Full Judgment Text
1
THE HIGH COURT OF JUDICATURE AT BOMBAY IN
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 141 OF 2000
The State of Maharashtra,
through Public Prosecutor, Appellant/orig.
High Court, Aurangabad. complainant
versus
01. Sy. Habib s/o Sy.Noor Jahagirdar
age 40 years, occupation: Agril.
02. Sy. Hajat @ Chandsab Ashidullah,
age 45 years, occupation: Agril.
03. Sy.Akbar s/o Sy.Noor Jahagirdar,
age 45 years, occupation: Agril.
04. Mujahid s/o Akbar Jahagirdar,
age 19 years, occupation: Agril.
05. Samiulla s/o Daudkhan Jahagirdar,
age 45 years, occupation: Agril.
All r/of Udgir, Taluka Udgir, Respondents/
District Latur. ori.accused.
WITH CRIMINAL REVISION APPLICATION NO. 128 OF 2001
Sabbir Be w/o Shaikh Amin Sab
age 45 years, occup. business, Applicant/
r/o Udgir, District : Latur. ori.complt.
versus
01. Syed Habib s/o Sy.Noor Jahagirdar
age 40 years, occup. business,
02. Syed Hajat @ Chandsab Ashidullah,
age 45 years, occupation: Agril.
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03. Syed Akbar s/o Sy.Noor Jahagirdar,
age 45 years, occupation: Agril.
04. Majahid s/o Akbar Jahagirdar,
age 19 years, occupation: Agril.
05. Samiulla s/o Daudkhan Jahagirdar,
age 45 years, occupation: Agril.
All r/of Udgir, Taluka Udgir, Respondents/
District Latur. Resp.Nos. 1
to 5 orig.
06. The State of Maharashtra accused.
Shri K.M. Suryawanshi, A.P.P. for appellantState in
Criminal Appeal No. 141 of 2000 and for Respondent No.
6 in Criminal Revision Application No. 128 of 2001.
Shri A.R.Borulkar, Advocate for Respondents No. 1 to 5
in Criminal Appeal, so also in Cri. Revn. Application.
None for applicant in Criminal Revision Application.
Coram : P.R.Borkar,J.
Date : 22/01/2010.
ORAL JUDGMENT
01. These appeal and criminal revision are filed
by the State and original complainant respectively
being aggrieved by the judgment and order passed on
18.12.1999 by the learned Additional Sessions Judge,
Latur, in Criminal Appeal No.29 of 1994 whereby he
acquitted the present Respondentsoriginal accused of
the offences punishable under Sections 147 read with
Section 149 and 323 of Indian Penal Code for which
offences, they were convicted by the learned Judicial
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Magistrate, First, Class, Udgir in Regular Criminal
Case No. 181 of 1987 decided on 7.3.1994.
02. Briefly stated, PW1 Shabbirbi lodged
complaint on 29.9.1987 stating that she was owner of
house bearing No. 2.2.217/1 at Udgir. She was making
construction of one room after obtaining necessary
permission from the Municipal Council, Udgir. She has
also constructed a wall of 45 ft. in length. She also
obtained injunction in respect of the said property,
but present respondentsaccused and other ten persons
on 29.9.1987 came and asked her why she was making
construction. At that time Respondent No. 5 Samiulla
abused her, Respondent No. 3 Akbar gave blow with
stick on her head and right hand. When her husband
Shaikh Amin came to rescue her, Respondent 2 Sk. Hajat
gave a blow with stick on the head of her husband.
Even when brother and mother of the complainant came
to rescue her, Respondent No. 2 Shaikh Hajat and
Respondent No.3 Shaikh Akbar beat and injured them
with sticks and stones. Thereafter complainant
Shabbirbi lodged complaint with police. Injured were
sent to hospital.
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03. After usual investigation, chargesheet was sent
to the court against as many as 15 persons for
committing offences punishable under Section 141, 148,
337 read with Section 149 I.P.C. and Section 323 read
with Section 149 of I.P.C.
