- (1.) V. N. Misra, J. This is an application in revision by J. C. W. Smith against the judgment and order dated May 22, 1980, passed by Sri Umendra Nath Bansal, III Magistrate, Hathras, District Aligarh in which he acquitted the accused opposite parties in case under Sections 380, 448 and 452 I. P. C.
(2.) BRIEFLY stated the prosecution case was that quarter No. 12|1 was allotted to the applicant, J. W. C. Smith and he was paying Rs. 21/- as rent for this quarter. He was then transferred to Lucknow and he locked his quarter and left for Lucknow. He also asked his friends Kali Charan Sharma and Sheo Dutt Sharma to keep looking after the quarter. On June 1, 1976, Kali Charan Sharma lodged a report at the Police Station in which he said that the opposite parties had taken unauthorised possession over this quarter. He also sent a telegram to Sri Smith which was received by him on June 2, 1976 and he also had a telephonic talk with K. C. Sharma. On June 19, 1976, the applicant came to Hathras and found Jagdish Prasad Sharma, Naib Nazir Tehsil Hathras, Smt. Kusum Sarawat, Librarian, Rameshwar Dayal Girls College, Hathras in possession over this quarter and they told him that Gulab Chand had put them in possession, J. C. W. Smith then lodged a report against these persons on which they were prosecuted but have been acquitted by the Magistrate who tried them. At the tune when this case was taken up for hearing, learned counsel for the applicant did not appear and I did not have the pleasure of hearing him. Since, however, the cause list had been revised I heard the learned A. G. A. and perused the record, to decide this revision on merits. The prosecution case was that on June 1, 1976, K. C. Sharma lodged a report against unauthorised occupation of this quarter by the opposite parties and also sent a telegram to J. C. W. Smith which was received by him on June 2, 1976. Inspite of it the applicant did nothing in the matter and lodged a report on June 19, 1976. This inordinate delay in lodging a report at the police station was not explained.
(3.) IN this case 3 witnesses. J. C. W. Smith, P. W. 1. S. D. Sharma P. W. 2 and K. C. Sharma, P. W. 3, were examined. It was urged that P. W. 2 and 3 were residents of the city and lived at distance of 2 miles away. They could not, therefore, have known that this quarter had been occupied in an unauthorised manner by the opposite parties. Even if these two witness lived at some distance from this quarter, it was urged that J. C. W. Smith had asked them to look after this quarter and this they came to know that it had been occupied, but both these persons were applicants for this very quarter when J. C. W. Smith was transferred to Lucknow and being interested in the quarter and being against its allotment to the opposite parties they could appear as false witnesses in the case. Their testimony, therefore, could not be given much weight. The opposite parties examined D. W. 1 Sudhir Kumar Sinha, Advocate who stated that opposite party No. 2 paid Rs. 1500|- to the applicant and had possession delivered to her. There was no reason why the testimony given by Sudhir Kumar Sinha, Advocate should not have been believed by the learned Magistrate.;