THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1426 OF 2004 ORDER: This appeal at the instance of the State is directed against the acquittal of the accused in C.C.No.41 of 2002 by the Additional Judicial First Class Magistrate, Parchur on 30.09.2002. The accused therein were prosecuted for the offences under Sections 427, 447 read with 34 IPC and under Sections 2 and 3 of Prevention of Damage to Public Property Act, 1984 alleging that accused Nos.1 and 2 cut down the subabul trees in the land of Mandal Tank Poramboku land in Survey No.155 within the limits of West Peddivaripalem village, within the jurisdiction of Parchur Police Station. On 03.02.2002 at about 8.00 A.M when they were getting ready to sell the cut trees, P.W.2 Village Sarpanch objected for the same and the accused paid deaf ear to her words. Thereafter, she made representation to the Mandal Revenue Officer P.W.1, Yaddanapudi Mandal on 06.02.2002 and he visited the spot and asked the accused to produce the documents and when they failed to produce the documents, he got surveyed the disputed land by P.W.3 and decided that the land belongs to Government Poramboku. Later, P.W.1 lodged a complaint with the police. P.W.11 has registered the case in Crime No.17 of 2002 and issued the FIR. Thereafter, P.W.12 Sub-Inspector of Police took up the investigation and after completion of investigation filed the charge sheet against the accused. The learned Magistrate has framed the charges under Sections 427 and 447 read with 34 IPC and Sections 2 and 3 of Prevention of Damage to Public Property Act, 1984 against the accused. Both the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.10. No oral and documentary evidence was adduced on behalf of the accused. The learned Magistrate by taking into consideration of the said oral and documentary evidence found both the accused not guilty for the offences under Sections 427 and 447 read with 34 IPC and Sections 2 and 3 of Prevention of Damage to Public Property Act, 1984 and thereby acquitted them. Aggrieved by the said acquittal, the State has filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offences under Sections 427 and 447 read with 34 IPC and Sections 2 and 3 of Prevention of Damage to Public Property Act, 1984 against the accused beyond reasonable doubt? P O I N T: The Additional Public Prosecutor has contended that the prosecution could able to establish that the accused Nos.1 and 2 has cut the subabul trees in the land of Mandal Tank Poramboku land in Survey No.155 of West Peddivaripalem village and the accused have failed to produce any document to show that they are the owners of the said property. As such, the prosecution could able to establish the charges framed against the accused. On the other hand, the respondents’ counsel has pleaded that P.W.1 is claiming that the said property is a Government Poramboku land, but failed to produce any document to show that it belongs to Government, as such the prosecution could not establish the charges framed against the accused. In order to establish the charge under Section 447 IPC, the prosecution has to establish that the accused entered into the property in possession of another with an intention to commit an offence or to intimidate or annoy any person in possession of such property. Section 427 IPC only prescribes punishment for committing mischief. Section 425 IPC defines mischief. As “whoever with intent to cause, knowing that he is likely to cause wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. Therefore in order to establish the above said charges under Sections 447 and 427 IPC, the prosecution has to prove that the property belongs to the Government as claimed by them. To establish the charges under Sections 2 and 3 of Prevention of Damage to Public Property, the prosecution has to prove that the mischief committed by the accused is on the public property. In the present case, the prosecution is claiming that the accused cut the subabul trees on the land of Mandal Tank Poramboku land belongs to the Government. In order to prove the same, the prosecution has examined the M.R.O. as P.W.1. According to him, on the report given by P.W.2, he has gone to the disputed land and enquired the accused and questioned him about the cutting of subabul trees, accused No.1 has stated to him that he cut the trees under the impression that the said land belongs to him. He asked accused No.1 to produce the title deeds and waited for 3 days, but he has not produced the title deeds. Then he lodged complaint Ex.P.1 with the police. P.W.1 further stated that he has directed the Mandal Surveyor to survey the land and submit report. P.W.3 is the Mandal Surveyor. According to him, as per the instructions of P.W.1, he conducted survey in survey No.155 under the land of tank poramboku at West Peddivaripalem on 13.02.2002 and he measured the land and marked encroachments and found 8 cents of land was encroached by accused No.1 and also found cutting the subabul trees in the encroached land and the said land is a Government land and not allotted to anybody. He submitted survey report to P.W.1. But the said survey report was not marked through P.W.3. The said survey report is marked through investigating Officer P.W.12 as Ex.P.10. Ex.P.10 is the proceedings said to have been recorded by the Mandal surveyor on 13.02.2002 and the same does not disclose about conducting of survey by him. It only shows that survey No.155 is a Cheruvu Poramboku land to an extent of 28.83 cents and for the said extent of land, no pattas were granted by the Government and the accused encroached 0.07 cents and cut the trees in the said land. Therefore, Ex.P.10 is not a survey report prepared by P.W.3 as stated by him, but it is only recording of fact that the accused encroached the 0.07 cents of land and cut the subabul trees. P.W.1 has stated that he has verified the revenue records about the land in question and then gave a complaint to the police, but he has not produced any document to show that the land in dispute is a Government land or Cheruvu poramboku land as claimed by them. Therefore, the prosecution could not establish that the land in dispute is a Government Land. The other witnesses examined by the prosecution only establishes about the cutting of trees by the accused and weighing of trees cut by the accused. When the prosecution could not establish that the land in dispute, on which the trees were cut by the accused, is a public property, the lower Court has rightly observed that the prosecution has failed to establish the charges under Sections 427 and 447 read with 34 IPC and Sections 2 and 3 of Prevention of Damage to Public Property Act, 1984. Thus, the lower Court has rightly acquitted the accused for the above said charges and the said finding of the lower Court does not warrant any interference by this Court in the appeal. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 30th September, 2011 Ksp