IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 Crl.Rev.Pet.No. 820 of 2001() ---------------------------------- CRA.269/1998 of ADDL. SESSIONS COURT, ALAPPUZHA CC.550/1991 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S):APPELLANTS/ACCUSED ------------------------------------------------------ 1. PRAKASAN, S/O. RAGHAVAN, PARAVELY VELIYIL VEEDU, MANNANCHERY PANCHAYAT, WARD NO.7, MANNANCHERY VILLAGE. 2. DASAN, S/O. KUNJUPILLA,PARAVELY VELIYIL VEEDU, MANNANCHERY PANCHAYAT, WARD NO.7, MANNANCHERY VILLAGE. 3. SOMAN, S/O. RAGHAVAN,PARAVELY VELIYIL VEEDU, MANNANCHERY PANCHAYAT, WARD NO.7, MANNANCHERY VILLAGE. 4. KESAVAN, S/O. KADUTHA, CHANTHATHOPPUVELI VEEDU, MANNANCHERY PANCHAYAT, WARD NO.11, MANNANCHERY VILLAGE. 5. SANTHA, D/O. NARAYANI, PARAVELY VELIYIL VEEDU, MANNANCHERY PANCHAYAT, WARD NO.7, MANNANCHERY VILLAGE. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUILAM, KOCHI - 31. BY PUBLIC PROSECUTOR SMT.REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.820 OF 2001 ------------------------------------------------- Dated this the 8th day of March, 2011. ORDER The accused in CC No.550/1991 of the court of Judicial First Class Magistrate -I Alappuzha are the revision petitioners. 2. The allegation against the accused revision petitioner is that at about 5.30 p.m. on 8.5.1991 the accused in furtherance of their common intention to commit criminal trespass and the mischief, formed themselves into an unlawful assembly and in furtherance of common object of the unlawful assembly, the accused trespassed in to the property lying in survey No.A1- 11691/1991 of Mannanchery Village, which belonged to PW2 and demolished the fencing on the east and western side as well as hut situated in the property belonged to PW2 and thereby caused damages to the tune of Rs. 2,000/- to PW2. PW2 went to the Muhamma Police Station at about 9.30 p.m on the date of incident, i.e on 8.5.1991 and launched Ext.P1 FI statement on the basis of which crime No.87/1991 was registered in the Muhamma Police Station for the offence punishable under Section 143, 147,149,447 and 427 on IPC against the petitioners and two other persons. After the investigation in the above Crl.R.P.NO.820 OF 2001 2 crime, Police preferred report on the basis of which cognizance was taken and CC No.550/1991 was instituted in the above trial court. During the trial of the case PWs. 1 to 5 were examined from the side of the prosecution and Exts.P1 to P4 were marked. From the side of the defence DW1 was examined and Ext.D1 was marked. MO1 to MO3 were identified and marked as Material Objects. Initially by judgment dated 28.9.1995 the learned Magistrate acquitted the accused 255(1) of Cr.P.C and against the above order of acquittal, the defacto complainant namely in PW2 preferred a revision petition before the Sessions Court, Alappuzha and by order dated 29.3.1997 in Crl.R.P.No.102/1995 the learned Sessions Judge, after setting aside the order of acquittal of the trial court and remanded the matter back to the lower court and thereafter on reconsideration of the matter the learned Magistrate has found that the prosecution has succeeded in establishing the offences under Section 143,427,447 against the accused and accordingly, by judgment dated 31.10.1998 the revision petitioner were convicted and sentenced to pay fine of Rs.500/- each for offence under Section 143 IPC. For offences under Section 447 IPC also the revision petitioner were sentenced to pay fine of Rs.500/- each. Rupees Crl.R.P.NO.820 OF 2001 3 1,000/- each was imposed against the revision petitioner for the offence Under Section 427 of IPC. The revision petitioners were acquitted for the offence under Section 147 IPC. 3. Challenging the above conviction and sentence the revision petitioner had preferred an appeal before the Sessions Court, Alappuzha and by judgment dated 24.4.2001 in Crl.Appeal No.269/98 the court of Addl. Sessions Judge, Alappuzha dismissed the appeal confirming the conviction and sentence on the revision petitioner. Thus, the present revision petition is preferred challenging the conviction and sentence imposed against the revision petitioners by the trial court as well as the appellate court. 4. I have heard Sri. T.H.Abdul Azeez, learned counsel appearing for the revision petitioner and the learned public Prosecutor. 