Moideenkutty vs State of Kerala

R. Basant, J.—The defacto complainant in a prosecution under Sections 143 147 447 and 506(1) read with 149 I.P.C. is the revision

petitioner herein. He claims to be aggrieved by the judgment of acquittal rendered in favour of 6 out of 8 accused persons who faced trial.

Proceedings were initiated on the basis of a complaint filed by the defacto complainant about two months after the incident took place. The

alleged incident took place on 29.6.1990. Ext. P1 complaint was filed on 23.8.1990. The accused were allegedly members of an unlawful

assembly who in prosecution of their common object allegedly trespassed into one cent of land allegedly in the possession of PW. 1 and put up a

fence. By putting up of such fence six coconut trees in a line which allegedly stood within the property of PW. 1 were annexed to the property of

the accused. The accused and PW.l admittedly own adjacent properties.

Cognisance was taken on the basis of a final report filed by the investigating officer. The accused denied the offences alleged against them and

thereupon prosecution examined PWs. 1 to 6 and proved Exts. P 1 to P11. The accused denied all the allegations against them. They took the

stand that they had not trespassed into PW.l''s property or annexed any portion thereof. According to him, the disputed one cent of land with six

coconut trees standing thereon was and always had been in their possession. In these circumstances, they denied all the allegations which were

raised against them. No defence witness was examined. Ext. Dl to D4 were marked.

The learned Magistrate, on an anxious consideration of all the relevant aspects came to the conclusion that the prosecution had not succeeded in

establishing the exclusive possession of PW.l over the disputed one cent of land. The learned Magistrate further found that the allegations regarding

criminal intimidation relate only to the attempt to defend their possession by of making fence over disputed property which, according to the

accused, was in their possession. The learned Magistrate did not reckon the evidence of PWs. l to 3 as inspiring and convincing enough to accept

and act upon. Accordingly, the learned Magistrate proceeded to pass the impugned judgment of acquittal.

Before me learned counsel for the petitioner- defacto complainant and the respondents-accused have advanced their arguments. Learned

counsel for the petitioner contends that the learned Magistrate erred grossly in not accepting and acting upon the oral evidence of PWs.l to 3. The

learned Magistrate must have held that the parties were possessing their respective properties on the basis of the survey boundary between the two

properties. The fence which was put up must in these circumstances have been reckoned as one put up by the accused after trespassing into the

adjacent property in the possession of PW. 1, it is contended. It is further urged that at any rate, the learned Magistrate must have considered the

allegations regarding criminal intimidation more closely and must have accepted the evidence of PWs. 1 to 3 on that aspect.

6.1 must at the very outset remind my self of the nature and quality of the revisional jurisdiction vested in this Court. It is by now trite that the

revisional jurisdiction of superintendence and correction cannot be lightly invoked at the instance of a defacto complainant against a judgment of

acquittal founded on findings of fact. Such revisional jurisdiction should not also be invoked to interfere with discretions exercised by the

Subordinate Courts in the matter of appreciation of evidence without compelling reasons.

Two cardinal principles have to be borne in mind. The presumption of innocence in favour of the accused stands fortified by the judgment of

acquittal by the Court below. Further no Court can afford to ignore the evident advantage which a Trial Court has in the matter of appreciation of

evidence. The Trial Court sees the witnesses perform in the witness stand before it and an alert Trial Court would certainly perceive valuable inputs

which help the Court in the matter of appreciation of evidence. No revisional Court can afford to exercise revisional jurisdiction unmindful of these

fundamental realities.

Coming to the facts of this cases the crucial dispute in this case is whether the parties were keeping possession strictly in accordance with the

survey boundaries or whether they were keeping possession in accordance with the boundary which was allegedly seen and perceived by the

investigating officer in Ext.P5 scene mahazar. The mahazar does of course show that the fence was a recently put up fence. Whether the parties

were earlier keeping possession on the basis of this boundary which was perceived by the investigating officer or whether they were keeping

possession of the adjacent properties on the basis of the survey boundary separating the properties? This, according to me, is the million dollar

question which has to be resolved. It is significant that PW.l has no case that there ever was any fence along the survey boundary separating the

two properties. The Court below took note of the oral evidence of PWs. 1 to 3. They were interested witnesses, it was observed. Their evidence

does not also specifically show that at any prior point of time the parties were keeping possession of the adjacent properties on the basis of any

existing or demolished fence along the survey boundary.

The Court below took note of the admission of one of the prosecution witnesses that income from the disputed six coconut trees was being

taken by the accused. The learned Magistrate further took note of the fact that a prompt complaint had not been filed, though the parties had

approached the Civil Court long prior to the present dispute of course relating to a disputed boundary on the other side, i.e., eastern side of

PW.l''s property.

The learned Magistrate did further take note of the crucial fact that the coconut trees in the disputed property were more congruent to the

coconut trees in the possession of the accused considering the age and nature of such trees.

Taking all the relevant inputs into account, I am unable to disagree with the findings of the Court below that the complainant has not succeeded

in establishing his exclusive possession over the disputed property. The same does not at any rate warrant revisional interference. The statement in

the Commissioner''s Report, Ext.P10 that when the Commissioner made an earlier inspection there was no disputed fence in existence cannot be

given undue importance as the Commissioner in the earlier suit was not at all concerned with the western boundary of the complainant (disputed

boundary in this case). The Commissioner has not been examined also in this case. In these circumstances, the strenuous attempt made to rely on

such statement in the report prepared by the Commissioner long prior to the present dispute cannot be of any help.

12.1 am convinced, in these circumstances, that the prosecution has not succeeded in proving exclusive possession of the complainant over the

disputed property as is expected of the prosecution in a prosecution u/s 447 I.P.C. The said finding of fact does not warrant interference.

Coming to the allegations u/s 506(1) I.P.C., the allegations even if accepted in toto clearly reveals that the attempt of the accused was to fence

the property to the west of the disputed boundary. The indications show that the complainant has not succeeded in proving exclusive possession.

The accused were thus only attempting to protect the possession of the disputed property which according to them, was in their possession. The

evidence does not at all establish the crucial ingredients of the offence punishable u/s 506(1) I.P.C.

I am, in these circumstances, satisfied that the impugned judgment of acquittal does not wan-ant interference. The challenge fails.

In the result, this Criminal Revision Petition is dismissed.