04. After considering the evidence on record,
the learned Magistrate by his judgment and order dated
7.3.1994 convicted the Respondents who were accused
Nos. 1,2,5, 9 and 10 of offences punishable under
Sections 147 read with Section 149 and under Section
323 OF I.P.C. (sic). For offence punishable under
Section 147 read with Section1 149 of I.P.C. the
learned Magistrate convicted each of the Respondents
to undergo simple imprisonment of fifteen days and to
pay fine of Rs.100/ each and for offence punishable
under Section 323 of I.P.C. each of the Respondents
was convicted to undergo simple imprisonment for
fifteen days. Respondents were acquitted of the
offences punishable under Sections 148 and 337 of the
I.P.C. Rest of the accused were acquitted of all the
offences levelled against them. As stated in
paragraph 1 above, present respondentsconvicted
accused filed appeal before the Sessions Court in
which they came to be acquitted by the learned
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Additional Sessions Judge. Against the said acquittal,
present appeal by State and criminal revision by
original complainant are filed. It should be noted
here that the learned Magistrate did not realise that
offence under Section 47 of I.P.C. is individual
offence and there could not have been conviction under
Section 147 read with Section 149 of I.P.C. Similarly,
when charge was for committing offence under Section
323 read with Section 149 of IPC, said aspect was not
considered while acquitting other accused persons. Be
that as it may. This appeal and the revision are
necessarily against the judgment and order passed by
the Additional Sessions Judge.
05. Learned Advocate Shri Borulkar for the
respondentsaccused argued that if the prosecution
evidence is properly considered, the same indicates
that it was a case of exercise of the right of private
defence to property. Admittedly, there was dispute
between the respondentsaccused on one hand and the
complainant and members of her family on the other.
Civil suits were filed by both in respect of rights
over the properties. It has come on record that the
trial court had granted temporary injunction in favour
of the complainant, but the District Court vacated the
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same. However, when the matter was taken to the High
Court, again temporary injunction was granted. Learned
Advocate Shri Borulkar submitted that though
injunction was obtained by complainant Shabbirbi, the
said order did not give her right to make illegal
construction on the property of the respondents
accused. He referred to cross examination of
Shabbirbi at length.
06. Before we proceed to discuss evidence of
complainant, as desired by learned Advocate for the
Respondents, we may refer to the injuries found on the
person of the prosecution witnesses who were examined
by Dr. Sheshrao Yerolkar (PW8). Dr. Yerolkar stated
that on 29.9.1987 he was Medical Officer attached to
Civil Dispensary, Udgir. On that day at 10.00 a.m. he
examined Aminsab Mastan, the husband of the
complainant, and found following injuries on his
person;
1. Abrasion on parital part of scalp left
side 1/2" x 1/8"
2. Contusion on left side of back oblique
2"x1/2"
3. Tenderness over right forearm.
Dr. Yerolkar also stated that on that day, at about
10.05 a.m. he also examined Bismillabee, the mother of
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the complainant Shabbirbi and found that she had CLW
on right dorsun of her hand near the base of ring
finger 1/2"x 1/8" skin deep. Dr. Yeorokar further
stated that he had also examined on that day
Ahmadkhan, the brother of the complainant, and found
that he had abrasion on left inner side of web of hand
near thumb 1/2"x1/8". Dr. Yerolkar examined the
complainant Shabbirbi and found that she had abrasion
on forehand and swelling diffusing of 1/2" x 1/2" and
abrasion on right anterior part of wrist of 1/8" x
1/8". All above injuries are discussed by the
appellate court in paragraphs 13 to 16 of its
judgment. On the person of Manjarkhan, there were no
injuries. Doctor stated that injuries were minor in
nature which were also possible in a fall. So, all
injuries were possible in a scuffle.
07. Shri A.R.Borulkar, Advocate for the
respondentsaccused argued that in the complaint
itself it is mentioned that besides one room, a wall
was also being constructed and regarding said
property, complainant Shabbirbi had obtained
injunction order from the Court. She also deposed that
at the time of incident, the accused were saying why
she had kept stones at particular place and why she
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was constructing house (at that place). So, the
dominant intention of the accused, as can be seen from
their conduct, was to prevent particular construction
and though it is said that the house was pulled down,
the spot panchanama dated 29.9.1987 (Exh.147) shows
that it is not that entire house was pulled down, but
it was a portion of wall of 3 ft. in width x 6 ft.
in height. The remaining structure was there. The
construction was in progress and construction material
was lying there. There were also some broken bangle
pieces which complainant claimed to be her own. In
cross examination, the complainant Shabbirbi admitted
that prior to her, nobody was residing in the
premises. Her brother Jabbarkhan had neighbouring
house property. She did not know dimension of her own
property. She was not knowing whether the property
was previously in the name of Jabbarkhan and she also
did not know dimension of the house of Jabbarkhan.
