CRL.A/164/2002 of D.SASI Vs STATE OF KERALA on 8 April 2002

J U D G M E N T

The complainant in a private complaint, who initiated prosecution for the offence punishable undersections 447, 427 r/w 34 of IPC, is the appellant, as he isaggrieved by the judgment dated 25.4.2002 inC.C.No.971/99 of the court of Judicial First ClassMagistrate-Kunnamkulam, by which the learnedMagistrate acquitted the accused 5 in numbers undersection 255(1) of Cr.P.C. who faced the prosecution for thesaid offences.

2. The case of the complainant is that he is inabsolute possession and enjoyment of the properties lyingin survey No.602 of Eranellur Village, wherein he hadplanted coconuts and arecanuts. According to thecomplainant, the 1[st] accused has got a property lying on the

southern side of the complainant's property. While so, thefirst accused, who is a lady, tried to take vehicles to herhouse through the property of the complainant and whenthe complainant obstructed the same, she preferredO.S.No.606/93 before the Sub court, Thrissur, against thecomplainant. It is the further case of the complainant thaton 12.5.1993, he had installed a gate on the eastern cornerof his property, but all the accused, on 10.12.1997 hadtrespassed into his property and destroyed the concretefencing and gate and also destroyed valuable trees andthereby caused damage to the tune of `1 lakh and thusaccording to the complainant, the accused 5 in numbershave committed the offences punishable under sections447, 427 r/w 34 of IPC.

3. On filing the complaint, the same was taken on filein due compliance with the procedure and thus institutedC.C.No.971/99 and during the trial of the case, Pws.1 to 3were examined and Exts.P1 to P7 were marked from theside of the complainant. From the side of the accused,

DW1 was examined. Finally, the trial court on the basis ofthe available evidence and materials found that thecomplainant has miserably failed to prove that the entireproperty is in his possession and also found that theaccused was challenging the possession of the complainantin the property in question right from 1993. Consequentlyfound that the allegation of Pws.2 and 3 that the accusedtrespassed to the property of PW1 and destroyed thecoconut trees and arecanut saplings cannot be believed fora moment. Consequently, the accused are acquitted. It isthe above finding and order of acquittal challenged in thisappeal.

4. I have heard Adv.Sri.P.Vijaya Bhanu, the learnedcounsel for the appellant. Though notice was ordered andserved to the respondents, nobody has turned up and noargument is advanced resisting the above appeal.

5. Learned counsel for the appellant submitted thatcivil cases are pending before the court with respect to theright over the property in question and according to the

complainant, he was in possession of the property which isproved through the documents like Exts.P1 to P6.Therefore, according to the learned counsel, the findings ofthe court below are incorrect and illegal and theconsequent acquittal of the accused is liable to beinterfered with.

6. I am unable to sustain the above contention. Inorder to attract the offence under section 447 of IPC, it isthe unshifted burden and duty of the complainant to pleaand prove that the property in question was exclusivelybelonged to the complainant and the same was within hisexclusive possession and enjoyment. But in the presentcase, as rightly held by the learned Magistrate, no scrap ofpaper is produced by the complainant to show that theproperty in question was owned by him and that it waswithin the exclusive enjoyment and possession of theaccused. Even according to the complainant, the accusedinitiated civil proceedings against the complainant, whenthe complainant objected the taking of vehicle by the

accused through the property in question. That fact itselfshows that the complainant was not having absoluteownership or enjoyment over the property or possessionover the same. As rightly found by the learned Magistrate,Exts.P1 to P6 shows that the accused is challenging theclaim of the complainant right from 1993 and serious civilcases are pending between them. So, without earmarkingthe property and showing the same is within the absoluteownership and possession of the appellant, it cannot besaid that the complainant has succeeded in making out acase under section 447 of IPC against the accused. If theabove case of the complainant found as false and wrong,there is no question of considering Section 427 of IPCagainst the accused that they had destroyed the coconuttrees and arecanut saplings, particularly when the rightover such property is under dispute and while series of civilcases are pending.

7. From the above facts and circumstances involvedin the case and in view of the evidence and materials on

record supporting the above finding and for the abovereason it cannot be said that the findings of the court beloware perverse or illegal. As the appellant has miserablyfailed to convince this Court that the findings of the courtbelow are perverse or illegal, this court will not be justifiedin interfering with the order of acquittal recorded by thetrial court in favour of the accused and thereby to disturbthe presumption of innocence reinforced in favour of theaccused by the impugned judgment.

In the result, there is no merit in this appeal andaccordingly the same is dismissed.

ami/

//True copy//

Sd/-

V.K.MOHANAN, Judge

P.A. to Judge