Anil Kumar v. Krishna Das and Janaki Amma and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934** **CRL.A.No. 1310 of 2009 ( ) ---------------------------** **AGAINST THE ORDER IN Crl.L.P..1789/2008 of HIGH COURT OF KERALA DATED 06-07-2009** **AGAINST THE JUDGMENT IN CC.133/2005 of J.M.F.C.-I,KOZHIKODE DATED 17-06-2008** **APPELLANT/PETITIONER/COMPLAINANT:-** **--------------------------------** **ANIL KUMAR, S/O.MADHAVAN NAIR, MELA KOTHIRALIL, KURUVATTUR AMSOM, CHERUVATTA DESOM KOZHIKODE.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** **RESPONDENTS/ACCUSED & STATE:---------------------------** **1. KRISHNA DAS, S/O.ACHUTHAN NAIR, KANTHIRALIL, KURUVATTUR AMSOM, CHERUVATTA DESOM KOZHIKODE.** **2. JANAKI AMMA, W/O.ACHUTHAN NAIR, KURUVATTUR AMSOM, CHERUVATTA DESOM, KOZHIKODE.** **3. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 & R2 BY ADV. SRI.P.K.RAMKUMAR R3 BY PUBLIC PROSECUTOR SRI.N.SURESH.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**Kvs/-**_ ## **V.K. MOHANAN, J.** = = = = = = = = = = = = = Crl.Appeal No.1310 of 2009. = = = = = = = = = = = = = Dated this the 20[th] March, 2013. ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Sections 447 and 392 r/w.Section 34 of Indian Penal Code is the appellant herein as he is aggrieved by the Judgment dated 17.6.2008 in CC.No.133 of 2005 of the court of the Judicial Magistrate of the First Class-I, Kozhikode by which the learned Magistrate acquitted the accused two in numbers who faced the prosecution for the said offences. 2. The case of the complainant is that the property wherein the complainant with his family is residing originally belonged to his father Madhavan Nair by virtue of registered gift deed No.898/72 of S.R.O., Kakkodi. The said property involved upon the complainant and thus after the death of the said Madhavan Nair, the complainant is in possession and enjoyment of the property and the accused **Crl.Appeal No.1310/2009.** 2 has no right whatsoever over the said property. According to the complainant, there was a jack tree aged about 70 years standing on the north eastern corner of the property of the complainant, which was cut down by the complainant for his personal purpose and the timber of the said tree fetch a value of ` 20,000/- and after cutting the same, the trunk kept in the property. It is the further case of the complainant that on 25.12.2003 at about 9.00 p.m. the accused and ten other persons trespassed into the property with weapons and taken away the jack timber in a mini lorry bearing Reg.No.KEZ 3628 driven by one Girish. According to the complainant, when he attempted to prevent the action, the first accused threatened the complainant in obscene words and the second accused threatened him to cause death. It is also alleged that the first accused attempted to beat the complainant with an intention to murder him. So, according to the complainant, he left the place and returned to his house. According to the complainant, the said act of the accused was witnessed by **Crl.Appeal No.1310/2009.** 3 certain witnesses. Hence according to the complainant, the action of the accused amount to the offences punishable under Section 143, 147, 148, 441, 427, 294(b), 379, 506(ii) r/w.149 of IPC. With the above allegation the complainant approached the court below by filing a complaint and accordingly sworn statement of the complainant was recorded and the complaint was taken on file for the offence only under Sections 451 and 392 r/w.Section 34 of IPC. That too only against two accused out of 12 in numbers figured in the complaint. According to the complainant, he was constrained to file the present complaint as the police though registered a crime as 458/04 in the Chevayur Police Station, the same was subsequently referred as the dispute is civil in nature. 3. When the accused appeared in pursuance to the summons issued from the court, Pws.1 to 4 were examined and Exts.P1 to P5 were marked and thereafter by order dated 16.11.2006, the then Magistrate has found that the available materials on record constitute offences punishable **Crl.Appeal No.1310/2009.** 4 only under Sections 447 and 392 of IPC and to attract the offence under Section 451 of IPC, there was no materials. Accordingly, a charge for the offences under Sections 447 and 392 of IPC were framed against the accused, and the same when read over and explained to the accused, they denied the same and pleaded not guilty. Thereafter, Pws.1 to 4 were recalled and cross-examined. Thereafter when the prosecution evidence are over, the accused were questioned under Section 313(1)(b) of Cr.P.C. According to the accused, the mother of the complainant has filed a suit as OS.No.14 of 2004 in the Munsiff Court, Kozhikode against the accused but no relief was granted. Thus according to the accused, it is thereafter the complainant filed the present complaint against them. Exts.D1 to D5 were marked from the side of the accused. The trial court on the basis of the rival contentions and materials and evidence on record formulated three issues for its consideration, out of which the first point is whether the accused are guilty of criminal trespass as alleged and the **Crl.Appeal No.1310/2009.** 5 second point is whether the accused are guilty of committing robbery as alleged by the complainant. The above two points finally found against the complainant mainly on the ground that the civil court has already adjudicated civil dispute to the effect that the plaintiff in OS.No.14 of 2004 could not establish their title or possession over the area where the jack tree was standing. Consequent to the above finding the accused are acquitted under Section 248(1) of the Cr.P.C. It is the above finding the order of acquittal is challenged in this appeal. 