According to the complainant, Jabbarkhan got the
property from municipality. She denied that, the
premises belonged to Respondentaccused No.3 Shaikh
Akbar. She, however, admitted that when she filed
application with municipality for mutation in her
name, accused No. 3 Akbar had opposed the same. The
complainant denied that the municipality had informed
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her and Jabbarkhan that the premises did not belong to
them. The complainant then admitted that the
municipality had served a notice on her to stop the
construction. It was suggested to her that on
29.9.1987, municipal officials had come and demolished
the house. The complainant said that she was not
knowing if injunction was subsequently vacated by the
District Court. The complainant admitted that her
brother Manjurkhan was municipal councilor. She also
denied knowledge if Respondentaccused No.3 Akbar
having filed R.C.S. No. 100 of 1989 and an injunction
order was granted in his favour. In her further cross
examination, complainant Shabbirbi also admitted that
there was dispute between her and accused Akbar about
ownership of the premises. Houses of the complainant
Shabbirbi and accused Akbar were adjoining each other.
08. So, if we consider totality of the
circumstances, only conclusion is that there was
dominant intention on the part of the respondents to
prevent the complainant and her relatives from making
construction on the property of the respondents. It
does not appear that the intention was to beat the
complainant and other witnesses. It is possible that
when the respondents were exercising their right of
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private defence to the property which they might have
used some force against the persons on the side of
prosecution. From the nature of injuries caused to the
prosecution witnesses it does not appear that the
right was exceeded. There were minor injuries possible
in a scuffle.So, on the preponderance of probabilities
it can be said that the respondents were exercising
their right of private defence to the property.
09. In above view of the matter, in my opinion,
this is not a case wherein interference in the
acquittal recorded by the learned Additional Sessions
Judge is called for.
10. In the result, appeal and criminal revision
are dismissed.
pnd/criapl141.2000 (P.R.BORKAR, J.)
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THE HIGH COURT OF JUDICATURE AT BOMBAY IN
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 141 OF 2000
The State of Maharashtra,
through Public Prosecutor, Appellant/orig.
High Court, Aurangabad. complainant
versus
01. Sy. Habib s/o Sy.Noor Jahagirdar
age 40 years, occupation: Agril.
02. Sy. Hajat @ Chandsab Ashidullah,
age 45 years, occupation: Agril.
03. Sy.Akbar s/o Sy.Noor Jahagirdar,
age 45 years, occupation: Agril.
04. Mujahid s/o Akbar Jahagirdar,
age 19 years, occupation: Agril.
05. Samiulla s/o Daudkhan Jahagirdar,
age 45 years, occupation: Agril.
All r/of Udgir, Taluka Udgir, Respondents/
District Latur. ori.accused.
WITH CRIMINAL REVISION APPLICATION NO. 128 OF 2001
Sabbir Be w/o Shaikh Amin Sab
age 45 years, occup. business, Applicant/
r/o Udgir, District : Latur. ori.complt.
versus
01. Syed Habib s/o Sy.Noor Jahagirdar
age 40 years, occup. business,
02. Syed Hajat @ Chandsab Ashidullah,
age 45 years, occupation: Agril.
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03. Syed Akbar s/o Sy.Noor Jahagirdar,
age 45 years, occupation: Agril.
04. Majahid s/o Akbar Jahagirdar,
age 19 years, occupation: Agril.
05. Samiulla s/o Daudkhan Jahagirdar,
age 45 years, occupation: Agril.
All r/of Udgir, Taluka Udgir, Respondents/
District Latur. Resp.Nos. 1
to 5 orig.
06. The State of Maharashtra accused.
Shri K.M. Suryawanshi, A.P.P. for appellantState in
Criminal Appeal No. 141 of 2000 and for Respondent No.
6 in Criminal Revision Application No. 128 of 2001.
Shri A.R.Borulkar, Advocate for Respondents No. 1 to 5
in Criminal Appeal, so also in Cri. Revn. Application.
None for applicant in Criminal Revision Application.
Coram : P.R.Borkar,J.
