- (1.) BHAGWAN Din, J. This is a criminal appeal against the judgment and order dated 28-4-1980 passed by the C. J. M. , Fatehpur in criminal case No. 422 of 1977, acquitting the respondent under Sections 295,297,504 and 506,1. P. C.
(2.) THE facts in brief, giving rise to the present appeal are that the appellant, Haji Baqrida Khan filed a complaint in the Court of C. J. M. , Fatehpur against the respondent with the allegation that he had encroached upon the grave yard land, wherein, the dead bodies of Muslims are buried and after exhumation of the grave yard has erected a building of Mandi Samiti and thereby he has committed the offence punishable under Sections 295 and 297, I. P. C. and when appellant restrained him from digging the graves he threatened him to life and grievous hurt and thus, he has further committed the offence punishable under Sections 504 and 506, I. P. C. The learned C. J. M. took the cog nizance of the offence and summoned the respondent, Ram Saran Singh, who is Sachiv of Krishi Utpadan Mandi Samiti, Jahanabad district Fatehpur, for his trial under Sections 295,297,504 and 506, I. P. C. After recording the prosecution evidence he arrived at the conclusion that the ac cused respondent is not liable to be punished for the offences punishable under Sections 295,297,504 and 506, I. P. C. He, therefore, acquitted him. Hence ap peal against the order of acquittal. List is revised. Neither the appel lant nor his Counsel is present. So also the Counsel for the respondent is not present.
(3.) THE C. J. M. on considering all aspect of the prosecution version ac quitted the respondent on the ground that the grave- yard exists in plot No. 547. THE prosecution has utterly failed to prove that the accused encroached upon any portion of grave- yard. Rather it is established that the accused- respondent has constructed the Mandi Samiti Building on the land adjacent to plot No. 547, that even if graves are exhumed which does not exist in plot No. 547 the accused-respondent cannot be held guilty for during the graves and lastly that the accused- respondent is a public servant. He has erected the building of Mandi Samiti, Jahanabad on the land acquired by the Land Acquisition Officer, Fatehpur. Thus, the act of. the accused, as such was discharge of his official duty. THE complainant had not obtained the sanction for the prosecution under Sections 195, 297, 504 and 506,1. P. C. and thereby acquitted the accused. Hence, the appeal against the acquittal by the complainant. Having regard to the fact that this criminal appeal was Hied in the year 1981 and could not be finally decided even after expiry of about 19years, the absence of the Counsel for the parties is indicative of the fact that the appellant is not interested into pursuing the appeal. However, I perused the material evidence on record, and the impugned judgment carefully and cautiously. From the oral and documen tary evidence it is established that plot No. 547 is a grave-yard but the complainant and his witnesses have utterly failed to prove that demised construction has been raised on the plot No. 547.;