THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1464 OF 2009 JUDGMENT: 1. This Criminal Appeal, under Section 378(4) Cr.P.C., is preferred against the judgment dated 16.8.2008 in C.C. No.2189 of 2006 on the file of the V Additional Judicial Magistrate of First Class, Rajahmundry, whereunder and whereby the respondents 2 to 5/A.2 to A.5 were acquitted of the charges under Sections 447 and 427 I.P.C. 2. The appellant/complainant filed a private complaint alleging that himself and the accused belong to one family. A.1 is brother of complainant, A.2 is son of A.1, A.3 is brother’s son of complainant, A.4 is cousin of the complainant and A.5 is the son of A.4. The complainant is owner of house bearing door no.4-32 and its appurtenant site situated at Purushothapatnam, hamlet of Ramachandrapuram and he is in possession and enjoyment of the property. A.1 relinquished his share as per family agreement effected in the year 1982 and since then the property was in possession and enjoyment of the complainant and he sold some part of the property to one M.Varahalamma under registered sale deed dated 26.9.1992 and she constructed a house thereon. At the instance of A.1, A.3 filed a suit in O.S. No.2 of 1994 against him and his vendee and A.1 got filed suit against him through A.2 in O.S. No.342 of 1994 with fabricated documents with a dishonest intention to reclaim the property. A.1 to A.5 along with two gundas and two advocates armed with crowbars and sticks came to his house on 3-4-94 at about 10.30 a.m. and high-handedly removed the fencing to an extent of 3 yards situated to the south of his house, and all of them entered into vacant site and threatened him with crowbars and sticks and threw away chairs, cots and other articles and A.1 raised stick with a view to beat him, on seeing that he caught hold of the stick and they forcibly dispossessed him. 3. To substantiate his case, the complainant examined P.Ws. 1 to 3, but no documents were marked. 4. When the accused were examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against them in the evidence complainant witnesses, they denied the same. No oral or documentary evidence was adduced on behalf of the accused. 5. Considering the evidence on record, the trial court acquitted the accused. Challenging the same, the present appeal is preferred by the appellant/complainant. 6. The learned counsel for the appellant contended that, the evidence of P.Ws.1 to 3 is very clear that they were in possession of the property in question and the accused trespassed into the house of P.W.1 and caused damage, and therefore, the offences under Sections 447 and 427 I.P.C. is attracted. 7. Now, the point for determination is whether the complainant proved his case against the accused beyond all reasonable doubt of the offences under Sections 447 and 427 I.P.C. ? 8. There cannot be any dispute that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. Unless there are substantial or compelling reasons, this court will not normally disturb the findings of the trial Court. If the trial court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 9. The case of P.W.1 is that the accused threw away articles from the thatched shed in the disputed property and caused damage. But, he admitted that he did not mention the said fact in the complaint and did not state the same in the sworn statement. The trial court observed that, A.2 obtained a decree of injunction in Original Suit No. 342 of 1994 against P.W.1 in respect of the self-same property. The decree and judgment in the suit, was confirmed in Appeal Suit No.43 of 2001. The schedule property in the said suit and the property in which the accused allegedly made trespass, are one and the same. The competent civil court gave a finding that A.2 was in possession of the property. When P.W.1 was not shown to be in possession of the property in question by the date of the incident, the question of trespass does not arise and consequently causing mischief also does not arise. The trial court, after an elaborate consideration of the evidence on record, rightly acquitted the accused and there are no grounds to interfere with the same. 10. The Criminal Appeal is, accordingly, dismissed, at the state of admission, confirming the judgment dated 16.8.2008 in C.C. No.2189 of 2006 on the file of the V Additional Judicial Magistrate of First Class, Rajahmundry. ------------------- (K.C.Bhanu, J.) 04.11.2009 Drk THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1464 OF 2009 Date: 04.11.2009 Between: Kavi Ramachandra Murthy …Appellant And Kavi Venkata Subba Rao (died) & others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1464 OF 2009 4.11.2009