5. The learned counsel for the revision petitioner vehemently submitted that the prosecution has miserably failed to establish the ownership, title and possession of the property in question that is covered by Ext.P3 scene mahazar. According to the learned counsel in the absence of any evidence regarding those aspect the findings of the courts below against the revision Crl.R.P.NO.820 OF 2001 4 petitioner is liable to be set aside and they are entitled to get an acquittal. 6. On the other hand, the learned Public Prosecutor submitted that the trial court as well as the appellate court rightly convicted the revision petitioner on the basis of the evidence adduced by the prosecution. The learned Public Prosecutor submitted that Ext.P3 scene mahazar as well as the material objects collected from the scene of occurrence would show that the prosecution allegation is true and therefore, according to the revision petitioner no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the learned Public Prosecutor and I have perused the judgment of the courts below and the materials on record. The alleged incident was taken place at about 5.30 p.m on 8.5.1991. According to the prosecution the six cents of property lying in survey No.A1- 11691/91 of Mannanchery Village belonged to PW2 and on the date of the incident the fencing and the hut were demolished by the accused after having trespassed into the property. A crime was registered on the basis of Ext.P1 FI Statement launched by PW2 in the Muhamma Police Station, after registration of the Crl.R.P.NO.820 OF 2001 5 case the Police undertook the investigation and they proceed to the spot and prepared Ext.P3 scene Mahazar. At the time of scene mahazar MO1 to MO3 articles were also seized. It is true that PW1 turned hostile to the prosecution, but PW2 and 3 have categorically deposed before the court in terms of the prosecution allegation and as observed by the trial court as well as the appellate court, though they were subjected to lengthy cross examination nothing was brought out to discredit their version. Ext.P3 is a contemporary document prepared by the police during the investigation immediately after the registration of the crime. I am not proposed to repeat the deposition of PW2 and 3 which were carefully scrutinized by the trial court as well as the appellate court. As indicated earlier no illegality or irregularity is pointed out to reject their deposition. The only contention raised by the revision petitioner is that the deposition of DW1 and Ext.D1 would show that there was no hut in the place of occurrence during the period of 1990-91 and 91-92. According to me, the above evidence of the defence are not sufficient to hold that there was no hut or fence. Normally, the Panchayath authorities are expected to assign building number only, when the residents are approached such local body. It Crl.R.P.NO.820 OF 2001 6 cannot be said that there will not be any residential building including thatched house or hut, unless the same are find a places in the register of the local authorities or without house numbers. Going by the evidence to PW2 as rightly appreciated the trial court as well as the appellate court, PW2 purchased six cents of property from one Asharaf for a total consideration of Rs.8,000/- and there was a thatched house in that property. According to me, even to attract Sections 447 and 427 of IPC, the ownership of the aggrieved person over the property is inevitable. If the assailants trespassed into the property which is in the possession of the aggrieved person is sufficient to attract Section 447 IPC and any mischief if committed in that property necessarily Section 427 would also attracted. In the present case the oral evidence of PW2 and 3 supported by Ext.P3 scene mahazar would show that PW2 was in possession of six cents of property in Survey No.A1-11691/91 of Mannanchery Village, which is the place of occurrence and Ext.P3 and MO1 to MO3 would further show that there was a thatched house and fencing around the house which found in a demolished position. If that be so, according to me, the trial court as well as the appellate court correct and legal in its findings. Therefore, I find no Crl.R.P.NO.820 OF 2001 7 reason to interfere with the concurrent findings and the conviction recorded by the trial court as well as the appellate court. 8. Regarding the sentence, it is relevant to note that trial court opted to impose only a fine and no sentence of imprisonment is awarded against in the revision petitioner. The appellate court also confirmed the sentence as well. Therefore, there is no scope for any interference with respect to the sentence also. In the result, there is no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE pm