IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 Crl.Rev.Pet.No. 587 of 2000() ----------------------------- CC.693/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER/DE FACTO COMPLAINANT: ------------------------------------------------- SICILY, W/O.VAZHAPPILLY PORINCHU, PUTHUR DESOM, KAIPARAMBU VILLAGE, THRISSUR TALUK BY ADV. SRI.N.P.SAMUEL RESPONDENTS/ACCUSED: ----------------------------- 1. SUBRAMANIAN, S/O.APPU, KAIPPARAMBU VILLAGE, PUTHURU DESOM, KAIPARAMBU VILLAGE, PUTHUR, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R1 PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.R.P No.587 of 2000 -------------------------- Dated this the 13th July, 2009 O R D E R This revision is filed against the order of acquittal. First respondent -accused was charge sheeted for offences under Sections 447, 427 and 506 (ii) of the Indian Penal Code ( for short “IPC”). After trial by Magistrate's Court, he was acquitted of the said offences. Hence this revision is filed by the de facto complainant, PW1. 2. According to prosecution, on 7.2.1997 at about 12 noon, accused committed criminal trespass by entering into the property of PW1, who is the husband of PW1 and he committed mischief by demolising fence on the southern side of the property. When PW1 obstructed the act of the accused, he criminally intimidated PW1 by getting into the property showing a chopper. A loss of Rs.2,000/- was also suffered by the action of the accused. 3. To prove the prosecution case, PW1 to PW6 and Exhibits P1 to P3 were marked. Accused denied prosecution case and the evidence appearing against him. The trial court found that it is not safe to act upon Crl.R.P No.587 of 2000 2 uncorroborated testimony of PW1 regarding the incident and accused was extended the benefit of doubt. The trial court held that prosecution did not produce any document to prove the ownership of the property and material objects at the scene were not seized or produced. The main reason for rejecting the prosecution case in respect of trespass was on account of non-production of any documents. 4. Learned counsel for revision petitioner argued that this is not a case where there is no evidence relating to the ownership or possession of the property in question. It is submitted that PW1's evidence is corroborated by the evidence of PW2 regarding the mischief and trespass committed by the accused. Though PW2 turned hostile, a portion of his evidence can be taken into account, it is argued. It is also pointed out that in the scene mahazar, there is clear mention of destruction of the fence. 5. It was further submitted by petitioner's counsel that in the light of the evidence of PW2, it cannot be said that there was no incident at all, as contended by the accused. It is also submitted that PW3 has stated that the Crl.R.P No.587 of 2000 3 property belongs to him. In the light of the submissions made, I have gone through the records and the judgments challenged in this revision. It appears that the prosecution case was rejected on the question of criminal trespass, mainly for the reason that no document was produced to prove ownership of the property where the offence was allegedly committed. 6. On non-production of evidence, an adverse inference can be drawn, only if the evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. To draw presumption under Section 114 (g) of the Evidence Act, there has to be some evidence on record to show that it is possible to produce some evidence in court but it is withheld since it may go against the person who withholds it. 7. So it is essential to find out whether evidence discloses that any document relating to the property is in existence and whether the prosecution withheld it for the reason that it may go unfavourable to the prosecution. The mere non-production of document is not sufficient to draw Crl.R.P No.587 of 2000 4 adverse inference under Section 114 (g) of the Evidence Act. The trial court ought to have examined whether it has come out in evidence that the document if any is in existence and if that is withheld. But, that is not done. 8. The trial court also appears to be under the impression that the mere existence of a “case” between accused and owner of the property will be sufficient to reject the prosecution case on trespass. The trial court relied upon existence of a dispute between accused and PW3 as a circumstance to reject the prosecution case. This approach is also not proper. The court below must consider whether a finding can be entered that there is no trespass only because a dispute exists between accused and owner of the property. 9. The evidence of PW3 is that there was a case between the father of accused and PW3, and there was a judgment in favour of PW3 and that was the reason for the incident. The trial court ought to have looked into this fact while appreciating evidence. No reason is stated in the judgment as to why the above evidence is discarded. The Crl.R.P No.587 of 2000 5 trial court ought to have considered the probability of an incident to occur in the light of evidence of PW3 that there was a judgment in his favour. 10. PW1 and PW2 gave evidence that the property belongs to PW3. It is true that PW3 admitted in cross- examination that a case was pending before this Court on the date of incident. Whether the case was in respect of the property in question or not, is not looked into by the trial court. Without doing so, it may not be proper for any court to infer that the said case was also with respect to the rights on the property in which the incident happened. 11. The court cannot act upon surmises especially in the absence of evidence on the most crucial fact in this case which would tilt the balance. PW1 deposed that accused criminally trespassed into the property belonging to her husband and demolished the fence. PW2, though was treated as hostile, also stated in evidence that he had seen the incident while he was going to his house on a cycle. He stated that he had seen the fence being demolished. He did not implicate the accused. The fact that there was Crl.R.P No.587 of 2000 6 demolition of the fence is stated by PW2, which is in corroboration of evidence of PW1. 12. PW6 is the investigating officer and he has given evidence that in the First Information Statement it was stated that the property was in possession of PW3 and that the said fact is correct. He also stated that he had verified the said fact. It is true that he admitted in cross- examination that he “understood” that there was a civil case between the accused and PW3. The accused has no case that there was any civil case between PW3 and the accused. Further it was not brought out from the evidence of PW6 whether the said case was in respect of the property in question. 13. On the basis of some vague answers given in evidence, it may not be proper to come to any conclusion, particularly regarding possession in respect of the place of occurrence. As per the evidence of PW1 itself, the property belongs to her husband, PW3. It is also in the evidence of PW3 that the said property belongs to him. The case was between PW3 and the father of the accused and the Crl.R.P No.587 of 2000 7 property lying adjacent to his property is that of the father of the accused. These details were not properly taken into account by trial court while reaching conclusions. 14. It is needless to say that it is not the ownership of the property, but it is the possession, which is relevant in cases of criminal trespass as seen from Sections 441 read with 447 IPC. The trial court was harping much upon owner of the property and question of possession was not considered at all. Trial court did not appreciate evidence in the proper perspective, but acted upon surmises, in the absence of evidence. In the above circumstances, I find that the order of acquittal is not proper and is liable to be set aside. The matter requires a rec-consideration in accordance with law. In the result, the following order is passed: (i) The order of acquittal passed in favour of first respondent is set aside. (ii) This case is remanded to the trial court for reconsideration and disposal in accordance with law after giving an opportunity to adduce evidence, if any, as this Court deem fit and proper. Crl.R.P No.587 of 2000 8 (iii) The case being an old one, this case shall be disposed of by the Magistrate Court within a period of three months from the date of receipt of records and the judgment in this case. The Criminal Revision Petition is allowed. Sd/- K.HEMA, JUDGE vgs /True copy/ P.S to Judge