Date : 22/01/2010.
ORAL JUDGMENT
01. These appeal and criminal revision are filed
by the State and original complainant respectively
being aggrieved by the judgment and order passed on
18.12.1999 by the learned Additional Sessions Judge,
Latur, in Criminal Appeal No.29 of 1994 whereby he
acquitted the present Respondentsoriginal accused of
the offences punishable under Sections 147 read with
Section 149 and 323 of Indian Penal Code for which
offences, they were convicted by the learned Judicial
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Magistrate, First, Class, Udgir in Regular Criminal
Case No. 181 of 1987 decided on 7.3.1994.
02. Briefly stated, PW1 Shabbirbi lodged
complaint on 29.9.1987 stating that she was owner of
house bearing No. 2.2.217/1 at Udgir. She was making
construction of one room after obtaining necessary
permission from the Municipal Council, Udgir. She has
also constructed a wall of 45 ft. in length. She also
obtained injunction in respect of the said property,
but present respondentsaccused and other ten persons
on 29.9.1987 came and asked her why she was making
construction. At that time Respondent No. 5 Samiulla
abused her, Respondent No. 3 Akbar gave blow with
stick on her head and right hand. When her husband
Shaikh Amin came to rescue her, Respondent 2 Sk. Hajat
gave a blow with stick on the head of her husband.
Even when brother and mother of the complainant came
to rescue her, Respondent No. 2 Shaikh Hajat and
Respondent No.3 Shaikh Akbar beat and injured them
with sticks and stones. Thereafter complainant
Shabbirbi lodged complaint with police. Injured were
sent to hospital.
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03. After usual investigation, chargesheet was sent
to the court against as many as 15 persons for
committing offences punishable under Section 141, 148,
337 read with Section 149 I.P.C. and Section 323 read
with Section 149 of I.P.C.
04. After considering the evidence on record,
the learned Magistrate by his judgment and order dated
7.3.1994 convicted the Respondents who were accused
Nos. 1,2,5, 9 and 10 of offences punishable under
Sections 147 read with Section 149 and under Section
323 OF I.P.C. (sic). For offence punishable under
Section 147 read with Section1 149 of I.P.C. the
learned Magistrate convicted each of the Respondents
to undergo simple imprisonment of fifteen days and to
pay fine of Rs.100/ each and for offence punishable
under Section 323 of I.P.C. each of the Respondents
was convicted to undergo simple imprisonment for
fifteen days. Respondents were acquitted of the
offences punishable under Sections 148 and 337 of the
I.P.C. Rest of the accused were acquitted of all the
offences levelled against them. As stated in
paragraph 1 above, present respondentsconvicted
accused filed appeal before the Sessions Court in
which they came to be acquitted by the learned
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Additional Sessions Judge. Against the said acquittal,
present appeal by State and criminal revision by
original complainant are filed. It should be noted
here that the learned Magistrate did not realise that
offence under Section 47 of I.P.C. is individual
offence and there could not have been conviction under
Section 147 read with Section 149 of I.P.C. Similarly,
when charge was for committing offence under Section
323 read with Section 149 of IPC, said aspect was not
considered while acquitting other accused persons. Be
that as it may. This appeal and the revision are
necessarily against the judgment and order passed by
the Additional Sessions Judge.
05. Learned Advocate Shri Borulkar for the
respondentsaccused argued that if the prosecution
evidence is properly considered, the same indicates
that it was a case of exercise of the right of private
defence to property. Admittedly, there was dispute
between the respondentsaccused on one hand and the
complainant and members of her family on the other.
Civil suits were filed by both in respect of rights
over the properties. It has come on record that the
trial court had granted temporary injunction in favour
of the complainant, but the District Court vacated the
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same. However, when the matter was taken to the High
Court, again temporary injunction was granted. Learned
Advocate Shri Borulkar submitted that though
injunction was obtained by complainant Shabbirbi, the
said order did not give her right to make illegal
construction on the property of the respondents
accused. He referred to cross examination of
Shabbirbi at length.
