Dismissed

Ulahannan John v. Yeshodha.K

Kerala HC18 Feb 2013Crl.L.P./106/2013

Case brief

AI extract

What is this about?

High Court of Kerala denied leave to appeal to challenge a trial court acquittal in a prosecution for rioting and criminal trespass over a property boundary dispute. The court found the trial court's reasoning regarding the civil nature and ambiguities of evidence cogent, and the acquittal was not perverse.

What did the court decide?

Leave petition dismissed as the acquittal judgment was not found to be perverse or illegal.

Ulahannan John Vs Yeshodha.K — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934

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Crl.L.P..No. 106 of 2013

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AGAINST THE ORDER/JUDGMENT IN CC.141/2008 of J.M.F.C.-I,HOSDRUG DATED 22-11-2012

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PETITIONER:COMPLAINANT:

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ULAHANNAN JOHN, AGED 72 YEARS, S/O.JOHN,

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VAIDYAR, PATHIRIKUNNU, AJANNUR VILLAGE, HOSDURG TALUK.

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BY ADVS.SRI.T.SETHUMADHAVAN

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SRI.PUSHPARAJAN KODOTH

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SMT.SOLIMMA ANTONY

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RESPONDENTS:ACCUSED & STATE:

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YESHODHA.K, AGED 49 YEARS, D/O.KUMARAN, VELLIKKAL, KOTTAPPARA, PANAYAL, PULLUR VILLAGE.

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KUMARAN, AGED 70 YEARS, VELLIKKAL, KOTTAPPARA, PANAYAL, PULLUR VIOLLAGE.

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AMBUNHI, AGED 64 YEARS, VAZHAKKODAN VEEDU, ERIYA P.O., PULLUR VILLAGE.

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RAJAN, AGED 39 YEARS, MUTTUCHARAL, ERIYA, ERIYA P.O., PULLUR VILLAGE.

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STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM .

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R5 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.L.P.No.106 of 2013

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Dated this the 18^th day of February, 2013

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ORDER

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The complainant in a prosecution for the offence punishable under Sections 143, 147, 148, 447 and 427 read with Section 149 of I.P.C. is the petitioner. As he is aggrieved by the judgment dated 22/11/2012 in C.C.No.141 of 2008 of the court of the Judicial First Class Magistrate Court-I, Hosdurg by which the learned Magistrate acquitted all the accused, he proposed to file an appeal and therefore seeks leave of this Court for the said purpose.

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The case of the petitioner/ the complainant is that he is in possession and enjoyment of 1 acre of property in R.S.No.464/4 of Pullur Village which he purchased as per sale deed dated 20/09/2005 and there was an old laterite boulder stone compound wall on the entire southern boundary of the property. The

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Crl.L.P.No.106/2013

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complainant has filed suit as O.S.No.342/2007 before the Munsiff Court, Hosdurg, when accused Nos.2 to 4 attempted to demolish the said compound wall. A Commission was taken out in the above suit who inspected the property on 06/07/2007. It is the further case of the complainant that after the visit of the Commissioner the accused colluded together and engaged a JCB and trespassed into the property and demolished the entire compound wall on 10/07/2007. According to the complainant the accused were presented and they directed the JCB operator to demolish the compound wall and when he reached to the property he was threatened by accused Nos.2 to 4 showing deadly weapons. According to the complainant he had sustained loss of `45,000/- on that account and on 22/07/2007 the accused trespassed into the property and forcefully constructed a compound wall inside the property of the complainant. Thus, the complainant preferred a complaint, before the court below, which was forwarded under Section 156(3) of Cr.P.C. to the Ambalathara Police

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Station, but the said police, though registered a crime as Crime No.116 of 2007, referred the case as civil nature. Therefore, the present complaint is filed, which has been taken on file as C.C.No.141 of 2008. In pursuance to the process received from the court, the accused entered appearance and then PWs.1 and 2 were examined and Exts.P1 to P3 were marked from the side of the prosecution and thereafter a formal charge was framed against the accused for the offence punishable under Sections 143, 147, 148, 447 and 427 read with Section 149 of I.P.C. When the said charge was read over and explained to the accused, they denied the same, which resulted in the further trial of the case, during which PWs.3 and 4 were also examined from the side of the prosecution. In the meanwhile accused No.3 died. Accused Nos.1, 2, 4 and 5 were questioned under Section 313 of Cr.P.C. Though no defence witnesses were examined, Exts.D1 to D5 were marked. Based upon the rival contentions and the evidence and materials on record the learned Magistrate has formulated four points

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for his consideration and finally found that the complainant has not proved beyond reasonable doubt that he was in the possession of the property within the defined old compound wall which is allegedly demolished by the accused. Accordingly, the accused had been acquitted under Section 248(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged, for which the leave of this Court is sought for.

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I have heard Sri.Kodoth Pushparajan, the learned counsel for the petitioner and I have perused the judgment of the trial court.

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The learned counsel submitted that, particularly fortifying his argument on the two reports of the commissioners, when the Advocate Commissioner in O.S.No.342 of 2007 inspected the property on 06/07/2007, there was a compound wall and when the Commissioner again inspected the property on 13/07/2007, the compound wall, which was identified by the Commissioner, previously, is seen demolished and therefore there were ample evidence to prove the

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trespass and the demolishment of the compound wall, but the learned Magistrate went wrong in holding otherwise and acquitting the accused.

