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2006 DIGILAW 692 (KER)

Moopumura Kulasu Naikar v. Manoj

2006-10-12

R.BASANT

body2006
Judgment :- The revision is directed against a judgment of acquittal rendered by the learned Magistrate in a prosecution under section 447 and 427 r/w 34 of I.P.C. There are two accused persons in the case. 2. The proceedings were initiated on the basis of the complaint filed by PW1 a litigant who was appointed as receiver in the suit filed by him. He alleged that the offences of criminal trespass and mischief were committed by the accused persons in furtherance of their common intention. The alleged offences were committed in respect of 60 cents of property allegedly involved in the suit. Loss to the tune of Rs.60,000/- was allegedly caused. 3. Proceedings were initiated on the basis of private complaint filed by PW1 before the Magistrate. The same was referred to the police. After completing the investigation final report was filed and cognizance was taken by the leaned Magistrate. Consequent to the plea of not guilty raised by the petitioner the prosecution examined PWs 1 to 5 and proved Exts. P1 to P4. Accused took up a defence of total denial. The accused contends that he has not committed trespass or mischief as alleged by the complainant/prosecution. Exts. D1 to D5 were marked on the side of the accused. 4. The court below came to the conclusion that there is no satisfactory evidence to prove possession of the property in question by PW1 who claims have come into possession as a receiver on the strength of the order of court. PW2 is a relative of PW1. PW3 is the manager of PW1 and PWs 4 and 5 are workers of PW1. The court below came to the conclusion that the evidence of PWs 1 to 5 does not afford sufficient assurance for the version of the prosecution that the accused person had trespassed into any property in the exclusive possession of PW1 and had committed the alleged mischief - of plucking coconuts from the coconut trees standing in the property. 5. The court below appears to have looked for evidence about the exclusive possession of PW1. He was appointed as the receiver. It came out that there was a dispute about the identity of the property and PW1 had not reported to the court that he had taken over possession after identification of the property in question. 5. The court below appears to have looked for evidence about the exclusive possession of PW1. He was appointed as the receiver. It came out that there was a dispute about the identity of the property and PW1 had not reported to the court that he had taken over possession after identification of the property in question. There was an indication to show that there was a cow shed in the property. But grievance was not taken against the putting up of such cow shed. The specific grievance was only that the coconuts were plucked from the trees in the property. The court below, fairly reasonably and legitimately pointedly looked for specific evidence about the location of the trees from which coconuts were allegedly plucked. No specific and satisfactory evidence was forthcoming on this aspect. The court below did not in these circumstances choose to place reliance on the oral evidence tendered by the witnesses. Though mischief was allegedly committed in respect of coconut trees standing on the property covered by the order appointing PW1 as receiver, there was no specific evidence to come to a specific conclusion that the trees stood in such property. 6. To me it appears that the court below was absolutely justified in looking for specific evidence of exclusive possession of PW1 over the property in question. The trees from which the coconuts were plucked had not been specifically identified nor has there been any satisfactory tangible evidence that the trees were standing within the property in the exclusive possession of PW1. I am in these circumstances satisfied that the court below has committed no error justifying or warranting interference by invocation of the revisional jurisdiction. 7. The counsel prays finally that there may be remand to the court below in as much as the investigating officer has not been examined. The omission to examine the investigating officer is not of any crucial significance in the facts and circumstances of this case where evidence of identity of the property must necessarily come forth from PW1 and his witnesses, the dispute bring about their rights over the property. I am not certainly satisfied that the investigating officer was not examined. But each and every defect /inadequacy in conduct of the case cannot persuade this Court to invoke his revisional jurisdiction. I am not certainly satisfied that the investigating officer was not examined. But each and every defect /inadequacy in conduct of the case cannot persuade this Court to invoke his revisional jurisdiction. There is no case at all that the Investigating officer had got the property identified by any process known to law. I do not in these circumstances find any merit in this revision petition. The same is dismissed in limine.