KESAVAN NAMBOOTHIRI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) This is an appeal preferred under Sec. 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 Sec. 190(1)(a) of the Cr.P.C, alleging offence punishable under Ss. 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 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 Sec. 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 Sec. 255(1) of the Cr.P.C. Aggrieved by the said finding, the complainant has moved this Court in appeal, after getting leave under Sec. 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.