M.M.Gupta - (1.) THIS appeal has been filed by the complainant Manohar Lal Mangal against the acquittal of the respondent under section 447 IPC.
(2.) RESPONDENT Samanta is the husband of Smt. Naraini respondent No. 2 and respondent nos. 3 and 4 respectively Balbir and Jasram are their sons. According to the complaint filed by Manohar Lal Mangal, appellant his wife Smt. Radharani owns a property in Civil Lines, Mathura. It includes two shops on the road side and a room on the back of it. There is also an open space like an Angan enclosed by walls era all sides. Out of the two shops one shop and the room behind it were in the tenancy of Samanta. The Rasta of the room was through the Angan which was in the possession of Smt. Radharani. Smt. Radharani obtained a decree for eviction of Samanta from the shop and the room in Suit No. 392 of 1972 on 26-3-1974. The Dakhaldihani in pursuance of that decree took place on 5-4-1974 through a lawyer Commissioner. At the time when the Commissioner went to deliver the possession Samanta and other respondents tried to pick up a quarrel with the complainant and indulged in the Mar pit and a report in that connection was also lodged at the Police Station. On the 18th April 1974 at some odd hour of the night the respondents took unauthorised possession of the Angan. On 19th April 1974 on coming to know of the trespass a report was also lodged at the Police Station in that connection. Thereafter a registered notice was given to the respondents. Out of those notices Balbir and Smt. Naraini refused to accept them. On behalf of the respondents reply to the notices was also given by a lawyer. Since the respondents had committed a criminal trespass a complaint was filed on 11th May 1974. Respondent Samanta admitted that he was the tenant of Smt. Radharani. He also admitted that a decree for eviction was passed against him and the Dakhaldihani was given against him on 5-4-1974. He denied that he committed any criminal trespass on the Angan in question. He claimed that he is not in possession over that portion of the proparty from which he was evicted. The other respondents Balbir and Jasram claimed that they were made an accused as they were the sons of respondent Samanta. Smt. Naraini also claimed that she was made an accused because she was the wife of respondent Samanta.
(3.) THE prosecution in support of its case examined Ram Krishna Chaturvedi. THE other witnesses of fact examined are Manohar Lal Mangal complainant himself as PW 5, Harinder Kumar PW 1 and PW3 Ramesh Chandra Gautam, PW 4 S. P. Chaturvedi is a formal witness. The learned Special Judicial Magistrate who decided the case came to the conclusion that the Dakhaldihani in this case was obtained only over the shop and the room in the tenancy of the respondent Samanta but no possession was delivered over the Angan. In such circumstances he held that it was not a case of criminal trespass and as such the respondents were entitled to acquittal.;