4. I have heard Sri.P.V.Kunhikrishnan, learned counsel for the appellant and I have perused the judgment of the trial court and the materials produced along with the Appeal Memorandum including the deposition of the witnesses. The learned counsel for the appellant submitted that the documentary evidence mainly the gift deed and the oral evidence of the complainant and the witness shows that the complainant and his family were in possession of the property covered by the above gift deed and it is proved **Crl.Appeal No.1310/2009.** 6 that the jack tree was standing on the north eastern corner which cut down and kept in the property of the complainant removed by the accused after trespassing into the said property. So, according to the learned counsel, overlooking the above evidence and the materials, the trial court erroneously found against the complainant and in favour of the accused. 5. In the light of the above contentions and in the light of the evidence and materials referred to by the learned Magistrate in the impugned judgment, the question to be considered is whether the appellant had succeeded in making out a prima facie case in support of his challenge against the above judgment of the trial court and further whether he succeeded in making out an exceptional circumstances or substantial reason to interfere with the order of acquittal or showing the judgment of the trial court is perverse. 6. At the outset it is to be noted that initially though the complainant has approached the police, and the police **Crl.Appeal No.1310/2009.** 7 had registered a crime, the same referred as civil dispute. It is further relevant to note that though the complainant approached the court implicating altogether 12 accused and alleging offences under Section 143, 147, 148, 441, 427, 294(b), 379, 506(ii) r/w.Section 149 of IPC, the court below took cognizance only for the offence punishable under Section 451 and 392 r/w.Section 34 of IPC that too against only the present accused two in numbers, had not taken any further steps at appropriate time challenging the order of the learned Magistrate taking cognizance only for the said offence and deleting the other accused from the party array and continuing the proceedings only against accused Nos.1 and 2. 7. It is pertinent to note that the first point formulated by the court below for consideration is whether the accused is guilty of criminal trespass as alleged. In a case for alleging criminal trespass, it is incumbent upon the person alleging the offence complained of, that he is in absolute possession over the property in question. In the **Crl.Appeal No.1310/2009.** 8 present case it can be seen that admittedly the property referred to in Ext.P1 is the property upon which the accused allegedly trespassed and taken the timber of the jack tree. The learned Magistrate has found that Ext.P4 commission report in OS.No.14 of 2004 shows that there was a stump of jack tree on the northern side of the boundary of the property. According to the accused, neither the complainant nor his mother has any right over the jack tree and the same is not situated in the property belonging to them. Considering the defence version on the basis of Ext.D5 which is the judgment of the civil court in OS.No.14 of 2004, the learned Magistrate has observed that there was a boundary dispute between complainant and the accused with respect to the eastern boundary and as per the measurement shown in the title deed, the complainant's mother and other co-owner including the complainant have no title over the property up to the boundary wall mentioned by the commissioner. Thus it is specifically found by the learned Magistrate that there is a clear civil **Crl.Appeal No.1310/2009.** 9 dispute which was adjudicated by the civil court to the effect that the plaintiff in OS.No.14 of 2004 could not establish their title or possession over the area, where the jack tree was standing. So, according to me, the complainant has not succeeded in showing that the property, to which the accused allegedly trespassed, in his possession and enjoyment. The criminal court accepted the finding of the civil court and found against the complainant on the basis of the said adjudication of the civil court. As the complainant therein has not challenged the finding of the Munsiff Court, Ext.D5 judgment has become final. Thus the learned Magistrate has concluded that unless and until the plaintiff proved his right over the property where jack tree was standing, the accused cannot be held liable for the offences charged against them and thus finally found that there is no sufficient evidence to find that the accused persons guilty of the offence of trespassing. 8. I find no fault with the above judgment of the court below especially when those findings are fully **Crl.Appeal No.1310/2009.** 10 supported by the evidence and materials on record. Having regard to the facts and circumstances which I referred to above and particularly considering the materials referred to by the learned Magistrate in the impugned judgment, I am of the view that there is no perversity or illegality in the findings of the learned Magistrate and especially when the complainant has no case that the learned Magistrate has overlooked any material or evidence which are find in favour of the complainant. So, according to me, the complainant has miserably failed in making out a prima facie case against the findings of the court below and its judgment. 9. In a recent decision of the Apex Court reported in **Pudhu Raja & Another vs. State represented by Inspector of Police** [(2013) 1 SCC (Crl.) 430 = (2012) 11 SCC 1961], the Hon'ble Apex Court has held that, “14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances **Crl.Appeal No.1310/2009.** 11 and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence, interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.” Thus, according to me, the appellant has miserably failed to make out a prima facie case in support his challenge against the findings of the court below and no compelling reasons or substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused. Therefore, the appeal fails. In the result, the above appeal is dismissed. **V.K. MOHANAN, (Judge)** **Kvs/-**