IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.477 of 2009 Between: The State represented by the Public Prosecutor, High Court of A.P., Hyderabad. .. Appellant AND Murwasad Punnareddy and 2 others .. Respondents JUDGMENT: The Criminal Appeal is directed against the judgment of acquittal in C.C.No.180 of 1995 on the ﬁle of III Metropolitan Magistrate, Visakhapatnam, dated 24-12-2007. The factual background for the appeal is that the disputed site belongs to oﬃce of the Indian Express in which D. Kameswara Rao was a Senior Time Keeper. Andhra Prabha Limited is the owner of Ac.2.84 cents in Sy.No.25/1 of Musidi gedda Thota Bhoomi, Madhavadhara village, which was purchased by it from A. Suryanarayana Rao under a registered sale deed dated 05-07-1999. On 10-04-2004 at 9.00 A.M. the accused 1 to 3 and other neighbours were claimed to have criminally trespassed into the premises of Indian Express oﬃce, cut oﬀ all the barbed wire fencing and were cleaning the area to erect the name board of Bhagya Lakshmi Estates. On information from the Senior Time Keeper, the police registered Crime No.87 of 2004 and while it was stated that Bhagya Lakshmi Real Estates ﬁled O.S.No.446 of 2004 on the ﬁle of II Additional Civil Judge’s Court, Visakhapatnam and obtained an ex parte status quo order in I.A.No.353 of 2004, the police ﬁled the charge sheet on completion of investigation under Sections 447 and 427 read with Section 34 of the Indian Penal Code. The trial Court took cognizance of the oﬀence and furnished copies of documents to the accused on their entering appearance. When they were examined under Section 251 of the Code of Criminal Procedure, they denied the oﬀence and during trial, PWs.1 to 6 were examined and Exs.P.1 to P.7 and M.O.1 were marked. No defence evidence was produced by the accused, but they denied all the incriminating circumstances appearing against them in the evidence, when they were examined under Section 313 of the Code of Criminal Procedure. The trial Court rendered the impugned judgment, ﬁrstly noting that PW.1 was unable to identify the accused when he was ﬁrst examined and he identiﬁed the accused only on the second occasion when he was examined. The trial Court also noted that PW.3 also identiﬁed only the 1 st accused, but not the 2nd and 3rd accused and PW.3 was noted to have admitted the 1st accused ﬁling O.S.No.446 of 2004 against Indian Express Limited in IV Additional Senior Civil Judge’s Court, in which the Court granted an order of status quo. The trial Court, after referring to the contentions of both sides, observed that the names of the accused were not mentioned in Ex.P.1, the earliest version, regarding the incident in spite of presence of PWs.1 and 5 allegedly at the scene at the time of incident. It was also observed that PW.1 did not even state that he can identify the accused in Ex.P.1 and did not identify the accused even before the Court in the ﬁrst instance. This failure of PW.1 was taken adverse note of and the admission of PW.3 about the pendency of the suit and the status quo orders was relied on with reference to the principle that where there is a bona ﬁde claim by the accused over the property, the trespass by the accused cannot be considered to be a criminal trespass. Apart from the absence of any independent eye-witnesses for the incident which happened during broad day light, the trial Court also noted the vacillation of PW.3 about being capable of identifying the 1st accused alone or all the three accused. The trial Court observed that it is for the Civil Court to go into the right and title of the parties and concluded that under the circumstances, the accused cannot be considered to have been proved to be guilty beyond reasonable doubt and therefore, they were acquitted. The State, which ﬁled the appeal through the learned Public Prosecutor, contended that the ingredients of the alleged oﬀences have been made out beyond doubt and the trespass attempted to enter into the land, cut oﬀ the barbed wire fencing and damage the property could not have been ignored. The title deed-Ex.P.2 and the Gift deed-Ex.P.3 showing gift of a part of the land to the Municipality should also have been acted upon and hence, it is desired that the acquittal be reversed. Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor for the appellant and Sri K. Ramesh Kumar, learned counsel, representing Sri S.R. Sanku, learned counsel for the respondents-accused are heard. The point for consideration is whether there are any convincing reasons for reversing the acquittal of the accused by the trial Court on merits? The pendency of O.S.No.446 of 2004 between the accused representing M/s. Bhagya Lakshmi Real Estates on one hand and Indian Express Limited/Andhra Prabha Limited, represented by the witnesses for the prosecution on the other is admitted and grant of an order of status quo by the trial Court at the instance of the legal entity represented by the accused is also admitted. PW.3, the Manager in Express Publications at Visakhapatnam, had positively admitted that the land appeared to be belonging to Andhra Prabha Limited as per Ex.P.2, but not Indian Express Limited at whose instance the prosecution was launched. He did not claim about any variation in the status quo orders granted by the Civil Court even by the time of his deposition and even the investigation according to the charge sheet noted the pendency of the suit and the pendency of ex parte status quo order in I.A.No.353 of 2004. The charge sheet itself refers to the Civil Court taking into account the claims of the oﬃcials of the Indian Express claiming possession and enjoyment in modifying the earlier status quo order and directing the status quo to be maintained by both the parties till disposal of the suit. The charge sheet in fact had also referred to a writ petition ﬁled by Bhagya Lakshmi Real Estates even against the police oﬃcials and the High Court granted an ex parte order against V Town police station and subsequently the writ petition was disposed of. While there is no documentary evidence before the trial Court to establish that Andhra Prabha Limited is the sister concern of the Indian Express Limited/ Express Publications Limited, it is doubtful whether the prosecution of the accused could have been successfully made at the instance of Express Publications Limited. The vacillation of PW.1 about his ability to identify the accused or otherwise also has to be considered fatal to the claims of the prosecution. PW.4, who claimed to have arrived at the scene while the accused were going away along with the coolies, did not state the same before the police in her statement. The Sub-Inspector of Police as PW.6 also had to admit that he did not mention as to how much extent was taken for lease by Indian Express or investigate whether the vacant site at which the incident happened was covered under the lease agreement. He also had to admit the pendency of the suit and the status quo orders by the time of the alleged incident and he further admitted not examining any independent witnesses with regard to the incident. He had also to admit that the damaged poles and wire were not seized and were not visible in the photographs and that even an observation report of the scene of oﬀence was not prepared and a rough sketch of the scene was also not ﬁled into Court. If so, the contention that there was a bona ﬁde civil dispute between the parties concerning the place at which the oﬀence allegedly happened has to be upheld and it is well settled that the existence of a bona ﬁde civil dispute is a good defence against allegations of mischief or trespass concerning such property. Irrespective of the existence of a bona ﬁde civil dispute also, as already stated, the failure of PWs.1 to 4 to speak with any dependable clarity and consistency about the identiﬁcation of the accused as the persons present in the group that allegedly committed the acts of trespass and mischief also makes it not possible to conclude that their guilt was proved beyond all reasonable doubt and hence, there are no strong reasons to deviate from the conclusions of the trial Court. The Criminal Appeal has to fail and is accordingly dismissed. _____________________ G. BHAVANI PRASAD, J Date: 18-11-2011 Ksn