MARIMUTHU @ BOYAN AND OTHERS Vs. BAGYAMMAL

JUDGEMENT

(1.) THIS revision is directed by the accused in C.C. No. 456 of 1984 on the file of the Judicial First Class Magistrate, Erode challenging their conviction under S.426 I.P.C. and the sentence to pay a fine of Rs. 30 in default to suffer simple imprisonment for one week.

(2.) THE brief facts which are necessary for the disposal of this revision are as follows: The respondent herein filed a private complaint under Ss.147, 148, 427, 447 and 506(II) I.P.C. alleging that these petitioner accused trespassed into her premises on 14.6.1983 at 8 a.m. that they were armed with stick, crowbar, spade and aruval and that they demolished the house belonging to her (P.W.1) and caused damage. In support of the same, besides examining herself as P.W.1 she examined two other witnesses P.Ws.2 and 3 and marked Ex.P.1 and P.2. The accused denied the offence as false. No witness was examined on their side. The trial magistrate acquitted the accused of the offence under Ss.147, 148, 427 and 447 I.P.C. However he convicted the accused under S.426 I.P.C. and sentenced each of them to pay a fine of Rs. 30/ - Aggrieved by the same this revision is filed.

(3.) THE learned counsel for the respondent drew the attention of this court to the copy of the telegram Ex.P.1 and the receipt for the same Ex.P.2. The telegram is said to have been given on 25.6.1983 about 11 days later which also does not contain any detail. It is only stated that the house of the complainant was broken by Marimuthu (first accused) and his sons and she prayed for safety and action immediately. It is not stated in the said telegram that a complaint has been given to police on the very same day of the occurrence and no action has been taken. After hearing the arguments of the learned counsel appearing on either side and after going through the impugned order as well as the materials on record I find that the learned magistrate having acquitted the accused in respect of the offences under Ss.147, 148, 427 and 447 I.P.C. is not justified in convicting the accused under S.426 I.P.C. especially in view of the finding that the complainant has not established the ownership and possession of the disputed item. Further the failure to summon the complaint given to the police and mark the same on the side of the respondent complainant is certainly fatal to the case of the prosecution especially in a case of this nature. There is absolutely no explanation as to why the said complaint was not marked. If the complaint is filed it would advance the case of the respondent. There was no discussion at all in the whole of the judgment. The trial Magistrate has not A1 all considered the contentions on behalf of the petitioners and the answers elicited in cross examination of the witnesses in arriving at the conclusion that the petitioners are guilty under S.426 I.P.C. Thus on a careful consideration of the entire materials on record I am of the view that the conviction of the petitioners under S.426 I.P.C. is not sustainable and the wrong approach of the court below has led to the conviction of the petitioners.