Imbichi v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`** **Crl.L.P..No. 548 of 2012 ()** **--------------------------AGAINST THE JUDGMENT IN CC.109/2009 of J.M.F.C.-I, THAMARASSERY, DTD.31.3.2011** **PETITIONER(S)/COMPLAINANT:** **-------------------------** **IMBICHI, AGED 52 YEARS S/O.LATE KANDAN, KIZHAKKE KUNNUMAL HOUSE PARAPPANPOYIL,RAROTH AMSOM DESOM** **BY ADVS.SRI.S. RAJEEV** **SRI.K.K.DHEERENDRAKRISHNAN** **RESPONDENT(S)/ACCUSED AND STATE:** **-------------------------------** ## **1. STATE OF KERALA** **REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-682031.** **2. SATHYAN S/O.KANARUKUTTY, EKKANNIKKARA HOUSE,** **PARAPPANPOYIL-673573, RAROTH AMSOM, DESOM** **3. VALSALA,** **W/O.SATHYAN, EKKANNIKKARA HOUSE PARAPPANPOYIL-673573, RAROTH AMSOM, DESOM** **BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 AND R3 BY ADV. SMT.S.HYMA, PUBLIC PROSECUTOR FOR R1** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.548 of 2012 ------------------------------Dated this the 3[rd] day of October, 2012.** ## **O R D E R** The complainant, in a private complaint for the offence punishable under section 447, 427 r/w 34 of IPC, is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal, challenging the order dated 31.3.2011 in C.C.No.109 of 2009 of the court of the Judicial First Class Magistrate-I, Thamarassery, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that he has got 15 cents of property at Parappanpoyil wherein he is residing with his family. The accused is his neighbour and according to the complainant, on 11.11.2008 while the workers of the complainant were about to cut and remove a tree from his property, the accused two in numbers, who 2 ## **Crl.L.P.No.548 of 2012** are the husband and wife, in furtherance of their common intention had criminally trespassed into the property and had prevented the attempt to cut the tree and the accused has also caused mischief in the property. Thus the accused has committed the offence punishable under section 447, 427 r/w 34 of IPC. On issuing the summons, the accused appeared and when the particulars of the offence read over and explained to them, they pleaded not guilty. Hence the evidence was recorded. Pws.1 to 3 were examined from the side of the complainant and no document is produced. No evidence adduced from the side of the defence. The trial court after an elaborate consideration of evidence and materials on record, was not prepared to act upon the complaint and the evidence of the complainant, and accordingly found against the complainant and acquitted the accused. According to the learned Magistrate, admittedly, O.S.No.70 of 1999 was decreed in favour of the complainant which shows that there was a long standing civil dispute between the complainant and the accused who 3 ## **Crl.L.P.No.548 of 2012** are having properties lying adjacent. The learned Magistrate in his judgment, particularly in para 6, it is specifically found that, according to PW1, the very same witness who was examined in this case, happened to witness the subsequent event on 29.1.2008, when the accused were alleged to have trespassed in the property again on the second time. The learned Magistrate has found that PW2 has given evidence, deposing that he had witnessed the incident on 11.1.2008 but has deposed nothing about the second incident which allegedly happened on 29.1.2008. But according to PW3, he had witnessed both the incidents. So on the basis of the above facts and circumstances, the learned Magistrate has held that, the evidence of PW1 that Pws.2 and 3 had witnessed the subsequent incident and that the evidence of PW3, that he had witnessed the very same subsequent incident, appears to be quite unnatural and PW2 did not speak about the second incident also. So the learned Magistrate was not prepared to believe the evidence of Pws.2 and 3 and also 4 ## **Crl.L.P.No.548 of 2012** **-** the evidence of PW1 the complainant herein who is in enemical terms to the accused due to the existing civil dispute. 3. The learned Magistrate has also found that the evidence on record does not reveal that the alleged crime spot falls within the property of PW1, especially when the complainant did not produce any document that the place of incident falls within his property. No document is produced to show that there was a decree in favour of the complainant. In the absence of any evidence regarding the place of the incident, according to the court below it cannot be said that the complainant has succeeded in proving the offence under section 447 of IPC that the accused has committed trespassed. 4. It is also relevant to note that the learned Magistrate has observed that there is not even an allegation in the complaint that the accused has committed any mischief in the property by which PW1 had sustained a loss. Absolutely no evidence is produced by the complainant to 5 ## **Crl.L.P.No.548 of 2012** show that the complainant being a victim suffered a loss of atleast `100/- upwards. So on the basis of the above evidence and materials and the above discussion, the learned Magistrate came into the conclusion that the complainant has failed to prove the commission of offences by the accused and also failed to establish the basic ingredients of the offences and accordingly held that the accused are entitled to get an acquittal. 5. It is on the basis of the above discussion and the findings which are supported by the evidence and materials on record, the learned Magistrate came into the conclusion that the accused are not guilty of the offences and not liable for punishment. The above reasoning and discussion of the learned Magistrate appears to be correct and the complainant has miserably failed to prove the essential ingredients of section 447, 427 r/w 34 of IPC. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to interfere with the findings of the court below and to acquit the accused, especially when the 6 ## **Crl.L.P.No.548 of 2012** petitioner had failed to show that the judgment of the trial court is perverse or illegal. 6. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of 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 his innocence.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the presumption of innocence bolstered as per the 7 ## **Crl.L.P.No.548 of 2012** judgment in question. 7. Therefore, I find no reason to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed as the same is devoid of any merit. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge