High Court Kerala High Court

John Britto vs Asantha And Another on 25 June, 2008

Kerala High Court
John Britto vs Asantha And Another on 25 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.L.P..No. 576 of 2008()



1. JOHN BRITTO
                      ...  Petitioner

                        Vs

1. ASANTHA AND ANOTHER
                       ...       Respondent

                For Petitioner  :SRI.P.B.SAHASRANAMAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :25/06/2008

 O R D E R
                            R.BASANT, J
                         ----------------------
                     Crl.L.P.No.576 of 2008
                   ----------------------------------------
              Dated this the 25th day of June 2008


                              O R D E R

This application is for grant of leave under Section 378(4)

cr.P.C to challenge a judgment of acquittal in a prosecution for

offences punishable inter alia under Sections 447 and 427 I.P.C.

2. The crux of the allegations in the complaint is that on

05/10/2001 at 5 a.m accused Nos.1 and 2, spouses with the

intention to trespass into the property of the complainant

trespassed into the property and indulged in acts of mischief.

The complainant is the brother of the second accused who is the

wife of the first accused. In support of the allegations, the

complainant examined himself as PW1 and examined another

witness as PW2. Exts.P1 to P6 were marked.

3. Exts.P1 to P6 were marked to show that the

complainant is the owner in possession of the property in

question. The property originally belong to the complainant and

his brother and he is alleged to have purchased the brother’s

right in the property as per Ext.P6 during the pendency of the

proceedings. Admittedly, there were civil litigations between the

Crl.L.P.No.576/2008 2

parties about the right, title, interest and possession of the

property in question. Exts.P1 to P5 are documents on the

disputed question of possession/right over the property.

4. PW1 is not a witness to the occurrence. Only PW2

was examined to prove the allegations about the overt acts. The

learned Magistrate took note of the fact that the offences are

allegedly committed in respect of an item of property regarding

which there is dispute between the brother and sister. The court

further took note of the fact that at any rate the uncorroborated

evidence of PW2 cannot be accepted and acted upon to enter the

verdict of guilty and conviction against the accused.

5. Leave is sought to prefer an appeal. I must alertly

remind myself of the nature, quality and contours of the

jurisdiction of this court sitting as a court of appeal considering

the challenge against a judgment of acquittal. PW2 was the only

witness who tendered evidence about the alleged incident. The

learned Magistrate felt that reliance could not be placed on such

uncorroborated testimony. I am unable to find anything so

grossly erroneous or any other vice in the said finding which

does require correction by interference in an appeal against

Crl.L.P.No.576/2008 3

acquittal. The trial court, it must always be remembered, has

the evident advantage of seeing the performance of witnesses

performing before it. Initial presumption of innocence in favour

of the witnesses gets further fortified by the judgment of

acquittal rendered by the trial court also. In any view of the

matter, I am not satisfied that there is any merit or justification

in the prayer for appellate interference against the impugned

judgment of acquittal. No purpose will be served by granting

leave. I am satisfied that leave does not deserve to be granted.

6. This Crl.L.P is in these circumstances dismissed.

(R.BASANT, JUDGE)

jsr