HIGH COURT OF BOMBAY
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B.A. Masodkar, J. -
(1.) The original complainant has moved this Court for accused Janardhan was acquitted in an appeal by the Second Extra Additional Sessions Judge, Nagpur, reversing the conviction recorded by the Judicial Magistrate, First Class, Nagpur, holding the accused guilty under section 447 of the Indian Penal Code and further punishing him with a fine of Rs. 75.
(2.) The facts in this case are really in a narrow compass. It is properly proved by the complainant that on April 22, 1968, the accused entered the premises where he used to tether his cow and took that cow to cattle-pound and this amounted to trespass within the meaning of section 441, Indian Penal Code. To support his case, the complainant examined himself as C.W. 1. He states that his house is facing north and in front of bis shop there is a space where he tethers his cow. He claims that property to be in his possession exclusively and as ancestral property. On April 22, 1968, he was sitting in the shop. The accused and his cousin Yeshwant came to the site where the cow was tethered, untied the cow and began to take it to the cattle-pound. He protested and tried to prevent them whereupon the accused said that as the witness had deposed against him and on behalf of one Narayan Samarth, he was taking the cow to cattle-pound. The cow consequently was confined in the cattle-pound and the complainant got it released by paying Rs. 2.75 after about one day. He had reported the matter to the police and as police directed him to file a complaint he was moving the Court. In the cross-examination, main attack is upon his title to the property. The other facts do not appear to be at all doubted. Some suggestions are made relating to some dispute between Samarth and the accused with respect to some site which may include the present site also. He has continued to assert even in cross-examination that on the site where he was tethering his cow always belonged to him. He states that because of the incident, his relations with the accused are now strained. C.W. 2 Gopala is a neighbour. He runs a flourmill. He states that the cow of the complainant was tethered beyond the road on the open site and it was the accused who untied the rope from the peg and took the cow to the cattle-pound. He also states that he is seeing such tethering and using of the site for the last over ten years. He also says that it is the complainant who unyokes his bullock-carts on that site and tethers the bullocks there. He is seeing the wahiwat over this site for a long time. In cross-examination of this witness nothing much is taken out except asking him that there is a dispute between him and one Narayan Samarth and the accused. But the witness says that it relates to some different site. C.W. 3 Padmakar proved and corroborated the complainant to the effect that on April 22, 1968, at about 10-15 hours, oral report was made by Krishna. That report is Exh. 14 and properly states that his cow was taken away by the accused.
(3.) This evidence is clear enough to establish that the premises were in the occupation of the complainant himself on the day of the incident. He was using it for tethering his cattle like bullocks as well as cow. These facts cannot be disputed and in fact are admitted in the written statement filed by the accused. In para 9 of the written statement the accused states that both the complainant and the father of the accused were on good terms previous to the incident that occurred on April 22, 1968 and as such the father of the accused had permitted the complainant to tie his cow on the land; but having learnt about the conspiracy of the complainant with Narayan Samarth, he objected to the tying of the cow on his own land and after requests not to tether the cow which proved futile he asked his son (i.e. the accused) to take the cow to the cattle-pound and lodge it there. Defence evidence has been led. D.W. 1 Ganpatsao states that it was accused who took away the cow of the complaint-ant to the cattle pound from the site of Ganpatsao, the grand-father of the accused. The complainant was tethering the cow in the open space beyond the road. He says that the accused did not abuse nor gave threats and asserts that the site belonged to the accused. Upon that site, according to this witness, some construction is also done, the accused being the owner. In the cross-examination he states that his knowledge is hearsay and he does not know about the dispute between Narayan Samarth and the father of the accused He was also fined in a gambling case. D.W. 2 Kondba states that the cow was tethered on the plot of Hiraman, i.e. the father of the accused. Yeshwant and the accused said to the complainant that he should untie the cow otherwise he would take it to the cattle-pound. In examination-in-chief itself the witness says that complainant tethers his cow on the plot of the accused which belongs to the accused since about 15-16 years. In his statement under section 342 of the Code of Criminal Procedure this fact that the complainant was tethering the cow on the site for the last 10 to 12 years is denied by the accused. Similarly, the evidence relating to the wahiwat spoken of by the prosecution witnesses is denied. The accused says that he did not remove the cow forcibly for he had already asked the complainant not to tether his cow there.To the general question he says he will file a written statement. I have already noticed the written statement which does form part of the examination of the accused.;
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