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2004 DIGILAW 192 (KER)

Moideenkutty v. State of Kerala

2004-05-24

R.BASANT

body2004
Judgment :- R.Basant, J. The defacto complainant in a prosecution under Ss. 143,147,447 and 506(1) read with 149 I.P.C. is the revision petitioner herein. He claims to be aggrieved by the judgment of acquittal rendered in favour of 6 out of 8 accused persons who faced trial. 2. Proceedings were initiated on the basis of a complaint filed by the defacto complainant about two months after the incident took place. The alleged incident took place on 29.6.1990. Ext.Pl complaint was filed on 23.8.1990. The accused were allegedly members of an unlawful assembly who in prosecution of their common object allegedly trespassed into one cent of land allegedly in the possession of PW.1 and put up a fence. By putting up of such fence six coconut trees in a line which allegedly stood within the property of PW.1 were annexed to the property of the accused. The accused and PW.1 admittedly own adjacent properties. 3. Cognisance was taken on the basis of a final report filed by the investigating officer. The accused denied the offences alleged against them and thereupon prosecution examined PWs.1 to 6 and proved Exts.P1 to P11. The accused denied all the allegations against them. They took the stand that they had not trespassed into PW.1's property or annexed any portion thereof. According to him, the disputed one cent of land with six coconut trees standing thereon was and always had been in their possession. In these circumstances, they denied all the allegations which were raised against them. No defence witness was examined. Ext.Dl to D4 were marked. 4. The learned Magistrate, on an anxious consideration of all the relevant aspects came to the conclusion that the prosecution had not succeeded in establishing the exclusive possession of PW.1 over the disputed one cent of land. The learned Magistrate further found that the allegations regarding criminal intimidation relate only to the attempt to defend their possession by of making fence over disputed property which, according to the accused, was in their possession. The learned Magistrate did not reckon the evidence of PWs.1 to 3 as inspiring and convincing enough to accept and act upon. Accordingly, the learned Magistrate proceeded to pass the impugned j udgment of acquittal. 5. Before me learned counsel for the petitioner-defacto complainant and the respondents-accused have advanced their arguments. The learned Magistrate did not reckon the evidence of PWs.1 to 3 as inspiring and convincing enough to accept and act upon. Accordingly, the learned Magistrate proceeded to pass the impugned j udgment of acquittal. 5. Before me learned counsel for the petitioner-defacto complainant and the respondents-accused have advanced their arguments. Learned counsel for the petitioner contends that the learned Magistrate erred grossly in not accepting and acting upon the oral evidence of PWs.1 to 3. The learned Magistrate must have held that the parties were possessing their respective properties on the basis of the survey boundary between the two properties. The fence which was put up must in these circumstances have been reckoned as one put up by the accused after trespassing into the adjacent property in the possession of PW.1, it is contended. It is further urged that at any rate, the learned Magistrate must have considered the allegations regarding criminal intimidation more closely and must have accepted the evidence of PWs.1 to 3 on that aspect. 6. I must at the very outset remind myself of the nature and quality of the revisional jurisdiction vested in this Court. It is by now trite that the revisional jurisdiction of superintendence and correction cannot be lightly invoked at the instance of a defacto complainant against a judgment of acquittal founded on findings of fact. Such revisional jurisdiction should not also be invoked to interfere with discretions exercised by the Subordinate Courts in the matter of appreciation of evidence without compelling reasons. 7. Two cardinal principles have to be borne in mind. The presumption of innocence in favour of the accused stands fortified by the judgment of acquittal by the Court below. Further no Court can afford to ignore the evident advantage which a Trial Court has in the matter of appreciation of evidence. The Trial Court sees the witnesses perform in the witness stand before it and an alert Trial Court would certainly perceive valuable inputs which help the Court in the matter of appreciation of evidence. No revisional Court can afford to exercise revisional jurisdiction unmindful of these fundamental realities. 8. The Trial Court sees the witnesses perform in the witness stand before it and an alert Trial Court would certainly perceive valuable inputs which help the Court in the matter of appreciation of evidence. No revisional Court can afford to exercise revisional jurisdiction unmindful of these fundamental realities. 8. Coming to the facts of this cases the crucial dispute in this case is whether the parties were keeping possession strictly in accordance with the survey boundaries or whether they were keeping possession in accordance with the boundary which was allegedly seen and perceived by the investigating officer in Ext.P5 scene mahazar. The mahazar does of course show that the fence was a recently put up fence. Whether the parties were earlier keeping possession on the basis of this boundary which was perceived by the investigating officer or whether they were keeping possession of the adjacent properties on the basis of the survey boundary separating the properties? This, according to me, is the million dollar question which has to be resolved. It is significant that PW.1 has no case that there ever was any fence along the survey boundary separating the two properties. The Court below took note of the oral evidence of PWs.1 to 3. They were interested witnesses, it was observed. Their evidence does not also specifically show that at any prior point of time the parties were keeping possession of the adjacent properties on the basis of any existing or demolished fence along the survey boundary. 9. The Court below took note of the admission of one of the prosecution witnesses that income from the disputed six coconut trees was being taken by the accused. The learned Magistrate further took note of the fact that a prompt complaint had not been filed, though the parties had approached the Civil Court long prior to the present dispute of course relating to a disputed boundary on the other side, i.e., eastern side of PW.1 's property. 10. The learned Magistrate did further take note of the crucial fact that the coconut trees in the disputed property were more congruent to the coconut trees in the possession of the accused considering the age and nature of such trees. 11. 10. The learned Magistrate did further take note of the crucial fact that the coconut trees in the disputed property were more congruent to the coconut trees in the possession of the accused considering the age and nature of such trees. 11. Taking all the relevant inputs into account, I am unable to disagree with the findings of the Court below that the complainant has not succeeded in establishing his exclusive possession over the disputed property. The same does not at any rate warrant revisional interference. The statement in the Commissioner's Report, Ext.P10 that when the Commissioner made an earlier inspection there was no disputed fence in existence cannot be given undue importance as the Commissioner in the earlier suit was not at all concerned with the western boundary of the complainant (disputed boundary in this case). The Commissioner has not been examined also in this case. In these circumstances, the strenuous attempt made to rely on such statement in the report prepared by the Commissioner long prior to the present dispute cannot be of any help. 12. I am convinced, in these circumstances, that the prosecution has not succeeded in proving exclusive possession of the complainant over the disputed property as is expected of the prosecution in a prosecution under S.4471.P.C. The said finding of fact does not warrant interference. 13. Coming to the allegations under S.506(1) I.P.C., the allegations even if accepted in toto clearly reveals that the attempt of the accused was to fence the property to the west of the disputed boundary. The indications show that the complainant has not succeeded in proving exclusive possession. The accused were thus only attempting to protect the possession of the disputed property which, according to them, was in their possession. The evidence does not at all establish the crucial ingredients of the offence punishable under S.506(1) I.P.C. ' 14. I am, in these circumstances, satisfied that the impugned judgment of acquittal does not warrant interference. The challenge fails. 15. In the result, this Criminal Revision Petition is dismissed.