LONAPPAN PALU Vs. JANAKI AMMA

JUDGEMENT

(1.) The appeal filed by the complainant is against the order of acquittal passed by the Judicial Magistrate of the Second Class-I, Trichur in C. C. 1202/75 on the file of that Court. The complainant is the owner of a property described as Kayyalaparamba. He has planted 'Seemakonna' trees along the boundary of the property. The first accused is the owner of the paddy field which forms the southern boundary of the complainant's property. On 18th June 1975 at about 7 a.m. the first accused along with accused Numbers 2 and 3 went to the paddy field. They are alleged to have trespassed into the paramba of the complainant. At the instance of the first accused, accused Numbers 2 and 3 cut away the southern branches of the trees standing on the southern boundary. Even though the complainant protested, the accused did not heed his words. After cutting, the first accused is alleged to have thrown away the branches which fell into her paddy field to the adjoining paramba of the complainant. The complainant's case is that by the above act, the accused committed offences punishable under S.447 and 427 I.P.C. The Trial Magistrate held that there was sufficient evidence in the case to show that the accused entered the compound of P.W. 1, the complainant and that accused 2 and 3 cut the southern branches of 30 'Seemakonna' trees standing on the southern boundary of the compound as directed by the first accused. The court, however, held that the overhanging of the branches amounted to nuisance and the accused had the right to abate the nuisance by cutting away the branches which overhung. It was, therefore, held that no offence was committed by the accused. The appeal is preferred challenging the order acquitting the accused.

(2.) The contention put forward on behalf of the appellant is that the circumstances of the case do not warrant the finding arrived at by the Trial Court regarding the guilt of the accused. It is pointed out that the accused had no case when examined under S.313 Cr. P.C., that what they did was by way of abatement of nuisance. On the other hand, the stand taken by the accused was one of denial of the occurrence itself. It was, therefore, contended that once it is made out that the accused committed the act, they are liable to be convicted for the offences alleged.

(3.) The fact that the property wherein the trees stood adjoins the paddy field of the first accused is not disputed. The complainant's case itself is that the trees which were cut stood along the boundary of the complainant's property and that of the first accused. The case of the complainant is also that the branches that were cut, excepting in the case of two trees, were those overhanging the paddy field of the first accused. The complainant, however, has a case that there were two trees of which not only the branches but also the stems were cut by the accused. P.W. 1, the complainant has spoken to this case. The cutting of the branches and also of the stem of two trees is made out by the testimony of the complainant's witness. Ext. P1, the scene mahazar prepared by the Sub Inspector of Police also mentions the cutting of the branches of trees and that there were two trees which were cut leaving only a trunk 60 cm. in height. There is thus sufficient evidence to support the case of cutting put forward by the complainant.