IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 CRL.A.No. 819 of 2003(A) ------------------------ CC.561/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVUR .................... APPELLANT: COMPLAINANT: ------------------------------------------ MADHANAN, S/O. VAMADEVAN, AGED 62, KRISHNALAYAM VEEDU, POOTHAKULAMCHERRY, POOTHAKULAM VILLAGE. BY ADV. SMT.BEENA JOHN RESPONDENTS: ACCUSED: --------------------- 1. BALACHANDRAN, S/O. PADMANABHAN, SRI VILASAM, EAST OF EZHAMVILA TEMPLE, POOTHAKULAM CHERRY, POOTHAKULAM VILLAGE. 2. PUSHPA LATHA, -DO- -DO-. 3. ANANDAVALLY, -DO- -DO-. 4. PRASANNA, -DO- -DO-. 5. SATHYADEVAN, -DO- -DO-. BY ADV. SRI.B.SURESH KUMAR FOR R1 TO R5 SMT.T.V.NEEMA FOR R1 TO R5 BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.819 of 2003 ---------------------------------------------- Dated, 5th September, 2008. JUDGMENT Challenging the judgment dated 9.10.2002 in C.C.No.561/98, the complainant preferred the above appeal against the acquittal. 2. C.C.No.561/98 is instituted in the Judicial First Class Magistrate Court-I, Paravoor on taking cognizance upon the protest complaint filed by the appellant herein. The allegation against the accused is that on 26-1-97 at about 7.30 a.m., the complainant got information that the accused have jointly trespassed into the property of the complainant and are engaged in clipping grass from his property and cutting and removing branches of a mango tree and that when the complainant went to the spot and saw the accused engaged in the above activities, and on questioning the said illegal activities of the accused, it is averred that the Ist accused uttered abusive words against him and tried to stab on him with knife and the other CRL.A.819/03 -:2:- accused had thrown stones over the complainant and throw of the 2nd accused hit on the chest of the complainant and he sustained swelling there. The throw of accused Nos 3 to 5 hit on his right ankle and right shoulder. It is the further case of the complainant that when the neighbours gathered, the accused ran away from the spot. It is also the case of the appellant/complainant that though the complaint was sent for investigation under section 156(3) Cr.P.C., to the Paravoor police station, they referred the case against which, the complainant/appellant preferred a protest complaint and the court below recorded the sworn statement of the complainant and thereafter took cognizance for the offences under sections 447, 427, 323, 506(ii) and 34 of IPC against the accused/respondents. Pursuant to the summons issued from the court, respondents/accused appeared and pleaded not guilty which resulted for a further trial during which PWs 1 and 2 were examined. The accused/respondents were questioned under section CRL.A.819/03 -:3:- 313 Cr.P.C. and they denied the allegations. During the Section 313 questioning, the accused raised defence to the effect that the 2nd accused had filed a complaint against the appellant's son as C.C.200/97 and thus the present complaint was filed to defeat that case and without any bona fides. The court below based upon the contentions advanced by both the parties formulated six issues and after the evidence found that the complainant has miserably failed to establish the guilt of the accused beyond doubt and by giving the benefit of doubt, all the accused were acquitted vide the impugned judgment. It is the above order of acquittal is challenged in this appeal. 3. I have heard the counsels in the matter and perused the materials and evidence on record. 4. The learned counsel for the respondents pointed out that the case referred to in the impugned judgment, namely, C.C.200/97 also ended in acquittal as per the judgment of the same trial court against which an appeal, i.e., Crl.A.No.1225/2001, was filed before this Court and CRL.A.819/03 -:4:- the same was also dismissed by this Court by judgment dated 7.9.2004. 5. As stated earlier, the allegation in the complaint is to the effect that on 26.1.97 at 7.30 a.m., the accused trespassed into the property of the appellant/complainant and the accused have cut and removed the branches of a mango tree and when the complainant questioned the same, he was attacked. In support of the above allegation contained in the complaint, the complainant himself examined as PW-1. During cross examination, PW-1 has admitted about the filing of C.C.200/97 by the 2nd accused/2nd respondent herein. PW-2 who was cited as occurrence witness stated that the accused trespassed into the property of the complainant and they attacked the complainant. But after the evaluation of the evidence adduced by the complainant through the oral testimony of the complainant himself and PW-2, the trial court came into the finding that the complainant has miserably failed to establish the case against the accused beyond CRL.A.819/03 -:5:- reasonable doubt. The trial court found that in the complaint though it is alleged that the accused have assaulted the complaint, no specific case of assault was alleged against the accused. But when PW-1 was examined, he had stated before the court that the Ist accused tried to stab him with chopper. In the complaint the specific case against the Ist accused is that he has cut and removed a mango tree from the property of the complainant but when he was testified in the court, he had stated that some branches of the tree were cut and removed. The trial court also found that though section 427 IPC was incorporated in the complaint, when the complainant was examined no mischief was made out. After evaluation of the deposition of PW-2, the court has found that he is not a trustworthy witness and the court came into such conclusion on the basis of the different stand taken by PW-2 during the chief examination and the cross examination. According to PW-1, the accused 2 to 4 had thrown stones over him and by the throw of the 2nd CRL.A.819/03 -:6:- accused, he sustained swelling on his chest. On the other hand, when PW-2 was examined he deposed that the accused had only gravel on the complainant and no stones were thrown. During cross examination, PW-2 admitted that he does not know the overt act of each of the accused. Thus the court below found that the evidence of PW-2 is not helpful and cannot be taken as a corroborative evidence of the evidence of PW-1, and further found that the evidence of PWs-1 and 2 varies on material aspects. The trial court is of the opinion that though the complainant has cited several witnesses, except P.Ws-1 and 2, no other witnesses were examined and the non examination of such witnesses itself creates a doubt in the mind of the court below. The court below evaluated the evidence of PWs 1 and 2 with the background of the fact that both the parties were on inimical terms for the last several years and a criminal case was pending filed by the 2nd accused against the complainant's son. The trial court has also found that because of the enmity CRL.A.819/03 -:7:- between the parties, and when the accused took a specific stand that the present complaint was filed with a view to defeat the case pending against the son of the complainant, the burden is on the complainant to establish and prove his case beyond all reasonable doubt. Thus, after the evaluation of the materials and evidence on record, the trial court came into the conclusion that the complainant has miserably failed to establish his case beyond doubt and by extending the benefit of doubt in favour of the accused, the trial court acquitted all the accused. 6. Now the challenge is against the order of acquittal passed by the court below. On a re-appreciation of the evidence and the materials on record, I find that the appellant has miserably failed to make out a case warranting the interference of this Court against the order of acquittal. 7. In this juncture, it is relevant to note that the parties are distant relatives and were on inimical terms CRL.A.819/03 -:8:- for the last several years and criminal cases were initiated against each other. It is also relevant to note that this Court by the judgment dated 7.9.2004 dismissed Crl.A.No.1225/2001 which was preferred against the order of acquittal in C.C.200/97 in which the 2nd accused/2nd respondent herein was the complainant. Considering the totality of the facts and circumstances involved in the case, especially in the light of the discussion contained in the foregoing paragraphs, I am of the opinion that this appeal is devoid of any merit. In the result, this Crl.Appeal is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.A.819/03 -:9:- V.K.MOHANAN, J. CRL.A.No.819 OF 2003 Judgment Dated:5-9-2008.