IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 Crl.Rev.Pet.No. 73 of 2002 ------------------------------------ CC.NO.292/1999 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR. .................... REVISION PETITIONER/ DEFACTO COMPLAINANT: ------------------------------------------------------------------------ PUTHIYEDATH VEETIL PADMINI, MEPPARAMBATH HOUSE, P.O.KUTTIYATTUR, VIA. MAYYIL, KANNUR DISTRICT. BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENTS/ ACCUSED & STATE: ----------------------------------------------------- 1. VINOD KUMAR, KUTTIATTOOR, KANNUR DISTRICT. 2. SATHEESH KUMAR, KUTTIATOOR, KANNUR DISTRICT. 3. UNNI @ UNNIKRISHNAN, KUTTIATOOR, KANNUR DISTRICT. 4. MOHANAN, KUTTIATOOR, KANNUR DISTRICT. 5. STATE, (SHO, IRIKKUR) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO R4 ADV. MR.T.A.RAMADASAN, R5 BY PUBLIC PROSECUTOR SMT. M.K. PUZHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 73/2002: ORDER ON CRL.M.P. NO. 451/2002 IN CRL.R.P.NO.73/2002 CLOSED 02/04/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.73 OF 2002 () ----------------------------------- Dated this the 2nd day of April, 2009 O R D E R The revision is filed by the defacto complainant challenging the judgment of acquittal rendered in favour of the respondents, four in number, who had been prosecuted for the offences punishable under Sections 143, 147,447, 427 read with 149 of IPC on a charge laid by the S.I. of Police, Irikkur Police Station. 2. The gist of the prosecution case set up against the accused is that on the evening of 7.1.1999, at about 6.30 p.m., accused as members of an unlawful assembly consisting of about 50 persons armed with deadly weapons, committed criminal trespass over the property of the defacto complainant/revision petitioner, having an extent of 59 cents in RS.43/1 and 30 cents in RS.43/1B in Kuttiyattoor village, and caused extensive damages by cutting down valuable tress, CRL.R.P.73/02 2 and, thereby, the defacto complainant sustained a loss of Rs.15,000/-. A complaint was filed before the Magistrate Court against five persons including the present respondents, and it was referred to police for investigation and report under Section 156 (3) of Cr.P.C. Pursuant to such reference, a crime was registered and, after investigation, charge was laid indicting the respondents four in number for the offence punishable under Sections 143, 147,447, 427 read with 149 of IPC. The accused on appearance, pleaded not guilty to the charges framed. Prosecution examined PWs.1 to 6 and got marked Exts.P1 to P4 to prove his case. The accused, when questioned under Section 313 of Cr.P.C., maintaining their innocence contended that the allegation of constructing a road trespassing upon the property of the defacto complainant was false. They also examined one witness as DW1 to substantiate their defence. The learned Magistrate, after appreciating the materials produced, found the accused not guilty and there upon they were acquitted. Questioning the legality, propriety and correctness of the acquittal, the defacto complainant has filed this revision. CRL.R.P.73/02 3 3. I heard the learned counsel for the revision petitioner/defacto complainant and also the learned counsel for the respondents. The main thrust of attack to challenge the acquittal canvassed by the learned counsel for the defacto complainant was that there was misappreciation of evidence and that has resulted in miscarriage of justice. The case ended in the acquittal of the accused for the reason there was delay in setting the law in motion, and further, the prosecution failed to establish the title and possession over the property with the defacto complainant, which is alleged to be criminally trespassed upon by the accused to form a new road. The defacto complainant before filing a complaint before the court had approached the Police, and on account of political influence exerted by the accused, no case was registered, is the submission of the counsel to contend that the delay in approaching the court after the occurrence was justified in the facts and circumstances of the case. Relying on Ext.P4 possession certificate issued by the Village Officer, it was contended that the certificate so produced is sufficient to CRL.R.P.73/02 4 establish the possession of the property involved with the defacto complainant, and the court below went wrong in holding that no material was produced to prove the possession of the property with the defacto complainant. On the other hand, the learned counsel for the accused submitted that there is absolutely no legal evidence in the case to inculpate any of the accused for the offences imputed and the judgment of acquittal rendered in their favour does not warrant any interference. 4. I have perused the records giving consideration to the submissions made by the counsel of both sides. In examining the challenges raised against the judgment of acquittal passed in favour of the accused, it has to be pointed out that the revisional court can interfere with the order of acquittal only on satisfaction of justifiable grounds to do so since the acquittal reinforces his innocence. Perusing the materials tendered by the prosecution, it is seen that in evidence, the defacto complainant, examined as PW1 to prove the occurrence, stated that the accused as members of an CRL.R.P.73/02 5 unlawful assembly, criminally trespassed upon his property and caused damages, cutting down valuable trees causing a loss of Rs.15,000/-. No other material was produced to prove such occurrence. PW2, her husband was not an ocular witness. PW3 was only an attestor to Ext.P2 scene mahazar prepared during the course of investigation. PW4 is the Head constable who registered the FIR when the complaint was referred from the court. PW5 is the investigating officer who conducted investigation of the crime. PW6, who was cited to prove the incident turned hostile to the prosecution denying the witnessing of the occurrence. He was subjected to cross examination, still, nothing was brought out to sustain the prosecution allegations set up in the case. So much so, in the given facts of the case, the question emerging for consideration is whether implicit reliance on the solitary testimony of PW1, the defacto complainant, to sustain the prosecution case against the accused was possible. In that backdrop, the delay in filing of the complaint has to be examined. Though PW1 stated in her evidence that the case was not registered because of the inaction of the police due to CRL.R.P.73/02 6 political interference, it is interesting to note that she had no such allegation in the complaint presented before the court. She had filed a civil suit a day before the occurrence and obtained prohibitory injunction against the 1st accused from trespassing upon the property, and thereafter, flouting the order of injunction, the accused committed the offence imputed, was her complaint. Delay of six days in filing the complaint cannot be considered as an innocuous circumstance in the given facts as not affecting the merits of the prosecution case. Similarly, conclusion reached by the learned Magistrate on the materials produced that there was no legal evidence proving the title and possession of the property, which was alleged to have been trespassed upon, with the defacto complainant, PW1, cannot be stated to be incorrect. Ext.P4 is the possession certificate purported to have been issued by the Village Officer. On what basis he issued that certificate has not been proved in the case. The Village Officer was not examined as a witness. Through the investigating officer, the document was marked, which alone will not be sufficient to conclude that the property was possessed by the defacto CRL.R.P.73/02 7 complainant as a title holder or in any other capacity. Not only the possession but the identification of the property on which the trespass was alleged to have been committed, and materials showing the trespass is necessary, to found a conviction against the accused, which was totally lacking in the case. So much so, the decision formed by the learned Magistrate on the available materials that the accused are not guilty of the offences imputed and, thus, acquitting them of the offences is proper, valid and correct. Revision is devoid of merit, and hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.73 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 2nd April, 2009