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I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have again gone through the judgment of the trial court specifically referring to the arguments advanced by the learned counsel for the petitioner.

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In the light of the arguments advanced by the learned counsel for the petitioner and in the light of the findings of the court below based upon the evidence and materials referred to in the judgment sought to be impugned, the question to be considered is, whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the judgment in question, or, whether the petitioner has succeeded to show that the judgment sought to be impugned, is perverse or illegal. In this juncture, it is relevant to note that in paragraph 11 of the judgment the trial court, while appreciating the evidence and materials on record,

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it is specifically found that even prior to the date of the suit, the first accused has filed a complaint alleging that the complainant herein, who is examined PW.1, has trespassed into the property, the said complaint was filed on 03/04/2007. The learned Magistrate has found that, it is came out in chief-examination of PW.1 that the complaint of accused No.1 was that PW.1 has trespassed into her property and constructed a compound wall. It is also found that, that petition was closed on the basis of an agreement between PW.1 and accused No.1, that the property shall be measured by a Surveyor and thus Ext.D1 is the copy of the complaint filed by the complainant herein before the Hosdurg Taluk Surveyor on 02/01/2006. That is much before Ext.P3 complaint filed by the first accused. The learned Magistrate has specifically found that in Ext.D1 it has been stated by PW.1 that he has purchased the property measuring 1 acre in R.S.No.464/6 and he has put up a fencing on the boundary of the property to separate the property of the neighbour and one Hari Master, who is not an accused

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herein and 3^rd accused Gopalakrishnan, who is no more, had removed that fencing. So, the learned Magistrate found that Ext.D1 will clearly show that there was only a fencing as on 02/01/2006 to separate the property of PW.1 and the first accused. So, according to the learned Magistrate much importance or relevancy cannot be attached to the commissioner's report. So, the learned Magistrate has concluded that there was a serious civil dispute between PW.1 and first accused with respect to the boundary of their property and the identity of the property is also in dispute. According to the learned Magistrate, the evidence of PW.3 and Ext.D2 and D3 and the examination of the commissioner would show that she had inspected the property with the assistance of Surveyor and she had submitted Exts.D4 report and D5 plan which was again challenged by the complainant before the Munsiff court. Thus the learned Magistrate is of the opinion that Exts.D4 and D5 have not become final. The learned Magistrate has specifically found that, as per Exts.D4 and D5 property identified by the Commissioner

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and belongs to PW.1 is in R.S.No.464/4 and whereas the compound wall was allegedly demolished as per Ext.D4 report lying in R.S.No.459. So the learned Magistrate has concluded that the evidence on record is not conclusive to show that there was a compound wall on the southern boundary having age 25 to 30 years, as alleged and the same was the boundary of the property of PW.1 and thus the entire matter is under dispute between the parties pending in civil litigation. It goes without saying, in a case where allegation against trespass, the complainant has to positively proved that he was in exclusive possession of the property and the accused trespassed into the same. When there is serious civil dispute pending and when the properties are not properly identified, and particularly when the commission report shows that the property inspected by her is entirely different one, it cannot be said that the learned Magistrate is incorrect or illegal in his finding. In paragraph 10 of the judgment, the learned Magistrate has found that, as per the averment in the complaint, the

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compound wall was demolished by JCB and the accused were present in the scene and given direction to the JCB operator to demolish the compound wall and there was no allegation in the complaint that the accused were carrying any weapons and showing that weapon they had threatened the complainant. Thus the learned Magistrate has concluded that absolutely there is no material even as per the complaint to show the formation of unlawful assembly and committing of riot as alleged. In paragraph 12 of the judgment, the learned Magistrate has also found that the evidence of PWs.1 and 2 particularly with respect to their presence at the time of demolishing the compound wall highly improbable.

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Thus, on going through the judgment of the trial court, it can be seen that the learned Magistrate assigned cogent and satisfactory reasons to disbelieve the case of the complainant and that too on the basis of the evidence and materials on record. Therefore, it cannot be said that the above finding of the court below is perverse or illegal. In a recent decision of the Apex Court

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reported in Pudhu Raja & Another Vs. State represented by Inspector of Police [ (2013) 1 SCC (Crl.) 430=2012 (11)SCC 196] , the Hon'ble Apex Court has held that:-

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“14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence, interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”

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Thus, on examination of facts and circumstances involved in the case and the findings of the court below in the light of the dictum laid down by the Apex Court in the above decision, I am of the view that the petitioner has miserably failed to show that the judgment of the trial court is perverse or illegal and he had also failed to show

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any exceptional circumstances to interfere with the order of acquittal. Therefore, even if an appeal is entertained, there is little scope for any interference.

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Resultantly, the leave petition deserves no consideration and accordingly the same is dismissed as devoid of merit.

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V.K.MOHANAN, JUDGE

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skj

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True copy

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P.A. to Judge

Ulahannan John v. Yeshodha.K

Case brief

What is this about?

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Ulahannan John v. Yeshodha.K

Case brief

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