SADASIVAN PILLAI Vs. STATE

JUDGEMENT

(1.) THESE appeals are against the order of acquittal passed by the Additional Second Class Magistrate of Trivandrum in C. C. 19/58 and 21/58 on his file. Both the cases relate to the same incident. C. C. 19/38 arose on a private complaint filed by the appellant against the two accused for offences under S. 448, 452 and 341 of the Indian Penal Code. The prosecution case is as follows:

(2.) THE property comprised in Survey No. 1480 of the palkulangara Pakuthy and the building therein bearing T. C. No. 23/520 belongs to the complainant. THE house was taken on rent by the second accused. THE first accused is a sub-tenant under the second accused. THE accused were both residing in the house. While so the rent fell into arrears and a case B. R. C. 217/54 was filed for eviction of the accused from the building on the ground of arrears of rent. Eviction was allowed and the building was duly delivered to the complainant on 7-3-1957. On 23-3-1957 at 10 A. M. while the complainant was preparing to thatch the house the first accused interfered and prevented the complainant from thatching the house and pushed him to eject him out of the house. THE complainant refused to go out. It was further stated that the complainant was wrongfully restrained in the eastern room of the house. On the same set of facts the police charged a case against the first accused alone for an offence punishable under S. 448 of the Indian Penal Code and that is the subject matter of C. C. 21/58. THE cases were tried simultaneously and the accused were acquitted.

