IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 Crl.Rev.Pet.No. 2175 of 2010() ------------------------------------------ CRA.85/2006 of ADDL. SESSIONS COURTS (ADHOC), MAVELIKKARA CC.188/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... REVN. PETITIONER(S): DEFACTO/COMPLAINANTS ------------------------------------------------------------------------- 1. N.SIVADASAN, S/O.NARAYANAN, AGED 60 YEARS, KUZHIVELIL THARAYIL, VALLIKUNNAM VILLAGE, MAVELIKKARA. 2. GOURIKUTTY, W/O.KUMARAN, AGED 70 YEARS, NOW RESIDING AT VANDANAM HOUSE, VALLIKUNNAM VILLAGE, MAVELIKARA. 3. K.KUMARAN, S/O.KUNJURAMAN, AGED 72 YEARS, RESIDING AT VANDANAM HOUSE, VALLIKUNNAM VILLAGE, MAVELIKKARA. 4. KAVITHA, W/O.AJAYAKUMAR, AGED 32 YEARS, AAVANI HOUSE, ELIPPAKULAM POST, VALLIKKUNNAM VILLAGE, MAVELIKKARA. BY ADVS. SRI.R.SANTHOSH BABU SRI.S.PRAKASH RESPONDENT(S): APPELLANTS/ACCUSED & STATE --------------------------------------------------------------------------- 1. SIVANANDAN, S/O.GOPALAN, AGED 50 YEARS, CHAITHANYA HOUSE, VALLIKUNNAM MURI, VALLIKUNNAM VILLAGE, MAVELIKKARA. 2. SUNDARESHAN, S/O.KUTTAPPAN, AGED 40 YEARS, SUDHEESH BHAVANAM VALLIKUNNAM POST, VALLIKUNNAM VILLAGE, MAVELIKKARA. 3. GOURI, AGED 67 YEARS, D/O.KUNJU PILLAI, RAMESH BHAVANAM, VALLIKKUNNAM MURI, -DO-. 4. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R4 BY PUBLIC PROSECUTOR STI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl.R.P. No.2175 of 2010 ------------------------------- Dated this the 6th day of October, 2010. O R D E R This revision petition is filed by the defacto complainant in C.C.No.188/04 of the Court of Judicial First Class Magistrate- Kayamkulam, challenging the judgment dated 6.3.2010 in Crl.A.No.85/06 of the Court of Addl. Sessions Judge Fast Track (Ad hoc)-Mavelikara, acquitting the accused. 2. The prosecution case is that PW1's nephew, who is working in gulf had purchased 50 cents of property and a building therein from one Ramesan, the son of the 3rd accused and out of the enmity on 11.7.2003 at about 12 O' clock in the night, the accused four in number in furtherance of their common intention criminally trespassed into the house of PW1 and broke open the main door with a stick declaring that the house is meant for the accused alone and the second accused inflicted a blow on the left hand of PW2 with a stick and when PW2 intervened, the accused 1 to 4 manhandled PW2 also. It is also the case of the 2 Crl.R.P. No.2175 of 2010 prosecution that, PW3 intervened with A3 from doing further acts and while so, third and 4th accused beat and fisted, when PW3 prevented the accused from doing the illegal act. It is also the case of the prosecution that, when PW2 prevented the act of the first accused with his left hand, he sustained fracture on his left ring finger, an injury on middle finger and index finger respectively. The 2nd accused also inflicted injury on left eyebrow of PW4 with a stick. In the occurrence PW3 sustained a loss of a gold chain weighing 4.5 sovereigns and thereby sustained a loss of Rs.30,000/-. It is also alleged that certain mischief was also committed by the accused, with respect to the house hold articles and window glasses of the house. 3. On the basis of the said allegation Crime No.128/03 was registered in the Vallikunnam Police Station for the offence punishable u/s.452, 323, 324, 326, 427 r/w S.34 of IPC. After investigation, police filed a report upon which cognizance was taken and instituted C.C.No.188/04 the Court of Judicial First Class Magistrate-Kayamkulam. During the trial, Pws.1 to 9 were examined and Exts.P1 to P7 were also marked from the side of 3 Crl.R.P. No.2175 of 2010 the prosecution. From the side of the defence, Dws.1 to 3 were examined and Exts.D1 to D8 were marked. On the basis of the above evidence and materials the trial court found that the accused had committed the offence punishable u/s.452, 323, 324, 326, 427 r/w S.34 of IPC and on such conviction, the accused were sentenced also. Challenging that conviction and sentence, all the accused preferred an appeal and by judgment dated 6.3.2010 in Crl.A.85/06, the Court of Addl. Sessions Judge Fast Track (Ad hoc), Mavelikara, acquitted the accused of all the offences alleged against them, after setting aside the conviction endorsed by the trial court. It is the above order of acquittal challenged in this revision petition by the defacto complainant. 4. I have heard the learned counsel appearing for the revision petitioner Adv.Sri.S.Prakash and I have also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently submitted that, on the basis of the available materials and record, the trial court has found guilt of the accused and accordingly they were convicted and appropriate 4 Crl.R.P. No.2175 of 2010 sentence are imposed and without assigning any valid reasons, the appellate court interfered with the order of conviction and acquitted the accused. The learned counsel reiterating the grounds taken in the memorandum of revision petition, submitted that there are sufficient materials and evidence to connect the accused with the alleged incident. 