IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Crl.L.P..No. 1433 of 2008 --------------------------- CC.666/2006 of J.M.F.C.-I, KOYILANDY .................... PETITIONER/COMPLAINANT ------------------------------------------ KRISHNAN NAIR, AGED 78 YEARS, S/O. RAMAN NAIR, RANADAMKOTT, CHETTIARAMBATH VEEDU, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK. BY ADV. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. RESPONDENT(S): ACCUSED ---------------------- 1. VAMADEVAN NAIR, S/O. RAMAN NAIR, KORATTIKKUNNUMMAL, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK. 2. BIJU, S/O. VAMADEVAN NAIR, KORATTIKKUNNUMMAL, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK. 3. BINEESH, S/O. VAMADEVAN NAIR, KORATTIKKUNNUMMAL, KURUVANGAD AMSOM DESOM, KOYILANDY TALUK. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.L.P. No.1433 of 2008 ------------------------------------- Dated this the 5th day of December, 2008 ORDER This application is for leave under Section 378(4) Cr.P.C to prefer an appeal against a judgment of acquittal in a prosecution for offences punishable under Sections 447,427 and 506(1) I.P.C. There are three accused persons. Proceedings were initiated on the basis of a complaint filed by the petitioner/complainant. The petitioner/complainant is the brother of the first accused and accused 2 and 3 are the children of the first accused. The crux of the allegations is that at 5 P.M on 05/10/2003, accused 1 to 3 trespassed into an item of property exclusively in the possession of the complainant and built a road/pathway connecting their property to the newly formed road. 2. Pws 1 to 4 were examined and Exts.P1 to P4 were marked on the side of the complainant. Accused took up a defence of total denial. According to them, no offence as alleged has taken place. PW1 is the complainant. PW2 is the wife of the complainant. PW3 is allegedly a neighbour who had witnessed the occurrence. PW4 is the Village Officer who had issued Ext.P4 certificate showing possession of PW1. Ext.P1 is the complaint. Ext.P2 is the refer report filed by the police before whom complaint was raised earlier. Ext.P3 series is the tax Crl.L.P. No.1433 of 2008 2 receipts evidencing payment of land revenue by PW1 for the property in question. 3. The learned Magistrate, on an anxious consideration of all the relevant circumstances, came to the conclusion that the complainant has not succeeded in proving exclusive possession of the property in question. I have heard the learned counsel for the petitioner/appellant in detail. The short question is whether leave deserves to be granted. 4. The complainant/PW1 claims to be in possession of an item of property measuring about 11 cents. Through that property, he alleges that, a strip of land has been acquired for the purpose of constructing a road. According to him, on the north and south of the said road, he has properties. His case is that a portion of the property in his possession on the southern side of the acquired land has been trespassed upon by the accused persons who had created an access through the complainant's property to reach the road from the property of the accused. 5. The crucial question raised before the court below was one about exclusive possession of PW1 of any property to the south of the proposed road. A specific contention appears to Crl.L.P. No.1433 of 2008 3 have been raised in the course of cross examination that after the acquisition was done, the petitioner/complainant as well as the respondents/accused have both got direct access to the proposed road. The crucial question hence is whether the petitioner/complainant has exclusive possession over any portion of the property on the southern side of the acquired property. 6. The documents produced do not at all show specifically that PW1/complainant has possession over any property to the south of the acquired property. Even a sketch of the property has not been produced. It is impossible to ascertain from the available materials whether the petitioner has exclusive possession over any property to the south of the property acquired. A specific suggestion is seen thrown at PW1 in the course of cross examination that after acquisition of land for the road, the properties of both the accused and the complainant have direct access to the road. Suffice it to say that there is no acceptable material whatsoever to throw light on that aspect. 7. The learned counsel for the petitioner heavily relies on a question thrown at PW1 in the course of cross examination that there was consent for laying access to the road from the property of the accused. This, the counsel contends, is indicative Crl.L.P. No.1433 of 2008 4 of admission of exclusive possession by PW1 over the disputed property. I am afraid, this contention cannot be accepted. The counsel relies on Section 106 of the Evidence Act to drive home the point that there has been an admission and the burden has thereupon shifted to the accused to show that they have title to the disputed property. Such a question thrown at PW1 in the cross examination will not absolve PW1 of his duty to prove his exclusive possession over the land in question. It must be seen that in the course of cross examination, the very specific suggestion was thrown at PW1 that after acquisition of the property for the road the properties of both PW1 and the accused have now got direct access to the portion acquired, ie. for the road. 8. I am, in these circumstances, satisfied that leave does not deserve to be granted. Chance of success in the appeal is a crucial factor which can enable this Court to decide whether leave deserves to be granted or not under Section 378(4) Cr.P.C. I am satisfied that leave does not deserve to be granted. 9. This leave petition is accordingly dismissed. (R.BASANT, JUDGE) rtr/-