried to be labour him. Thereupon, on the report of Rajendra Kumar, Crime No. 26 was registered at Police Station Udai Mandir against Champa Lal and others. After investigation, a chargesheet was filed before the Magistrate. The learned Magistrate after trial, by his judgment dated 20-9-1964 convicted Champa Lal, Kamlesh, Virendra Singh and Parasram for the offences under Sections 453 and 427 IPC and sentenced each of them for one year's rigorous imprisonment and a fine of Rs. 100.00 under each count and in default, to further undergo simple imprisonment for three months. He, however, gave benefit of probation to co-accused Parasram keeping in view his old age. The learned Magistrate also passed an order under Section 456 Cr. P.C. directing that the possession of the disputed premises be restored to Rajendra Kumar within one month. Aggrieved by the said judgment, Champa Lal filed appeal No. 55/85. Co-accused persons also separately filed appeals against the said judgment. During the pendency of appeal, Champa Lal expired on 20-6-88. The learned Additional Sessions Judge, Jodhpur, after hearing the parties, by his judgment dated 16-9-89 held the appeal against the conviction had abated under Section 394 Cr. P.C.; and ordered that the fine imposed against Champa Lal be realised from the property left by him. He also decided the appeal against the order passed under Section 456 Cr. P.C. on merits and upheld the order of the learned trial Magistrate. Hence, the legal representatives of late Champa Lal have filed this revision petition.

(3.) I have heard learned counsel for the parties and the learned Public Prosecutor for the State at length and carefully perused the record of the lower Courts.