RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED Nos. 1 to 3 in C.C. No. 412/2011 on the file of the Judicial First Class Magistrate Court -II, Thamarassery, are the revision petitioners herein. The revision petitioners were charge sheeted by the Sub Inspector of Police, Mukkom, in Crime No. 212/2011 of Mukkom police station, alleging commission of the offence under Section 447 and 427 read with Section 34 of the Indian Penal code.

(2.) THE case of the prosecution in nut shell was that, on 30.05.2011 at about 6.30 p.m., the revision petitioners criminally trespassed into the property in possession of the de facto -complainant and destroyed the crops cultivated in the property, causing loss of Rs.50,000/ - to her and thereby they have committed the offence punishable under Section 447 and 427 read with Section 34 of the Indian Penal Code. After investigation, final report was filed and it was taken on file as C.C.412/2011 on the file of the Judicial First Class Magistrate Court -II, Thamarassery. When the revision petitioners appeared before the court below, the particulars of offence were read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 7 were examined and Exts.P1 to P4 were marked on their side. After closure of the prosecution evidence, the revision petitioners were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that, they have not committed any offence and they have been falsely implicated in the case. Further, the de facto -complainant and her husband were against giving land for formation of the road and PW1 had given some land and a road was formed, but encroaching into the road, they constructed fence which was complained by DW1, the wife of the 2nd accused by filing Ext.D1 complaint and on account of that enmity, a false case has been foisted against them. In order to prove their case, wife of the 2nd revision petitioner was examined as DW1 and Ext.D1 was marked on their side. After considering the evidence on record, the court below found the revision petitioners guilty under Section 447 and 427 of the Indian Penal Code and convicted them there under and sentenced them to pay a fine of Rs.500/ - each under Section 447 read with Section 34 of the Indian Penal Code and in default to undergo simple imprisonment for one week and further sentence to pay a fine of Rs.3,500/ - each, in default to undergo simple imprisonment for one month each under Section 427 read with Section 34 of the Indian Penal Code and further directed to pay Rs.10,000/ - if the fine is realised, as compensation to PW2 under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioners filed Crl.Appeal No. 172/2013 before the Sessions Court, Kozhikode, which was made over to 4th Additional Sessions Court, Kozhikode, for disposal and the learned Additional Sessions Judge by the impugned judgement, dismissed the appeal, confirming the order of conviction and sentence and passed by the court below. Dissatisfied with the same, the present revision has been filed by the revision petitioners/accused before the court below.

(3.) THE counsel for the revision petitioners submitted that, there is a delay of eight days in filing the complaint. PWs 1 and 2 were not consistent in respect of the delay caused in making the complaint. According to PW1, the complaint was filed within two days, whereas according to PW2, it was made after five days of the incident. Further they have admitted that, two or three days prior to the alleged incident, there was some other incident occurred and some people had demolished the fence constructed by the de facto -complainant along with their property, encroaching into the path way, formed by the public and in fact except such incident, no such incident happened on 30.05.2011 involving the revision petitioners as claimed by the prosecution. Further, though they were independent witnesses, none were examined and PW4 who was cited as witness is not a person residing there. So his presence at the place is doubtful. So under the circumstances, courts below have not properly appreciated the evidence and in the absence of probable and plausible explanation for the delay, courts below should have viewed the same as suspicious and that benefit should have been given to the revision petitioners, which has not been done in this case. So according to him, the courts below were erred in appreciating the evidence and they are entitled to get the benefit of doubt and prayed for acquittal.