JOSEPH ANTONY vs V.M.VARGHESE

The revision petitioner herein is the defacto-complainant in C.C.No. 487/1998 of the Judicial First Class Magistrate''s Court, Ambalapuzha, and

the respondents 1 to 10 are the accused in the said case. The complainant initiated prosecution, on the allegation that a gang of persons including

the accused trespassed into the property in his possession in Survey Nos. 309/4,9, 309/6, 309/7B and 312/1 at about 8.30 am on 21.08.1998 as

part of a criminal design hatched by them, and in prosecution of the common object, they destroyed various standing trees and improvements

therein, and illegally formed a road by appropriating a portion of the property at the boundary.

All the accused appeared before the learned Magistrate and pleaded not guilty to the charge framed against them under Sections 143, 147,

148, 149, 447, 427 and 188 IPC r/w Section 149 IPC. The Police incorporated Section 188 IPC in the final report on the allegation that the

accused committed the acts of trespass and mischief in violation of the decree passed by the Munsiff''s Court, Alappuzha in O.S No. 116/1998.

For cognizance under Section 188 I.P.C, there must be a complaint by the public servant concerned. The prosecution examined eight witnesses

and proved Exhibits P1 to P6 documents in the trial court. The accused denied the incriminating circumstances when examined under Section 313

Cr.P.C, and in defence, they examined one witness as DW1 and also proved Exhibit D1. On an appreciation of the evidence, the trial court found

all the accused not guilty of any of the offences, and accordingly they were acquitted by Judgment dated 19.09.2002. Aggrieved by the judgment

of acquittal, the de facto-complainant has come up in this revision, challenging the legality and propriety of the judgment.

On hearing both sides and on a perusal of the materials, I find no scope of interference in revision, in the Judgment of acquittal of the trial court.

PW3 is the de facto-complainant and PW4 is his sister who claimed to have witnessed the entire incident. PW5 and PW6 are the two

independent witnesses examined by the prosecution. On an appreciation and examination of their evidence, I find that they are chance witnesses,

and their evidence is really artificial.

The case of PW3 is that, the alleged incident of trespass and mischief happened in the property in his possession. To prove ownership and

possession, the prosecution examined PW2 and proved the Exhibit P3 ""Thandaper Extract"". The evidence of PW2, the Village Officer, and the

Exhibit P3 document will show that the property in dispute, originally stood in the name of one Punnoose Ouseph. There is nothing to show that the

said Punnoose Ouseph is the father of PW3 and PW4. Nobody has stated in evidence regarding such relationship. There can be many persons

having the same name in the same family. It is for the prosecution to prove that the said Punnoose Ouseph in whose name the ""thandaper"" stands is

in fact the father of PW3 and PW4.

During trial, PW3 practically admitted that the property in dispute is a co-ownership property, left by his father. If so, PW4 must be one of the

co-owners. She is the direct sister of PW3. When asked by the learned defence counsel, whether she had sustained any loss due to the acts of

trespass and mischief committed by the accused, she answered in the negative. If the property is a co-ownership property, and if anybody had

committed any act of mischief therein by destroying the standing trees and improvements, there is no explanation why PW4 stated that she had not

sustained any loss. Here the prosecution case becomes doubtful.

PW5 is a person admittedly residing 15 Kms away and PW6 stated during trial that he is a relative of PW3 and PW4. The evidence of these

two witnesses is that they saw a gang of persons destroying the standing trees and improvements in the property of PW3. Specifically, their

evidence is only against the 1st accused and the 3rd accused. However, at the end of the examination-in-chief, PW5 stated that he saw only the

3rd accused cutting the branches of a tree and the others were found just standing there. This evidence cannot be consistent with the prosecution

case. PW6 claims to have witnessed the incident and he is a relative too. But PW4, who claims to have witnessed the whole incident stated during

cross examination that she had not seen PW6 anywhere at or near the scene of incident. PW4 also stated during cross-examination that no person

of the locality is a witness in the case, and nobody was cited as a witness because no person of the locality would give evidence in favour of the

prosecution. There is no reason or explanation why no person of the locality or no neighbour would give evidence in favour of the prosecution, if

the act of trespass and mischief as alleged by the prosecution had in fact occurred. It is here, the particular aspect assumes importance, that PW5

and PW6 were brought from a far away place as witnesses That is why I stated earlier that their evidence appears to be artificial and suspicious.

Practically, the only evidence to prove the prosecution case is that of PW4. The Exhibit P4 complaint was made by PW3. Admittedly, he had

not witnessed the incident. He had been away at Malappuram on the date of incident. The incident happened on 23.08.1998, but the complaint

was filed only on 12.09.1998. The prosecution has no convincing and satisfactory explanation for this delay. The evidence of PW4 is that she had

promptly informed her brother about the incident and the evidence of PW3 is that he got such information on the fourth day. If so, there is no

satisfactory explanation why he waited till 12.09.1998 to make a complaint. His explanation that he did not get leave from the office head is not

substantiated by any other material. Being a Government Servant, he could have very well availed a casual leave immediately on getting information

about the incident from PW4. I find that there is no satisfactory explanation for the delay of about three weeks in making the complaint in this case.

This is also a very doubtful circumstance.

When asked whether the witnesses could give the details of the overtact committed by each of the accused, PW5 and PW6 stated that they

cannot give such details. Their evidence is about a gang of persons. During trial, they could not specifically identify each and every accused as the

member or members of the said gang. I find that these two witnesses had not in fact witnessed the incident. It is not known why the neighbours and

persons of the locality did not come forward to give evidence in favour of the prosecution. It is here, the defence case assumes importance that the

formation of the road was a mass act committed by the people of the locality in public interest, and the complainant was also well aware of this

fact. That is why he did not make any complaint for three weeks, and probably at the instance of somebody having some interest otherwise, he

brought a complaint after three weeks.

On an examination of the entire evidence in this case, I find that the prosecution case is tainted with so many genuine doubts which the

prosecution has not been able to clear, and that the delay of three weeks in making the complaint stands not explained too. I find that the accused

were rightly acquitted by the trial court.

In the result, this revision petition is dismissed.