Bombay High Court
LEELABAI RAMKRISHNA KUBERversusMANOHAR GANGADHAR ADKAR AND ORS.
- Decided
- Disposal
- Dismissed
- Bench
- R N LADDHA
Holding
The appellate court upheld the trial court’s acquittal of the accused, finding no basis to set aside the order.
Summary
The appellant, a 70‑year‑old retired teacher, appealed the acquittal of four family members who were charged with offences under Sections 452, 341, 323, 504 and 506(2) IPC arising from a dispute over possession of a residential floor. The prosecution alleged that after a civil decree in the appellant’s favour, the accused forcibly entered the premises on 13 May 1998, breaking locks and threatening the appellant. The trial court acquitted the accused, finding the evidence unreliable and noting that the civil dispute over possession remained sub‑judice. On appeal, the High Court examined the credibility of the complainant and witnesses, the lack of documentary proof of exclusive possession, and procedural deficiencies in the investigation. Concluding that the prosecution failed to prove criminal intent and unlawful entry beyond reasonable doubt, the Court upheld the trial court’s acquittal and dismissed the appeal.
Issues considered
- The prosecution proved the elements of criminal trespass and related offences beyond reasonable doubt given the ongoing civil dispute over possession.
- The credibility and reliability of the complainant’s and witnesses’ testimonies were sufficient to sustain a conviction.
- Whether the appellate court should interfere with the magistrate’s order of acquittal.
- Effect of the death of respondents No.1 and No.2 on the continuation of the appeal.
- The permissibility of amending the cause title of the appeal memo.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 313
- Indian Penal Code, 1860 — s. 323, 34, 341, 452, 504, 506(2)
Subjects
- criminal trespass
- wrongful restraint
- assault
- insult
- criminal intimidation
- civil dispute
- possession
- acquittal
- burden of proof
- evidence reliability
Judgment
Digitally signed
by CHITRA
SANJAY
CHITRA SONAWANE
SANJAY Date:
SONAWANE 2026.03.04
18:25:13
+0530
Chitra Sonawane 2-A-1227-2004.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.1227 of 2004
Smt Leelabai Ramkrishna Kuber
Age: 70 yrs, Occ: Retired teacher,
R/at : 169, Anand Nagar, Sangvi,
Post : Aundh, Pune-27. … Appellant.
Vs.
1. Manohar Gangadhar Adkar
2. Smt Pratibha Manohar Adkar
3. Smt Smita Satish Joshi
4. Smt Sukhada Dhananjay Sane
All Adults, R/at : Amruta Auto Garage,
near Kirloskar Compound,
Kothrud, Pune -29
5. State of Maharashtra … Respondents.
---
Mr KK Malpathak for the appellant.
Mr Arfan Sait, APP for the respondent / State.
Mr V Pethe, for respondents No.3 and 4.
---
Coram : R.N.Laddha, J.
Date : 4 March 2026.
Judgment :
Heard Mr KK Malpathak, the learned Counsel
appearing on behalf of the appellant/ the complainant; Mr
V Pethe, the learned Counsel appearing on behalf of
Page No. 1 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
respondents No.3 and 4/ accused; and Mr Arfan Sait, the
learned Additional Public Prosecutor representing
respondent No.5/ State.
2. At the outset, the learned Counsel for the appellant
seeks leave to amend the cause title of the appeal memo to
rectify the name of respondent No.3. Leave granted as
prayed for. The necessary amendment shall be carried out
forthwith. It is further submitted that respondents No.1 and
2 have expired during the pendency of the appeal. As a
result, the appeal abates and is dismissed against
respondents No.1 and 2.
3. The legality, propriety and correctness of the judgment
and order dated 15 May 2003 passed by the learned Judicial
Magistrate First Class, Pimpri, in Criminal Case No.2118 of
1998, whereby respondents No.1 to 4/ accused were
acquitted of the offences punishable under Sections 452,
341, 323, 504, 506(2) read with 34 of the Indian Penal
Code (‘IPC’), is assailed in this Appeal.
