KUNJU MOIDEEN METHARARU Vs. KANDAN

JUDGEMENT

(1.) This appeal is by leave under S.417 (3) of the Criminal Procedure Code, against the judgment of acquittal dated 9-12-1957 and passed by the Sub Magistrate of Kottayam in C.C. No. 786 of 1953 on his file.

(2.) The matter arose on a private complaint, filed by the appellant against 6 accused viz., the 6 respondents herein. The complaint was for offences under S.447, 506 (1), 352 and 114 of the Indian Penal Code, in that the accused jointly trespassed into the complainants compound known as Pungasserichira and constructed a hut there, in spite of his protests and by intimidating him by threat of physical injury. The first four accused constituted a family, being a father, mother and two sons. The 5th accused was a cousin of the 1st accused and the 6th accused was their well wisher. The 1st accused was originally a tenant of the complainant in respect of this property and had been evicted thereform on 8-12-1952 under decree in O.S. 383 of 1950 of the Kottayam Munsiffs Court, vide Ext. B delivery kychit. This incident, according to the appellant, took place in the morning between 8 and 12 A.M. of 9-7-1953. He hurried to the spot at 8 A.M. after hearing of the gathering of the accused in readiness to put up the shed and protested but they moved towards him brandishing deadly weapons and threatening to kill him. Fearing physical injury he withdrew. The accused then went on constructing and finished by 12 noon. The complaint was filed on that very day. Ext. A the scene mahazar prepared about three weeks later, showed that the 1st accused was seen living with his family in the hut on the spot.

(3.) The defence of the 1st accused was that though delivery did take place under Ext. B, he had not been physically dispossessed altogether. And when the amin had pulled off his original shed and left, he had started constructing another and so had continued in occupation right along. He denied the trespass as alleged and also any intimidation either by himself or any member of his family or others. Accused 2 and 4 set up the same plea while accused 5 and 6 pleaded alibi. The Magistrate found that there was no prima facie case even made out in respect of the offences under S.506 and 352 I.P. C. Accordingly he framed charges against the accused for the offence under S.447 and 109, I. P. C. only.