IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Crl.L.P..No. 576 of 2008() -------------------------- CC.710/2002 of J.M.F.C.-II,NEYYATTINKARA .................... PETITIONER/COMPLAINANT ----------------- JOHN BRITO, S/O.ARUNAMBARAM, THATHAPILLA THOPE, SOUTH KOLLENGODE, POZHIYOOR, KULATHUR, THIRUVANANTHAPURAM NOW RESIDING AT ZION COTTAGE, KANJIKUZHY, UCHAKADA DESOM, KULATHOOR, THIRUVANANTHAPURAM BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS/ACCUSED NO.2 AND STATE ------------- 1. ASANTHA W/O.VINCENT, PATHIVILAKOM VEEDU, POZHIYOOR DESOM, KULATHUR, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.L.P.No.576 of 2008 ---------------------------------------- Dated this the 25th day of June 2008 O R D E R This application is for grant of leave under Section 378(4) cr.P.C to challenge a judgment of acquittal in a prosecution for offences punishable inter alia under Sections 447 and 427 I.P.C. 2. The crux of the allegations in the complaint is that on 05/10/2001 at 5 a.m accused Nos.1 and 2, spouses with the intention to trespass into the property of the complainant trespassed into the property and indulged in acts of mischief. The complainant is the brother of the second accused who is the wife of the first accused. In support of the allegations, the complainant examined himself as PW1 and examined another witness as PW2. Exts.P1 to P6 were marked. 3. Exts.P1 to P6 were marked to show that the complainant is the owner in possession of the property in question. The property originally belong to the complainant and his brother and he is alleged to have purchased the brother's right in the property as per Ext.P6 during the pendency of the proceedings. Admittedly, there were civil litigations between the Crl.L.P.No.576/2008 2 parties about the right, title, interest and possession of the property in question. Exts.P1 to P5 are documents on the disputed question of possession/right over the property. 4. PW1 is not a witness to the occurrence. Only PW2 was examined to prove the allegations about the overt acts. The learned Magistrate took note of the fact that the offences are allegedly committed in respect of an item of property regarding which there is dispute between the brother and sister. The court further took note of the fact that at any rate the uncorroborated evidence of PW2 cannot be accepted and acted upon to enter the verdict of guilty and conviction against the accused. 5. Leave is sought to prefer an appeal. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this court sitting as a court of appeal considering the challenge against a judgment of acquittal. PW2 was the only witness who tendered evidence about the alleged incident. The learned Magistrate felt that reliance could not be placed on such uncorroborated testimony. I am unable to find anything so grossly erroneous or any other vice in the said finding which does require correction by interference in an appeal against Crl.L.P.No.576/2008 3 acquittal. The trial court, it must always be remembered, has the evident advantage of seeing the performance of witnesses performing before it. Initial presumption of innocence in favour of the witnesses gets further fortified by the judgment of acquittal rendered by the trial court also. In any view of the matter, I am not satisfied that there is any merit or justification in the prayer for appellate interference against the impugned judgment of acquittal. No purpose will be served by granting leave. I am satisfied that leave does not deserve to be granted. 6. This Crl.L.P is in these circumstances dismissed. (R.BASANT, JUDGE) jsr