4. The gravamen of the prosecution’s case is that the
complainant claimed ownership of land admeasuring 1.5
Page No. 2 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
Gunthas out of Survey No.169, upon which she constructed
a residential building. Being a widow, she permitted accused
No.1, her younger brother, along with accused No.2, his
wife, and accused Nos.3 and 4, their daughters, to reside
with her on the ground floor. Disputes subsequently arose
regarding possession, and it was alleged that accused No.1
attempted to secure mutation of the property in his favour
after obtaining the complainant’s signatures on certain
documents. The complainant instituted a civil suit for
declaration and possession, which was decreed ex parte in
her favour. Execution proceedings followed and, according
to the prosecution, possession of the ground floor was
delivered to the complainant through the Court Bailiff on
27 April 1998, after the removal of a lock allegedly placed
by accused No.1. The prosecution further alleges that on 13
May 1998, the accused forcibly removed the lock, entered
the premises, abused and threatened the complainant and
prevented her from accessing the ground floor. On the basis
of a complaint dated 15 May 1998 and a private complaint
dated 20 May 1998, prosecution was initiated.
5. During trial, to substantiate the indictment against the
accused, the trial Court recorded the evidence of five
Page No. 3 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
witnesses, namely, Leela Ramkrishna Kuber (PW-1), the
complainant; Bhagwan Gangaram Kshirsagar (PW-2), the
complainant’s neighbour and eyewitness; Vishakha
Manjunath Kulkarni (PW-3), the complainant’s niece;
Shrikrishna Pralhad Deshpande (PW-4), the Court Ballif;
and Sampatrao Dadabhau Potghan (PW-5), the Investigating
Officer. The statement of the accused under Section 313 of
the Code of Criminal Procedure, 1973, were recorded,
consisting of a denial and false allegations of implication in
order to grab property. The accused did not adduce any
evidence in defence but relied upon documentary evidence.
Upon appraisal of the evidence, the trial Court acquitted the
accused. Being aggrieved and dissatisfied, the complainant
filed the present Appeal.
6. This Court has given anxious consideration to the rival
contentions canvassed across the Bar and perused the
impugned judgment, grounds in the appeal memo, evidence
and material on record.
7. The prosecution case, though founded upon
allegations of criminal trespass, wrongful restraint, assault,
insult and criminal intimidation arising out of an alleged
Page No. 4 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
incident dated 13 May 1998, is inseparably intertwined
with an admittedly long-standing civil dispute relating to
possession and title over immovable property between
closely related family members. The evidence led by the
prosecution fails to travel beyond the realm of a civil
discord and does not attain the degree of certainty required
to sustain criminal culpability.
8. PW-1, the complainant, in her examination-in-chief,
asserted that after execution of a civil decree, possession of
the ground floor premises was delivered to her through the
Court Bailiff on 27 April 1998 and that, thereafter, the
accused forcibly broke open several locks and entered the
premises against her will. However, her cross-examination
reveals material admissions and inconsistencies which
substantially impair the reliability of her version.
9. PW-1 candidly admitted that accused No.1 is her
younger brother, whom she herself had invited to reside
with her in the premises, and that the parties had lived
jointly for several years. She further acknowledged the
existence of long-standing civil litigation between them
concerning the very same property, including execution
Page No. 5 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
proceedings, appeals and miscellaneous applications
pending before competent civil courts. Significantly, she
admitted execution of documents bearing her signature,
including correspondence addressed to the Municipal
Corporation during the period of joint residence, which
formed the basis for mutation entries in favour of accused
No.1. Though she attempted to attribute such execution to
compulsion, no contemporaneous complaint was ever
lodged alleging coercion. The absence of any challenge to
those documents for several years materially weakens the
prosecution’s assertion that the accused were strangers or
unlawful entrants.
10. Equally relevant is PW-1’s admission that she had not
produced documentary proof, such as revenue extracts or
ownership records, establishing exclusive possession of the
premises. The civil decree relied upon by her was
admittedly passed ex parte, and proceedings seeking to set it
aside, as well as orders relating to status quo, were pending
at the relevant time. The evidence thus discloses that the
question of possession remained sub judice and unsettled. In
such circumstances, the prosecution was required to
establish clear and settled possession in favour of the
Page No. 6 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
complainant before criminal liability for trespass could
arise, which burden has not been satisfactorily discharged.
11. The evidence of PW-2, projected as an independent
eyewitness, also fails to materially corroborate the
prosecution narrative. His testimony shows that he merely
heard a quarrel from the complainant’s premises and
reached the spot after the lock had already been opened. He
expressly admitted that he had not witnessed who broke the
lock or how entry was effected. More importantly, he
conceded that several facts deposed before the Court,
including the alleged earlier delivery of possession through
Bailiffs, were being stated by him for the first time during
the trial and were not part of any prior police statement.
