Kerala High Court
Kesavan Namboothiri vs Narayana Pillai on 31 March, 2021
Equivalent citations: AIRONLINE 2021 KER 357
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943
CRL.A.No.557 OF 2011
AGAINST THE JUDGMENT DATED 14.12.2010 IN CC 318/2009 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT - I,KOTTARAKKARA
APPELLANT/COMPLAINANT:
KESAVAN NAMBOOTHIRI
S/O. GOVINDAN NAMBOOTHIRI,
PUTHIYA MADOM,
THEVANNOOR MURI,
VAIKKOM VILLAGE.
BY ADVS.
SRI.V.SURESH
SRI.G.SUDHEER
RESPONDENTS/ACCUSED:
1 NARAYANA PILLAI,
SON OF GOPALA PILLAI,
DEEPA VILASOM,THEVANNOOR MURI,
VAIKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT.
2 NARAYANA PILLAI,
SON OF BHASKARA PILLAI
KESAVA VILASOM, THEVANNOOR MURI,
VAIKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT.
3 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
R1 & R2 BY ADV. SRI.SYAM J SAM
R3 BY SRI.M.S.BREEZ, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2021,
THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING:
Crl.Appeal No. 557 of 2011 2
JUDGMENT
This is an appeal preferred under Section 378(4) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the correctness of the judgment of the Judicial First Class Magistrate - I, Kottarakkara in C.C. No. 318/2009. That case had originated on a complaint preferred under Section 190(1)(a) of the Cr.P.C., alleging offence punishable under Sections 341, 447, 294(b) and 34 of the Indian Penal Code. The appellant/complainant alleged that he is in possession and enjoyment of 35.20 Ares of land in survey No.109/1 of Valakom Village and also 10.20 Ares of land in survey No.109/15. The first accused has land on the immediate east of the land in survey No.109/1, whereas the second accused is in occupation of property east of land in survey No.109/15. The complaint was preferred since the accused had trespassed upon the property of the complainant; when his son had tried to put up wire fencing on the boundary after leaving portion of a pathway of the accused connecting the panchayat road on the west, his son was wrongfully restrained and prevented; the accused had also uttered abuses against his son and wife; they were acting in furtherance of their common intention. It is the further complaint that though the matter was complained to the police, some Crl.Appeal No. 557 of 2011 3 policemen merely visited the place, but no action was taken which necessitated him to move the court with the complaint. After recording the sworn statement of the complainant and his son, the case was taken on file and the accused were summoned. When the particulars of offence were read over and explained, they pleaded not guilty.
2. Four witnesses were examined on the side of the prosecution. Exts. P1 and P2 were also marked. After recording the prosecution evidence, when examined under Section 313(1)(b) of the Cr.P.C., the accused denied the incriminating materials; there was no evidence in defence. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate held that the prosecution could not bring home the guilt of the accused and resultantly, the accused were acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the said finding, the complainant has moved this Court in appeal, after getting leave under Section 378(4) of the Cr.P.C.
3. I heard the learned counsel for the appellant in detail. Even though various adjournments were granted for hearing the counsel for respondents 1 and 2, there was no representation for them and thus they were taken as heard.
Crl.Appeal No. 557 of 2011 4
4. The evidence of the appellant confines to oral testimony of PWs 1 to 4 and Exts. P1 and P2 documents. PW1 is the appellant himself, who obviously is not an eye witness to the occurrence. He is a lawyer in Thiruvananthapuram Bar. At the time of the alleged incident that had happened on 26.07.2008, he was not at the place of occurrence. He has only hearsay knowledge about the incident. It requires to be stated here that the complaint lacks particulars of the offence. Even the date and time of the occurrence is not shown in the complaint. But when examined under Section 200 of the Cr.P.C., he said that it had happened on 26.07.2008. Even then, the time of occurrence is not stated. Whatever it be, he has stated that the respondents 1 and 2 possess land on the immediate east of his holdings comprised in survey Nos. 109/1 and 109/15 of Valakom village in Kottarakkara taluk. When examined as PW1, he said that the first respondent trespassed upon the northern side of his property and beaten a way through the property till the western extremity. Ext.P1 Re-survey plan was produced to prove that there is no such way existing between the properties of the appellant and the respondents. He further stated that the existing feed-site (kayyalakuzhi) which had one metre width was widened into a way of two metres. Consequently, Crl.Appeal No. 557 of 2011 5 he suffered loss. In cross examination, he confided that he is not an eye witness to the occurrence, that the respondents 1 and 2 use a pathway through his property, at a width of one metre; such a way is in existence from 1974 onwards, when he had purchased the property. He denied the suggestion that the complaint was preferred when he tried to obstruct the pathway being used by the respondents, which was taken to the police and to the panchayath; he does not know that any such complaint was preferred by the respondents. Anyhow, he has not moved the civil court on this cause of action.