(3.) THE evidence in the case may next be considered. Eight witnesses have been examined for the prosecution and Ext. P1 to P6 have been produced. Pw. 1 is the complainant. He swears that he gave the building on rent to the second accused in 1124 and the second accused allowed the rent to fall into arrears and sub-let the building to the first accused without his consent and they caused damage to the building. THEreupon he filed B. R. C, 217/54 for eviction and got the order in his favour. He applied for the execution of the order and the building was duly delivered to him on 7-3-1957. As the first accused was not present at the time of delivery, the moveables in the building which belonged to him were removed to the court as per the orders of court. From the date of delivery the complainant was in possession of the building on 25-3-1957 he went with the coolies to thatch the building when some portion of the old thatching was removed the first accused ran up and obstructed the thatching and got into the building and attempted to push him out. THEn the second accused brought some vessels from the adjoining house where he was staying and deposited them in the building. He left the place after directing the first accused to see that the complainant was not allowed to go out of the house. THE second accused fetched some communists and on seeing them the coolies got frightened and ran away and he also got out of the building. THE accused and the communists detained him at the foot of a tree and did not allow him to move. THEn his son who went there is search of him informed the police who came and released him. THEreupon he went to the police station and gave a statement on the strength of which the police charged a case against the first accused alone which is the subject matter of C. C. 21/58 He proved Ext. P1 the delivery list, Ext. P2 the notice which was personally accepted by the first accused, Ext. P3 the report filed by the Amin to have delivery of the building effected by breaking open the door as it was locked, Ext. P4 the report filed by the Amin for having effected the delivery by breaking open the lock and Ext. P4 the list prepared by the Amin for the articles belonging to the first accused which were removed from the building to the court. Pw. 1 is a retired water works superintendent and apart from some contradictions regarding the part played by the second accused, nothing has been brought out in the cross-examination of Pw. 1 to discredit his evidence Absolutely no cross-examination is directed against the evidence regarding the actual delivery of possession of the house to him, his attempt to thatch the house, and the resistance offered by the first accused. Pw. 2 is a neighbour who was present at the time of the delivery. He swears that the first accused was staying in that building and that the Amin had opened the lock and removed the articles in the house. He is an attestor to Ex. P1, the delivery list prepared by the Amin. Pw. 3 is the Amin who effected the delivery of the building and put the plaintiff in possession of it. He proves Ex. P1 to P5 and swears how he broke open the door with the permission of the court and removed the articles in the house to the court. THE complainant had executed a kaichit in his favour for being put in possession of the building and that fact his been recorded by him, in Ext. P1. THE solitary question put to this witness in cross-examination is whether the building that was delivered over was not the building in "mupparathundam Nilam Nikathya Puraidom. " He gave an answer in the affirmative and Ex. P1 shows that it is the same building that was delivered over. P. W. 4 is the labourer who went with the complainant to thatch the building. He swears that when he began to thatch the building the first accused obstructed and asked him to get out, and he states that there were several persons in the company of the first accused, and it was because he was frightened that they would beat him that he had to leave the place without completing the work. P. W. 5 stated that he went to the scene of incident on hearing that some trouble was going on there and he saw the complainant and accused and some other persons there and understood from their conversation that they were not prepared to settle matters amicably. P. W. 6 gives evidence that at about 10 A. M. the complainant had come to the place with coolies to thatch the building and when the coolies had pulled down a portion of the old thatching the first accused obstructed them and after some time some communists also gathered there and prevented the complainant from leaving the compound. P. W. 7 is another witness to the incident who gives evidence in the same terms as p. W. 6. He stated that the building was subsequently thatched by the communists who gathered there. He gives evidence that the complainant was in possession of the building at the time of the incident though the first accused was in occupation earlier and also subsequent to the incident. When the first accused was questioned about the prosecution evidence, he only stated that he was purposely evicted from the building and that he wanted some place to live. THE second accused stated that he was not at the place. D. W. 1 and 2 were examined to prove the plea of alibi set up by the second accused, and T ). W. 3 and 4 are examined to prove that the first accused was in occupation of the building for the past 7 or 8 years. D. W. 3 swears that on hearing that the complainant had pulled down the roof of the building he went to the place and informed the police who came and had the building thatched. He is a political worker. When cross-examined he was not in a position to say whether the second accused was ever in occupation of the building as a tenant and also when the first accused began to occupy the building. D. W. 4 who gives evidence in similar terms is a labourer who admits that he is a friend of the first accused. He was also not in a position to say whether the second accused was ever in possession of the building. THE evidence in the case has established clearly that the complainant got delivery of the building and was in possession of it, and that his attempt to thatch the building was obstructed by the first accused. THE evidence of the complainant and his witnesses on this point was not successfully challenged in cross-examination. THE defence evidence also is not helpful in finding that the delivery was not actually effected or that the first accused continued to be in occupation of the building in spite of the delivery. No attempt was made by the learned counsel for the respondent to challenge the acceptability the evidence of the prosecution witnesses, and the only contention put forward by him was that the first accused could not be fixed with the necessary intention for the offence of criminal trespass as the delivery was not effected to his knowledge. This argument is based on the fact that the first accused was not present at the time the house was actually delivered. In view of the fact that the building itself was delivered after breaking open the lock and removing the vessels and other moveables belonging to the first accused to the court, it is clear that the first accused had knowledge of the delivery. THEre was an interval of 17 days between the actual delivery of the building and the removal of the articles, and the incident, and no attempt was made by the first accused in the meanwhile to get back the articles or to get possession of the building by lawful means. THE stand taken by the accused that he is an ASipsnimc3 and so he would not vacate the building in spite of the court delivery is high-handed. THE concession allowed by the learned Magistrate that the accused might have been led on by a false impression that he had some right to linger on the property is queer and improper. THE attempt of the accused with the help of his political friends to take the law into his hands, is a negation of all rights to property. It is well settled law that where a court effects delivery the court really puts such a person in physical possession of the property delivered-Vide 1953 KLT 31 (Madhava Kurup Velayudha Kurup v. State) THE delivery evidenced by Ex-Pi and supported by the evidence of P. W. 3 the Amin who effected the delivery to P. W. 1 cannot be stigmatised as a sham transaction. Aggrieved persons will have to seek re-delivery or to bring a fresh suit and not bring together their comrades to disturb the peaceful possession of the property delivered over. It is a well known proposition that the Criminal Court is bound to respect such a record and give due importance to the same. Though the order of acquittal is characterised as an instance of "obstinate blunder", I do not go so far; but I am constrained to remark that the disposal of the case by the learned Magistrate is a glaring instance of denial of justice. I find that the offence of criminal trespass is proved against the first accused. THE offence under S. 341 is not made out by clear and cogent evidence. THE second accused's complicity is also not established by acceptable evidence and the complainant did not press for the conviction of the second accused.