Marimuthu @ Boyan and Others vs Bagyammal

K.M. Natarajan, J.—This revision is directed by the accused in C.C. No. 456 of 1984 on the file of the Judicial First Class Magistrate,

Erode challenging their conviction under S.426 I.P.C. and the sentence to pay a fine of Rs. 30 in default to suffer simple imprisonment for one

week.

The brief facts which are necessary for the disposal of this revision are as follows: The respondent herein filed a private complaint under Ss.147,

148, 427, 447 and 506(II) I.P.C. alleging that these petitioner accused trespassed into her premises on 14.6.1983 at 8 a.m. that they were armed

with stick, crowbar, spade and aruval and that they demolished the house belonging to her (P.W.1) and caused damage. In support of the same,

besides examining herself as P.W.1 she examined two other witnesses P.Ws.2 and 3 and marked Ex.P.1 and P.2. The accused denied the offence

as false. No witness was examined on their side. The trial magistrate acquitted the accused of the offence under Ss.147, 148, 427 and 447 I.P.C.

However he convicted the accused under S.426 I.P.C. and sentenced each of them to pay a fine of Rs. 30/- Aggrieved by the same this revision is

filed.

The learned counsel for the petitioners challenged the conviction and sentence on the ground that though the occurrence is alleged to have taken

place on 14.6.1983 the complaint was filed in court on 21.11.1983 after a lapse of five months. The alleged complaint said to have filed before

police has not been filed in court and the delay of 5 months in filing the complaint in court is not explained. This aspect has not been considered by

the court below while convicting the petitioners. The non-production of the complaint said to have been filed before police is fatal to the case of the

prosecution. The learned counsel would submit that the witnesses examined in this case namely P.Ws.2 and 3 are chance witnesses and their

evidence in respect of the alleged occurrence should not be accepted. According to the learned counsel when the accused were acquitted of the

offence under Ss.147, 148, 447 and 427 I.P.C. on the ground that the complaint has not proved ownership and possession the question of

conviction of the accused under S.426 I.P.C. for causing damage to the premises does not arise.

The learned counsel for the respondent drew the attention of this court to the copy of the telegram Ex.P.1 and the receipt for the same Ex.P.2.

The telegram is said to have been given on 25.6.1983 about 11 days later which also does not contain any detail. It is only stated that the house of

the complainant was broken by Marimuthu (first accused) and his sons and she prayed for safety and action immediately. It is not stated in the said

telegram that a complaint has been given to police on the very same day of the occurrence and no action has been taken. After hearing the

arguments of the learned counsel appearing on either side and after going through the impugned order as well as the materials on record I find that

the learned magistrate having acquitted the accused in respect of the offences under Ss.147, 148, 427 and 447 I.P.C. is not justified in convicting

the accused under S.426 I.P.C. especially in view of the finding that the complainant has not established the ownership and possession of the

disputed item. Further the failure to summon the complaint given to the police and mark the same on the side of the respondent complainant is

certainly fatal to the case of the prosecution especially in a case of this nature. There is absolutely no explanation as to why the said complaint was

not marked. If the complaint is filed it would advance the case of the respondent. There was no discussion at all in the whole of the judgment. The

trial Magistrate has not A1 all considered the contentions on behalf of the petitioners and the answers elicited in cross examination of the witnesses

in arriving at the conclusion that the petitioners are guilty under S.426 I.P.C. Thus on a careful consideration of the entire materials on record I am

of the view that the conviction of the petitioners under S.426 I.P.C. is not sustainable and the wrong approach of the court below has led to the

conviction of the petitioners.

In the result, the revision is allowed and the conviction and sentence awarded to the petitioners under S.426 I.P.C. are set aside. The fine

amount if any paid is directed to be refunded to the petitioner.