5. PW2 is the son of the appellant. According to him, the respondents 1 and 2 had obstructed and abused him when he tried to put up fencing in their property; the way in existence is about three feet wide, he does not know whether anyone else had witnessed the occurrence. According to him, they had tried to put up wire fencing after leaving way at a width of one metre. According to him, the respondents 1 and 2 have beaten a way at a width of two metres.
6. PW3 is a neighbour of the appellant and the respondents. He testified that the respondents 1 and 2 reside on the immediate east of the holding of the appellant, that the panchayat road lies on the west of the property of the appellant and they have a way through the Crl.Appeal No. 557 of 2011 6 property of the appellants, which is capable to take an autorickshaw, may have a width of 1.45 metres. When he was asked as to what was the width of the way earlier, he said that it had the same width, but it was not trafficable earlier, that it is a pathway. He does not know whether there was any dispute while creating a new way. He has only hearsay knowledge about the arrival of the member of the Panchayat. These matters were spoken in the chief examination itself. In cross examination, he deposed that the way has the same width as before and the only thing is that now it has made usable. PW4 is the Village Officer, Valakam Panchayat, who proved the Ext.P1 sketch.
7. Above being the evidence of the appellant, the learned Magistrate found that it is not sufficient to proceed against the respondents 1 and 2 for entering a conviction. After re-visiting the evidence, I have no doubt that the trial court cannot be faulted for finding the respondents 1 and 2 not guilty and acquitting them.
8. Firstly, there is only the oral testimony of PW2, the son of the appellant to support the allegation of the alleged trespass and wrongful restraint. The testimony of PW2 does not contain ingredients of wrongful restraint, so as to say that by the act of the respondents 1 and 2, his movement was restricted in any particular manner. Crl.Appeal No. 557 of 2011 7 Regarding the allegation of trespass also evidence is slender and rather thin. Even though both PWs 1 and 2 wanted to make the court believe that the respondents 1 and 2 had trespassed upon the holding of the appellant and cut open a new way, that has not been proved beyond reasonable doubt. The learned counsel for the appellant urged that there is no such way in existence through the holding of the appellant, which had facilitated free movement of the respondents 1 and 2 from their holdings to the Panchayath road on the west. But it is the bounden duty of the appellant to prove that, that day they had encroached upon the property of the appellant and beaten a new way. The appellant could not make out the present width of the way in existence. While it was alleged that a one metre wide pathway was enlarged by encroaching upon the property of the appellant and now, it has been made two metres, that allegation remains on the papers. On that there is only the interested version of PWs 1 and 2. PW3, the independent witness is the neighbour of both the parties. His testimony suggests that the width of the way is being maintained as before. According to him, it had width sufficient enough to take an autorickshaw, say 1.45 metres, which is in existence as before.
9. In order to attract an offence under Section 447 of the Crl.Appeal No. 557 of 2011 8 Indian Penal Code, it is necessary to say that the respondents 1 and 2 had entered upon the property of the appellant with the intention of committing offence or to intimidate, insult or annoy the appellant or to interfere with his right of possession and enjoying the property. That has not been established beyond doubt.
10. It is also important to note that in spite of these allegations, the appellant has not moved the civil court for getting appropriate relief. He being a lawyer by profession, not moving the civil court, cannot be appreciated in good taste.
On overall consideration of the facts and circumstances, overwhelming circumstances are not made out to reverse the finding of acquittal. The appeal lacks merit and is dismissed.
Sd/-
K.HARIPAL JUDGE DCS/30.03.2021