6. I have carefully considered the arguments advanced by the learned counsel and I have also perused the judgments of both the courts below. 7. At the outset it has to be noted that, though the case was investigated and a report was filed by the police and cognizance was taken on the basis of such a report, the investigating agency has not turned up and no appeal or revision filed against the acquittal of the accused. As I indicated earlier, the present revision petition is filed by the defacto complainant. 8. The specific case of the complainant is that, the property in question is belonged to the revision petitioner/defacto complainant and including the revision petitioner and other prosecution witnesses, were in possession of the disputed house 5 Crl.R.P. No.2175 of 2010 on the basis of the sale deed obtained from Ramesan, who is the son of the 3rd accused. So the main plank of the prosecution case is that, the accused trespassed into the property of PW1 and other witnesses, and thus thereby committed the offence punishable u/s.452 r/w 34 of IPC. The appellate court has specifically found that there is no evidence to show that the property was purchased by the nephew of PW1, as alleged and no evidence was produced by the prosecution to prove the ownership or possession over the building and the property in favour of the prosecution witness. Whereas, according to the appellate court, Exts.D1 to D7 would show that the property continued in the possession of Ramesan on the date of occurrence and merely because the title is passed over, it could not be said that the possession is also passed over. The appellate court has pointed out that, the non examination of said Ramesan, as witness to prove the sale deed executed by him is vital defect against the prosecution. It is also come on record that, DW2 filed a civil suit for recovery of money wherein the disputed property shown in the schedule and the suit. It is also 6 Crl.R.P. No.2175 of 2010 on record that, another case was pending between the 3rd accused and the prosecution witness as O.S.No.308/03 in the Munsiff's Court, Kayamkulam. According to the appellate court, Ext.D3 is the commission report in that case, though the same is an exparte report and still the commission report is admissible to show that the property was in the possession of Ramesan. 9. Thus the entire prosecution case is set up on the basis of the alleged purchase of the property in question, by PW1's nephew. The appellate court by assigning proper and sufficient reasons, has doubted the fact as to whether Pws.1 to 4 started residence in the disputed building on the date of occurrence. Accordingly, the appellate court has concluded that the logical conclusion is that on the strength of the alleged sale deed obtained by PW's nephew one Ramesan, an attempt was made to trespass into the property and building and on the date of occurrence, the 3rd accused was residing along with family in that property. Thus the appellate court has further held that, unless and until the prosecution witnesses adduce any evidence to show that they have right to enter into the property as of right, 7 Crl.R.P. No.2175 of 2010 they could not alleged that the accused had attacked them and inflicted injuries on them. The evidence in this case would show that, the property and the building involved in the case, are of disputed possession. Therefore, I find no illegality in the findings of the appellate court that unless and until there is a clear evidence that, PW1 and others were residing in the disputed property on the date of occurrence, the allegation of house trespass alleged against the accused is unsustainable in law. So in the absence of any cogent evidence and materials to come into a conclusion that the property in question is in the possession of Pws.1 to 4 and that they are the owner of the property, it can not be said that the accused has trespassed into the property, especially when serious civil litigations are pending between the prosecution witnesses on the one side and the accused on the other side. It was under above scenario, the appellate court interfered with the order of conviction and acquitted the accused assigning valid and proper reasons. 10. The revision petitioner has miserably failed to make out a case that the appellate court has committed manifest the error 8 Crl.R.P. No.2175 of 2010 or in non compliance of any procedure of law, so as to interfere with an order of acquittal, by exercising the revisional jurisdiction of this court. As I indicated earlier, going by the judgments of the appellate court it can be seen that the appellate court after reappreciating the evidence on record came into a conclusion that, the respondents herein/ the accused, are not guilty and I find no compelling reason or substantial grounds to interfere with such an order of acquittal. In the result, I find no merit in the revision petition and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/