IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/07/2006
CORAM
THE HON'BLE MR.JUSTICE S.ASHOK KUMAR
Criminal Appeal No.412 of 1999
Chinnapullai alias
Bagure Gounder .. Appellant
-Vs-
1.Muniappan
S/o Mara Gounder
2.Sippi alias Karian
S/o Mara Gounder
3.Nagaraj
S/o Silupu alias Kariappan
4.Thottiammal
W/o Siluppu alias Kariappan
5.Chinnappapa
W/o Nagaraj
6.Thotiammal
W/o Maddhappan
7.Mariammal
W/o Pappannan
8.Koonasi alias
Chelliammal
Wife of Usalappan .. Respondents
Criminal Appeal filed under Section 378 of Criminal Procedure Code
against the judgment of the Court of the District Munsif-Cum-Judicial
Magistrate, Palacode made in C.C. No.79 of 1996 dated 8-3-1999, acquitting
the accused for offences under Sectio 47, 447, 427 and 379 I.P.C.
!For appellant : Mr.M.V.Krishnan
^For respondents : Mr.K.Selvarangan
:ORDER
This appeal has been filed against the judgment of the acquittal of
the accused who had been tried for alleged offences under Sections 147, 447,
427 and 379 I.P.C.
2. The brief facts of the case is that the complainant, P.W.1
filed a private complaint against the accused alleging that on 26.02.1996, the
accused cut and carried away the sugarcane crops raised by him. On behalf of
the complainant, P.W.1 an ere examined and Ex.P1 to Ex.P.10 were marked. On
behalf of the accused, D.W.1 and D.W.2 were examined and Ex.D1 and Ex.D2 were
marked. When the accused were questioned under Section 379 I.P.C. the
accused claimed that they were in possession of the pr operty and that they
alone planted the sugarcane crops. On consideration of the oral and
documentary evidence, the learned District Munsif Cum Judicial Magistrate,
Palacode came to the conclusion that the offences alleged against the accused
are not pro ved and therefore acquitted them. Aggrieved over the said order,
this appeal has been filed.
3. Mr.M.V.Krishnan, learned counsel appearing for the petitioner
would contend that the complainant obtained an order of injunction on
22.12.1995 which is marked as Ex.P5. While the injunction order was in force,
the accused have trespassed in nd of the complainant and carried away the
standing crops in the land.
4. Mr.K.Selvarangan, learned counsel appearing for the accused
would contend that the order of injunction was exparte order but the actual
possession of the land was with the accused and it was the accused who raised
the crops as admitted by P. complainant and that, in the affidavit filed in
I.A. No.825 of 1995 in O.S. No.849 of 1995, the complainant has claimed that
he ploughed the land on 19.11.1995 and if that is true, the sugarcane crops
could not have grown to the extent of harvesting the same to be sent to the
sugar mill within a period of three months, i.e. On 26.02.1996.
5. There were cases between the parties, the complainant on the
one side and the first accused on the other with regard to the title of the
property. It seems that the complainant purchased the property from one
Pachiammal, wife of Late Thimm whereas the accused A1 purchased the property
from one Chelliammal, who is the eighth accused in this case and sister of
Thimme Gowder. Both parties have filed suits and counter-claims in the
District Munsif Court at Palacode. According to the complai nant, on
22.11.1995, the possession was handed over to the complainant in R.E.P. 38 of
1995 as seen from Ex.P4. But even thereafter on 22.12.1995, an order of
injunction was also obtained by the complainant against the accused. In
Ex.P2, the affidavit filed in I.A. No.825 of 1995 in O.S. No.849 of 1995,
the complainant has stated that he ploughed the land on 19.11.1995 and at that
time, the accused party came and prevented him from ploughing. If really this
averment mentioned in the affidavit is true , the averment that on 26.02.1996,
i.e., within three months, the sugarcane was grown sufficient enough to be
sent to sugarcane mill is false. According to the complainant, the
surgarcanes were seven months old when it was cut on 26.02.1996. If the lan d
was ploughed on 19.11.1995, the sugarcanes could not have been seven months
old on 26.02.1996. Therefore on this aspect, the evidence of the complainant
and the averments made in the complaint could not be true. Further in his
evidence, P.W.1 had ca tegorically admitted that he has not raised the
sugarcane crops. P.W.2 during cross examination, has admitted that it was A1
and A2 who have raised sugarcane crops. When A1 was examined by D.W.1, he
categorically stated that he raised the crops. Thus i n a case where there is
a bonafide claim and counter-claim for right or title and possession, the
alleged offences under Sections 448 or 447 I.P.C. cannot be brought upon, to
the accused.
