Smt. Reeta Verma Vs Krishna Bai Kashyap

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2024:CGHC:48144

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 669 of 2024

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1 - Smt. Reeta Verma W/o Ashwani Kumar Verma, Aged About 45 Years R/o Village Sankara (Bhumiya), Police Station Tilda-Nevra, District Raipur (C.G.) At Present R/o House No. 164, Near Jagdamba Tent, Model Town Bhilai, Tahsil And District Durg (C.G.)

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... Appellant

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versus

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1 - Krishna Bai Kashyap W/o Pawan Kumar Kashyap, Aged About 60 Years R/o Village-Sankara, Police Station- Tilda-Nevra, District-Raipur (C.G.)

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2 - Pawan Kumar Kashyap S/o Late Mahadev Kashyap, Aged About 60 Years R/o Village-Sankara, Police Station- Tilda-Nevra, District-Raipur (C.G.)

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... Respondents

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For Appellant : Mr. Praveen K. Dhurandhar, Advocate For Respondents : Mr. Somnath Verma, Advocate

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board

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06.12.2024

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The appellant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code against judgment of acquittal dated 18.08.2023 passed by learned Judicial Magistrate First Class, Tilda, District Raipur (C.G.) in Criminal Complaint Case No. 183/2014 by which learned trial Court has acquitted the respondent/accused persons from charges under Section 452 & 380/34 of Indian Penal code.

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The brief facts reflected from the record are that appellant/complainant has lodged a complaint under Section 156(3) of Cr.P.C. for registration of FIR alleging that Premin Bai Wd/o Hanuman Kashyap is owner of the house property, godown and garden and she was in possession of the properties which were in pitiable condition.

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The appellant has been declared as legal owner through her will (Ex. P-14) thereafter Premin Bai expired on 31.07.2013 as such the appellant became title holder of the property in view of the will. It is further contended that the respondent No. 1 and respondent No. 2 forcefully entered into the vacant house of the appellant and theft was committed by them between 15.08.2013 and 04.10.2013. They have stolen household articles like 06 tin shades, 03 shades (10 by 3.5 feet), three plastic chairs, one three seater wooden sofa and five cement filled sacks, one table fan, three used cotton mattresses, two iron rods and two steel rods, two steel glass, one steel plate,, one brass plate, about 700 pieces of khapara, three wooden pots, one steel gundi, one kadahi, three quintals of old paddy, four framed photographs, one steel drum, one large iron safe, the total cost of goods amounting to Rs. 60,000/- and the original lease of the land owned by Premin Bai issued by State Government in the year 2001. As such, the appellant has made a complaint to the Police on 04.10.2013 but no action has been taken and thereafter the appellant lodged complaint under Section 156(3) of the Cr.P.C.. The learned trial Court taking cognizance of the statement recorded at preliminary stage recorded statement of the complainant and thereafter framed charges against respondent No. 1 & 2 for commission of offence under Section 451 and 380/34 against

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all the respondents.

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The complainant after registration of complaint examined witnesses namely Reeta Verma (PW-01), Ram Narayan (PW-02), Suresh Baghel (PW-03), Omprakash Kurrey (PW-04), Ashwini Kumar Verma (PW-05), Roop Narayan Tiwari (PW-06) and after framing of charges again Smt. Reeta Verma was examined. The complainant to prove his case has exhibited documents ie., will (Ex. P/1), deed of signature (godnama) (Ex. P/2), Donation Box (daan patra) (Ex. P/3), electricity distribution slip (vidyut vitran parchi) (Ex. P/4), electricity distribution slip (vidyut vitran parchi) (Ex.P/5), electricity distribution slip (vidyut vitran parchi) (Ex. P/6), Death certificate (Ex. P/7), rod cement purchase slip (chhad cement kharidi parchi) (Ex. P/8), bank deposit slip (bank jama parchi) (Ex. P/9), bank deposit slip (bank jama parchi) (Ex. P/10), bank deposit slip (bank jama parchi) (Ex. P/11), application to Police Officer (police adhikari ko aavedan (Ex. P/12), attested copy of order sheet (aadesh patrak ki satyapit prati) (Ex. P/13), will (vasiyatnama) (Ex. P/14), Right to Information application (suchna ki adhikar aavedan) (Ex. P/15), attested copy of Right to Information application (suchna ki adhikar satyapit prati) (Ex. P/16), complaint investigation application (parivad jaanch aavedan) (Ex. P/13), true copy (judgment) (satyaprati (nirnay)) (Ex. P/17). Thereafter the accused has examined defence witnesses namely Vishwanath Singh (DW-01), Raj Kumar Verma (DW-02).