The investigating officer, PW-5, confirmed these omissions.
Such improvements render his testimony unreliable as
corroborative evidence of unlawful entry or criminal
conduct.
12. PW-3, the complainant’s niece, attempted to support
the prosecution by stating that the accused demanded keys,
broke open the lock with instruments and threatened the
complainant. Nevertheless, her cross-examination reveals
Page No. 7 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
substantial omissions in her police statement relating to the
very core of the prosecution story, including the alleged visit
to the bank, demand for keys, breaking of locks and threats
attributed to the accused. She admitted inability to explain
why these material particulars were absent from her earlier
statement. Her admitted lack of knowledge regarding the
civil proceedings governing possession further detracts from
the evidentiary weight of her testimony. Being a close
relative who stayed with the complainant during the
relevant period, her evidence required careful scrutiny, and
the learned trial Court rightly treated it as interested
testimony suffering from subsequent embellishment.
13. The prosecution sought to establish lawful delivery of
possession through PW-4, the Court Bailiff. While PW-4
stated that possession was handed over pursuant to a
possession warrant, his cross-examination exposes
significant deficiencies. He admitted that he had not verified
whether any appellate stay order was operating prior to
execution of the warrant and that several execution
documents and reports did not bear his signature, having
been prepared by another Bailiff who was not examined. He
was also unable to furnish material particulars, such as the
Page No. 8 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
identity of the lock-breaker or independent verification of
procedural compliance during execution. In the absence of
examination of the author of the crucial execution
documents and production of complete original records, the
prosecution has failed to conclusively establish lawful and
effective transfer of possession to the complainant on 27
April 1998.
14. The evidence of PW-5, the Investigating Officer,
further exposes gaps in the prosecution case. He admitted
that the complaint reached the police station for the first
time on 15 May 1998, notwithstanding the complainant’s
assertion of earlier approaches. He also conceded that
during investigation neither the witnesses nor the
complainant attributed specific roles to accused Nos.2 to 4.
Material facts later introduced by PW-2 and PW-3 during
the trial were not found in their police statements. PW-5
further acknowledged that no documentary material, such
as electricity bills, ration cards or other records, was
collected to verify actual possession of the premises, nor
was any spot panchnama prepared. These omissions assume
importance in a prosecution fundamentally dependent upon
proof of possession.
Page No. 9 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
15. The delay of two days in lodging the complaint,
coupled with admitted consultation with legal counsel prior
to its filing, assumes significance in the factual background
of ongoing civil litigation. The omission to mention alleged
earlier police approaches in the complaint creates
reasonable doubt regarding spontaneity and authenticity of
the prosecution version.
16. Additionally, there is no material to substantiate the
allegations pertaining to the offence under Section 323 of
the IPC. The accusations under Sections 504 and 506(2) of
the IPC are similarly general in nature, devoid of specific
words or acts attributable to any accused individually, so as
to constitute intentional insult or criminal intimidation
within the meaning of the law.
17. The cumulative effect of the evidence demonstrates
that accused No.1 had a long-standing residence in the
premises and asserted possessory rights recognised in
municipal and civil proceedings. Where possession itself is
disputed before civil courts and competing claims subsist,
entry into such property cannot ipso facto assume the
character of criminal trespass unless unlawful intent and
Page No. 10 of 11
____________________________________________
4 March 2026
Chitra Sonawane 2-A-1227-2004.doc
exclusive possession are proved with certainty. The
prosecution evidence, riddled with omissions,
improvements and investigative deficiencies, falls short of
this standard.
18. The learned Magistrate, upon appreciation of the oral
and documentary evidence, has assigned cogent reasons for
extending the benefit of doubt to the accused. It is a settled
position of law that once an order of acquittal is recorded,
the presumption of innocence stands strengthened, and
interference is justified only when findings are perverse or
wholly unreasonable.
19. Given the above, in the considered opinion of this
Court, the trial Court has rightly acquitted the accused, and
there exists no compelling reason to warrant interference.
As a result, this appeal fails and is hereby dismissed.
[R. N. Laddha, J.]
Page No. 11 of 11
____________________________________________
4 March 2026
Checking your session…