JUDGMENT

H.C.P. Tripathi, J. - On a complaint by Asstt. Engineer, III Provincial Division, Public Works Deptt., Allahabad, Respondent Rajaram was prosecuted for an offence u/s 447 IPC on the allegation that he had constructed a house within the boundary of Grand Trunk Road, N.H. II, on the East of mile No. 476, 1 furlong without the permission of the Public Works Deptt. of the State. A notice was given to the Respondent to remove the disputed constructions, but he did not comply with it.

2. The Respondent had denied to have made any encroachment on the Public road. According to him, he constructed the house with the permission of the Pradhan of the village.

3. The trial Magistrate, after taking into account the evidence led by the parties reached the conclusion that the constructions made by the Respondent came within the limits of the road boundary. The learned Magistrate however placing reliance upon a decision of this Court in Niadar Vs. Ramji Lal, AIR 1925 All 549 held that actual physical possession should have been i proved which has not been done and accordingly acquitted the Respondent.

4. The State came up in appeal against the order of acquittal recorded by the Magistrate. It