IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 Crl.Rev.Pet.No. 533 of 2011() ----------------------------- CC.718/2009 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------------- G.SUKUMARAN NAIR, AGED 74 YEARS, S/O.GOVINDAPILLAI, KIZHAKKUTHOTTASSERY HOUSE, KOMANA, AMBALAPUZHA P.O., AMBALAPUZHA. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO RESPONDENT(S): COMPLAINANT/ACCUSED ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, AMBALAPUZHA IN CRIME 122/2009. 2. REGHU NATHAN NAIR, S/O.NARAYANANPILLAI, AGED 75, SREEMANGALAM VEEDU, AMBALAPUZHA SOUTH, P/W-10. 3. SREEKUMAR, S/O.REGHUNATHAN NAIR, AGED 44, SREEMANGALAM VEEDU, AMBALAPUZHA SOUTH, P/W-10. 4. RAVIKUMAR, S/O.REGHUNATHAN NAIR, AGED 36, -DO-. PUBLIC PROSECUTOR SRI. V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.533 OF 2011 ---------------------------------------------- Dated this the 29th day of March, 2011. ORDER The challenge, at the instance of the defacto complainant, in this revision petition is against the acquittal recorded by the learned Magistrate under Section 255(1) of Cr.P.C in favour of the accused who are the respondents herein. 2. In fact, Crime No.122/2009 was registered in the Ambalapuzha Police Station on receipt of a complaint, preferred by the revision petitioner, from the Judicial First Class Magistrate Court, Ambalapuzha under Section 156(3) of Cr.P.C. The allegation in the said complaint is that the accused due to their previous enmity towards the revision petitioner connected with the property dispute and in furtherance of their common intention caused loss to the revision petitioner, after criminally trespassed into the property of the revision petitioner, which situate on the western side of his house at about 8.30 p.m on 21.10.2007 and removed the fence and fencing stone and thereby caused loss of Rs.5,000/-. Thus, according to the revision petitioner/ the defacto complainant, the accused who are in three numbers committed the offences punishable under Section 447, Crl.R.P.NO.533 OF 2011 2 427 r/w Section 34 of IPC. The Police after investigation filed the report based upon which cognizance was taken for the said offence and accordingly, CC.No.718/2009 was instituted in the above court. During the trial of the above case, PWs. 1 to 6 were examined and Exts.P1 to P4 were marked from the side of the prosecution. Though no defence witness is examined, Exts.D1 and D2 were marked. Finally, the trial court found that the accused are not guilty for the offences charged against them and accordingly, they are acquittal. It is the above acquittal challenged in this revision petition. 3. I have heard Sri. A.X.Varghese learned counsel appearing for the revision petitioner and also the learned Public Prosecutor. I have also perused the impugned judgment of the trial court. 4. At the outset, it is to be noted that though the Police is the Investigating Agency, the Police has not filed any appeal or revision against the acquittal recorded by the learned Magistrate and the present revision petition is preferred by a private party who is the defacto complainant in the above case. While exercising the revisional jurisdiction, against the order of acquittal, at the instance of a private party, revisional jurisdiction of this Court is very limited. Crl.R.P.NO.533 OF 2011 3 5. Now let us examined the findings of the trial court and its correctness. Admittedly, a civil dispute is pending between PW1 the prosecution witness at one side and accused on the other side. The dispute is with respect to the boundary of the property and civil suit was pending, which was initiated at the instances of the revision petitioner and the said suit is stand dismissed now. According to the learned Magistrate when PW1 was examined, in the chief examination itself he had clearly deposed that in the incident he did not suffer any loss and though the accused hurt him and did not affect him and therefore, he did not go to the hospital. The learned Magistrate further found that the defacto complainant himself has stated that the dispute is with respect to the boundary of the property and therefore, it cannot be held that the accused has trespassed into the property. The learned Magistrate has also found that though PW1 has got a case that the accused removed the fence and fencing stone from the property of PW1, he had deposed that they newly put up a boundary and planted fencing stones and that he did not suffer any loss because of the said act of the accused. Further relying upon Ext.D2 interim report of the commissioner that produced in Ext.D1 suit, the learned Magistrate has found that the commissioner had directed above Crl.R.P.NO.533 OF 2011 4 the parties to cut and removed the trees standing on the boundary and that the complainant had consented to put up fence on the boundary. Ext.D2 is filed on 13.6.2007 and subsequently, the suit was dismissed on 27.6.2007. The trial court has also found on the basis of the deposition of the prosecution witness that the accused put up the boundary on 21.10.2007 and therefore, according to the learned Magistrate the defacto complainant not put up any fence in the boundary as agreed to the commissioner. The learned Magistrate has also found that the complaint was filed with the delay of one and half years and no explanation was offered by the defacto complainant for such delay. Thus, it can be seen that in order to arrive the finding that the prosecution has not established the case against the accused, the learned Magistrate has assigned sufficient reason. 6. The learned counsel for the revision petitioner though took me through the deposition of PW1 and submitted that the findings of the learned Magistrate is against the evidence, learned counsel failed to substantiate the same. The petitioner miserably failed to point out any perversity in appreciating the evidence or any procedural violation, so as to interfere with an order of acquittal while exercising the revisional jurisdiction. Crl.R.P.NO.533 OF 2011 5 This Court is not expected re-appreciate the evidence so as to interfere with an order of acquittal. In the light of the materials and evidence referred to above, on the basis of which the learned Magistrate came to the conclusion that even PW1 the defacto complainant has no opinion that the accused has committed any loss of his property, especially when the accused put up a boundary and the new boundary is still in dispute, I find no reason to interfere with the order of acquittal recorded by the trial court. The Apex Court has held time and again that unless there are sufficient reason the superior court shall not interfere with the order of acquittal and thereby to disturb the double presumption available in favour of the accused. In the result, there is no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE pm