6. In 1987 MLJ (Criminal) Page 324, it is held as follows:
“8. Taking the offence under S.448, I.P.C., it is seen that in the complaint
P.W.1 has stated that on 16.7.1982, at about 4.30 p.m. P.W.2 took him to the
scene house and put him in possession of the said house and that at that time
the respondents were o ccupying the house. It is also stated that, shortly
after the appellant was put in possession of the house, P.W.2 the previous
owner, removed all his belongings and vacated the premises. The offence under
S.448, I.P.C. is an offence not against ownersh ip or title but is an offence
against possession and occupation. Considerations like exclusive title to the
property, claims, counter-claim, are alien to S.448, I.P.C. In the instant
case, it is the evidence of P.W.1 that even P.W.2 was not occupying t he scene
house at the time of the occurrence. It follows, therefore, that it is the
respondents who had been in actual possession of the scene house at the time
of the occurrence. No doubt in the complaint, an averment is made that the
premises owner P .W.2 put P.W.1 in possession of the said house. This could
not be actual physical possession since the house was really in the possession
of the respondents and P.W.2 had no possession which he could give to P.W.1.
Even if the statement that P.W.1 hande d over possession to P.W.1 could be
taken as true, it could only mean symbolic or constructive possession which
can have no significance in an offence under S.448, I.P.C. The appellant has
not established that either P.W.2 or P.W.1 was in actual possess ion of the
scene house so as to attract S.448, I.P.C.”
In this case, though immediate complaint was said to have been given to the
Police by the complainant, the said complaint has not been brought before the
Court. Failure to summon the complaint is also fatal to the private complaint
filed by the complain ant. In a case in which the Trial Court acquitted the
accused, normally the High Court does not interfere, unless there are strong
valid reasons.
7. In 2002-C-L.W. (Crl.) 513, the Supreme Court held as follows:
“15. That apart, there should have been strong and good reasons for the High
Court for converting an order of acquittal into one of conviction. The legal
position on that score has been stated by this Court time and again. Suffice
it to reproduce what is stated by the court in the decision of this Court in
Dhanna Vs. State of M.P. {1996 (10) SCC 79}.
“Though the Code does not make any distinction between an appeal from
acquittal and an appeal from conviction so far as powers of the appellate
court are concerned, certain unwritten rules of adjudication have consistently
been followed by Judges while d ealing with appeals against acquittal. No
doubt, the High Court has full power to review the evidence and to arrive at
its own independent conclusion whether the appeal is against conviction or
acquittal. But while dealing with an appeal against acqui ttal the
appellate court has to bear in mind: first, that there is a general
presumption in favour of the innocence of the person accused in criminal cases
and that presumption is only strengthened by the acquittal. The second is,
every accused is entit led to the benefit of reasonable doubt regarding his
guilt and when the trial court acquitted him, he would retain that benefit in
the appellate court also. Thus, the appellate court in appeals against
acquittals has to proceed more cautiously and only i f there is absolute
assurance of the guilt of the accused, upon the evidence on record, that the
order of acquittal is liable to be interfered with or disturbed.””
In this case also, sufficient reasons have been given as to why the accused
are acquitted.
8. In view of the foregoing reasons, I do not find any reason to
interfere with the impugned order made by the District Munsif-Cum-Judicial
Magistrate, Palacode and hence the Criminal Appeal is dismissed with no order
as to costs.
km
To
District Munsif
Cum Judicial Magistrate,
Palacode.