06. Before we proceed to discuss evidence of
complainant, as desired by learned Advocate for the
Respondents, we may refer to the injuries found on the
person of the prosecution witnesses who were examined
by Dr. Sheshrao Yerolkar (PW8). Dr. Yerolkar stated
that on 29.9.1987 he was Medical Officer attached to
Civil Dispensary, Udgir. On that day at 10.00 a.m. he
examined Aminsab Mastan, the husband of the
complainant, and found following injuries on his
person;
1. Abrasion on parital part of scalp left
side 1/2" x 1/8"
2. Contusion on left side of back oblique
2"x1/2"
3. Tenderness over right forearm.
Dr. Yerolkar also stated that on that day, at about
10.05 a.m. he also examined Bismillabee, the mother of
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the complainant Shabbirbi and found that she had CLW
on right dorsun of her hand near the base of ring
finger 1/2"x 1/8" skin deep. Dr. Yeorokar further
stated that he had also examined on that day
Ahmadkhan, the brother of the complainant, and found
that he had abrasion on left inner side of web of hand
near thumb 1/2"x1/8". Dr. Yerolkar examined the
complainant Shabbirbi and found that she had abrasion
on forehand and swelling diffusing of 1/2" x 1/2" and
abrasion on right anterior part of wrist of 1/8" x
1/8". All above injuries are discussed by the
appellate court in paragraphs 13 to 16 of its
judgment. On the person of Manjarkhan, there were no
injuries. Doctor stated that injuries were minor in
nature which were also possible in a fall. So, all
injuries were possible in a scuffle.
07. Shri A.R.Borulkar, Advocate for the
respondentsaccused argued that in the complaint
itself it is mentioned that besides one room, a wall
was also being constructed and regarding said
property, complainant Shabbirbi had obtained
injunction order from the Court. She also deposed that
at the time of incident, the accused were saying why
she had kept stones at particular place and why she
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8
was constructing house (at that place). So, the
dominant intention of the accused, as can be seen from
their conduct, was to prevent particular construction
and though it is said that the house was pulled down,
the spot panchanama dated 29.9.1987 (Exh.147) shows
that it is not that entire house was pulled down, but
it was a portion of wall of 3 ft. in width x 6 ft.
in height. The remaining structure was there. The
construction was in progress and construction material
was lying there. There were also some broken bangle
pieces which complainant claimed to be her own. In
cross examination, the complainant Shabbirbi admitted
that prior to her, nobody was residing in the
premises. Her brother Jabbarkhan had neighbouring
house property. She did not know dimension of her own
property. She was not knowing whether the property
was previously in the name of Jabbarkhan and she also
did not know dimension of the house of Jabbarkhan.
According to the complainant, Jabbarkhan got the
property from municipality. She denied that, the
premises belonged to Respondentaccused No.3 Shaikh
Akbar. She, however, admitted that when she filed
application with municipality for mutation in her
name, accused No. 3 Akbar had opposed the same. The
complainant denied that the municipality had informed
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her and Jabbarkhan that the premises did not belong to
them. The complainant then admitted that the
municipality had served a notice on her to stop the
construction. It was suggested to her that on
29.9.1987, municipal officials had come and demolished
the house. The complainant said that she was not
knowing if injunction was subsequently vacated by the
District Court. The complainant admitted that her
brother Manjurkhan was municipal councilor. She also
denied knowledge if Respondentaccused No.3 Akbar
having filed R.C.S. No. 100 of 1989 and an injunction
order was granted in his favour. In her further cross
examination, complainant Shabbirbi also admitted that
there was dispute between her and accused Akbar about
ownership of the premises. Houses of the complainant
Shabbirbi and accused Akbar were adjoining each other.
08. So, if we consider totality of the
circumstances, only conclusion is that there was
dominant intention on the part of the respondents to
prevent the complainant and her relatives from making
construction on the property of the respondents. It
does not appear that the intention was to beat the
complainant and other witnesses. It is possible that
when the respondents were exercising their right of
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10
private defence to the property which they might have
used some force against the persons on the side of
prosecution. From the nature of injuries caused to the
prosecution witnesses it does not appear that the
right was exceeded. There were minor injuries possible
in a scuffle.So, on the preponderance of probabilities
it can be said that the respondents were exercising
their right of private defence to the property.
09. In above view of the matter, in my opinion,
this is not a case wherein interference in the
acquittal recorded by the learned Additional Sessions
Judge is called for.
10. In the result, appeal and criminal revision
are dismissed.
pnd/criapl141.2000 (P.R.BORKAR, J.)
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