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Learned trial Court after appreciating the evidence and material on record has recorded its finding in paragraph 13 that no conclusive decision with regard to possession of the suit property can be recorded as the civil suit bearing No. 22-A/2015 has been decided on 13.05.2022 as on the date of alleged incident of theft, there was no

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material placed by the appellant that he was in possession of the suit property. Accordingly, it has dismissed the complaint and acquitted the accused. Being aggrieved with the order passed by learned trial Court by acquitting the respondents the appellant has preferred this acquittal appeal.

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Learned counsel for the appellant would submit that the finding recorded by learned trial Court is perverse and contrary to the record as the documents which have been submitted by the respondents/accused which pertains to malba do not deal with title of the property and thus he would submit that since he is having valid will, therefore, the appellant is owner of the property, as such learned trial Court has committed illegality in dismissing the complaint.

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Per contra learned counsel for the respondent would submit that the finding recorded by learned trial Court is legal, justified and does not suffer from illegality or irregularity as the appellant failed to prove the the ingredients required to prove the offence under Sections 451 and 380/34 beyond reasonable doubt, thus he would pray for dismissal of the acquittal appeal.

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I have learned counsel for the parties and perused the records.

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Considering the rival submission made by the parties it is expedient for this Court to propose following point for determination whether the finding of learned trial Court regarding acquitting the respondents suffers from perversity or illegality which warrants interference by this Court while exercising power of interference in the acquittal appeal.

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To appreciate this point it is necessary to go through the order passed by learned trial Court and the evidence.

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From the evidence and material available on record it is quite vivid that when the complaint was filed on 20.11.2013 no conclusive prove with regard to title or ownership of the suit property in question was placed before learned trial Court and both the parties are claiming their title over the suit property and learned trial Court taking note of this fact has recorded its finding on basis of material placed before it that it is not possible for the Court to record the finding that who is the owner of the suit property which is essential ingredient to record such finding for convicting the appellant under Section 451 of Cr.P.C.

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Section 451 of Cr.P.C. reads as under

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“ 451. Order for custody and disposal of property pending trial in certain cases- When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.”

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From bare perusal of the Section 451 of the IPC it is quite vivid that the person who owns the property can only file a complain case for trespassing against the accused as unless and until he has ownership on the date of incident then only he has locus standi to file such a complaint whereas in the present case both the parties are claiming title over the property in question, therefore, the finding recorded by the learned trial Court dismissing the complaint cannot be found faulty or suffers from perversity or illegality which warrants interference by this Court.

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Similarly with regard to theft of articles as mentioned in the complaint no cogent evidence was placed and no documents were produced to

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demonstrate that the said materials were found in the property and even no Panchnama was prepared to demonstrate that the stolen materials were found in the possession of the respondents, therefore, it cannot be held that the finding recorded by learned trial Court is illegal, unjustified and warrants interference by this Court.

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It is well settled position of law that in acquittal appeal, if a possible view which is much favourable to the accused the same should not be interfered by the appellate Court unless cogent evidence to rebut such finding is already available on record whereas in the present case no such material was placed by the complainant before the trial Court. Therefore, considering this restriction and parameter laid down by the Hon’ble Supreme Court and also on the basis of material and evidence placed on record, I am of the view that the learned trial Court has not committed any illegality in acquitting the respondents which warrant interference by this Court. Accordingly, the acquittal appeal deserves to be dismissed and it is hereby dismissed.

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No order as to costs.

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Sd/-

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(Narendra Kumar Vyas) Judge

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Bhumika

Smt. Reeta Verma v. Krishna Bai Kashyap

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Smt. Reeta Verma v. Krishna Bai Kashyap

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