PADMAVATHY AMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE de facto complainant in C.C. No. 37/1997 on the file of the Judicial Magistrate of the First Class - II, Thiruvananthapuram is the revision petitioner. On the basis of a first information statement lodged by her, the Station House Officer, Peroorkada Police Station registered a case as Crime No.167/1995 against respondents 2 and 3 for offence under Section 379 read with 34 IPC. The case of the revision petitioner is that she owned 15 cents of property. Out of that 5 cents were sold to respondents 2 and 3 on 27/4/1995. There was a mahagony tree in that portion. Before sale, it was cut down and removed to the remaining 10 cents of property. Respondents 2 and 3 committed theft of the trees sometimes before 5/7/1995.

(2.) ON completion of the investigation, the allegation of theft was found true. Therefore, a final report accusing offence under Section 379 read with 34 IPC was filed against respondents 2 and 3. They pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 7 were examined. Exhibits P1 to P6 were marked. Thondy articles were marked as MO1 series. MO1 series are in the interim custody of the petitioners. By judgment dated 26/12/2001, the trial court acquitted respondents 2 and 3. The revision petitioner was directed to surrender MO1 series to respondents 2 and 3. Aggrieved by the order of disposal of MO1 series, she preferred Crl. A. No. 23/2002 before the Sessions Judge, Thiruvananthapuram. The learned Sessions Judge by judgment dated 19/1/2002, while dismissing the appeal, directed the revision petitioner to move the civil court and to establish her right. Assailing the legality, correctness and propriety of the above judgment, this revision petition was preferred. I have heard Adv. Smt. N. Deepa, the learned counsel appearing for the revision petitioner as well as the learned Government Pleader. Respondents 2 and 3 didn't turn up. The very prosecution case is that the trees were cut down by the revision petitioner before the sale of the property to respondents 2 and 3. In support of her claim, she had given evidence. Her evidence on that aspect remains uncontroverted. Of course, respondents 2 and 3 had challenged the same in cross -examination. But respondents 2 and 3 had not cared to adduce any evidence to establish any right over MO1 series. Neither had they produced the copy of the sale deed to establish that at the time when they purchased the property from the revision petitioner, the tree was standing in the property sold to them. Result is that regarding the ownership of the tree there is only the once side evidence of the revision petitioner. In the above circumstance, with the available evidence on record, I find that the trial court should have ordered disposal of MO1 series in favour of the revision petitioner. It is without establishing any right by respondents 2 and 3, MO 1 series were ordered to be handed over to respondents 2 and 3. Therefore the order of the courts below is not legally sustainable and requires interference in revision because there is nothing on record to show that the tree was standing in the property sold by the revision petitioner. The result of investigation is in favour of the petitioner. Respondents 2 and 3 had not cared to adduce any contra evidence. Neither is there any material to show that investigation was any way faulty or that the finding of the investigating officer is any way wrong. The order of disposal of MO1 series in favour of respondents 2 and 3 are without the support of evidence.