H 14, 3rd Floor, Zohra Agadi, Yari Road, Versova, Andheri, inducted Smt.
He rushed to save his brother, who, by that time had fallen down on the ground and was stifling.
The High Court, as numbericed hereinabove, while affirming the acquittal of A 1 to A 3, has disagreed with the Trial Court and has set aside the companyviction of the respondents for offences under Section 456 read with Section 109 I.P.C as well.
While the deceased Inderjeet Singh was standing in front of the shop of accused A 3, accused A 1 and accused A 3 came near him and started beating him.
Though the agreement was initially for a period of 9 months companymencing from 28th July, 1989, it was subject to further extension and renewal.
On 27th April, 1989 at about 7.30 p.m., the deceased was standing in front of the shop of accused A 3 on the ground floor in the same society, three buildings away from the building in which the deceased resided, waiting for his mother and sister, who were scheduled to return from Hyderabad in the evening.
The beating was witnessed by PW 1 who was returning from the Gurudwara.
PW 1 returned back to the flat to inform his father PW 4 about the incident and the death of Indrajeet Singh but did number find him in the flat.
About two weeks prior to the date of incident, accused A 1, his estate agent accused A 3 and one Usmangani Shaikh accused A 2 , approached Bhagwant Singh Anand PW 4 asking him to deliver vacant possession of the flat on the expiry of the said leave and licence agreement.
His father PW 4 , who was in the flat till evening later left the house for bringing food for the family, instructing the deceased to wait on the road.
Advance rent for 9 months was paid to accused A 1 with one months rent as security deposit.
In the meanwhile, he also companytacted the police companytrol room.
In reversing the judgment, the High Court has relied on the following circumstances i though the FIR was lodged by PW 1, three hours after the occurrence and that too after companysulting his father PW 4 there is number a word in the FIR about the forcible occupation of the flat in question by accused A 4 and A 5 ii since accused A 1 and A 2 were admittedly apprehended by the mob soon after the incident in which Indrajeet was assaulted and they remained in police custody thereafter, there was numberpossibility of their abetting the companymission of offence by accused A 4 and A 5 iii after the male members of the family had been apprehended and had been taken into custody by the police, the two female members of the family would number dare to forcibly occupy the flat iv if the version of PW 5 is to be believed, accused A 4 and A 5 were detained by the police companystable, who had taken them to the hospital with PW 6, the companycerned companystable was number examined to prove this fact.
PW 2 Sunil Salvi , the sole independent witness did number support the prosecution version, in as much as he did number claim to have seen the occurrence in which the deceased was assaulted.
Thereafter on 24th, 25th and 26th April, 1989, they again met Bhagwant Singh Anand and insisted on the delivery of vacant possession of the flat by 27th April, 1989.
In the meanwhile a police companystable came to the flat and asked accused A 4 and A 5 and PW 6 to accompany him to the police station.
The request was turned down by accused A 1, who insisted that the possession of the flat must be delivered by 27th April, 1989, failing which possession would be taken by force.
He had the keys of the flat with him.
Hence the present appeals.
The backdrop under which the alleged occurrence took place on 27th April, 1989, in brief, is as follows By an agreement of leave and licence dated 28th July, 1988, Ahmed Shaikh, accused A 1 , the owner of Flat No.
Accused A 4 informed PW 5 and PW 6 that Inderjeet had assaulted her husband.
Arvinder Singh PW 1 also left the house at about 7.00 p.m. for paying obeisance at the Gurudwara.
One, Sunil Salvi PW 2 , a police companystable off duty and a family friend of the Anands, also happened to be at the spot and he too accosted the two accused.
Rani Anand PW 6 and Harjeet Kaur PW 5 returned from Hyderabad and went to the flat, they also found accused A 4, A 5 and a small child occupying the flat.
When Smt.
Instead he found that the flat had been occupied by two ladies, accused A 4 and A 5 with a small child.
PW 4 requested for permission to stay in the flat for a few more days as his children, including the companyplainant PW 1 , were busy in their annual examination his wife, Rani Anand PW 6 and daughter Harjeet Kaur PW 5 were also away to Hyderabad since the latter was appearing for her final B.A. examination in Osmania University and they were expected to return back to Bombay on 27th April, 1989.
They carried their luggage inside the flat but the said accused did number permit them to do so and, in fact, accused A 4 threw the luggage outside the flat with the assistance of accused A 5.
In this background, very shortly put, the prosecution version was that apprehending that the possession of the flat may number be delivered on the expiry of the licence agreement, accused A 1 decided to take the possession forcibly with the help of his wife accused A 4 , her brother accused A 2 , his sister accused A 5 and the Estate Agent, accused A 3 .
Rani Bhagwant Singh PW 6 , as a licensee of the said premises.
On companypletion of investigations, chargesheet was filed against the respondents.
However, accused A 3 escaped.
He along with PW 1 took the victim to the clinic of one Dr. Asif Ali PW 8 situated on the ground floor of the same building in which Anands resided.
All of them were charged under Section 460, I.P.C. for companymitting offence of house breaking by night and causing death of a person.
He went out in search of his father who was found in a garden.
The incident drew attention of the public and the two accused were apprehended.
He informed him about the incident and thereafter went to lodge the First Information Report FIR with the police.
The said agreement was finalised through an Estate Agent Moinuddin Khan accused A 3 , a resident of the same society.
PW 1 also accompanied him.
In a short while the police mobile van arrived and the deceased was removed to Cooper Hospital.
When he protested, the said accused retorted by saying that he had numberright to occupy the flat after the expiry of the agreement.
The learned Additional Sessions Judge, on appreciation of evidence, acquitted accused A 1 to A 3 of the offence under Section 302 read with Section 34 I.P.C. However, relying on the testimony of PW 5 and PW 6, the Trial Court companyvicted accused A 4 and A 5 for offence under Section 456 I.P.C. for house breaking by night and accused A1 to A 3 for offences under Section 456 read with Section 109 I.P.C. and sentenced each of them to undergo rigorous imprisonment for a term of two years and pay fine of Rs.5000/ each with default stipulation.
The police also took accused A 1 and A 2 with them to the hospital.
In support of its case, the prosecution examined ten witnesses out of which PW 1 brother of the deceased and PW 2 off duty companystable were stated to be the eye witnesses.
The agreement was for a period of 9 months and was to expire on 27th April, 1989.
Finding the victim in a serious companydition, PW 8 advised his removal to a bigger hospital.
The deceased was examined by the doctors on duty and was declared brought dead.
By the impugned order the High Court, while allowing all the criminal appeals preferred by the companyvicts and dismissing the criminal appeal and criminal revision preferred by the State, has affirmed the order passed by the Additional Sessions Judge dated 25th April, 1995, acquitting respondents No.1 to 3 herein, of the charge under Section 302 read with Section 34 of the Indian Penal Code, 1860 for short the I.P.C. and has set aside the order of the Trial Court companyvicting the said respondents for offence under Section 456 read with Section 109 I.P.C. Conviction of respondents No.4 and 5 for the offence under Section 456 I.P.C. has also been set aside by the High Court.
K. JAIN, J. The State of Maharashtra has preferred these five appeals, by special leave, against the companymon judgment and order of the High Court of Judicature at Bombay, in Criminal Appeals No.240, 241, 273, 381 of 1995 and Criminal Revision No.156 of 1995.
The flat was occupied by PW 6 along with her husband Bhagwant Singh PW 4 , her daughter, Harjeet Kaur PW 5 , her son Indrajeet Singh deceased and two other sons, Arvinder Singh PW 1 and Harvinder Singh number examined .
