17-07-2014
BETWEEN:
Dasamantharao Sanyasi Rao …..Appellant/Complainant AND Karri Appa Rao And another …..Respondent/Accused THIS COURT MADE THE FOLLOWING JUDGMENT:
JUDGMENT:
The Criminal Appeal is preferred by the de facto Complainant challenging the Judgment dated 15.06.2007 passed in C.C. No.102 of 2005 by the Court of the Judicial First Class Magistrate, Yelamanchili whereby the learned Judge acquitted the accused for the offence under Section 427 IPC.
The case of the prosecution, as recorded by the Court below, is as follows:
The Complainant is the owner of the land in an extent of 77 cents covered by S.No.1/1 of Kattubalu Village in Rambilli Mandal. The accused is also having same extent of land in the same survey number. The accused purchased 77 cents of land from the co-owner of the complainant. The complainant got partitioned his share of land from the share of the accused by filing a suit in O.S.242/89 on the file of Principal Junior Civil Judge’s Court, Yellamanchili. Subsequently the complainant filed a final decree petition in I.A.19/01 and the same was allowed. Thereafter the complainant filed E.P.95/01 for delivery of his share and for separate possession. The land was delivered to the complainant on 17.12.2001 through court and the same was recorded by the court. The accused is aware of all the above proceedings. Subsequent to the delivery of the land, the complainant requested the accused to cooperate with him to raise bunds in between their respective shares but the accused did not cooperate with the complainant. In the above circumstances, the complainant decided to raise bunds on his own and on 16.6.2004, he raised field bunds with the help of his son and by engaging two labourers. The work continued on 17.6.2004 also. The complainant though intimated the accused about his rising bunds the accused did not come to the field. On 22.6.2004 the complainant went to the land and found that the seed bed is completely destroyed by the accused. The complainant raised disputes before village elders of Kattubalu village but the accused failed to attend the dispute. On 25.6.2004 the accused destroyed the fields bunds raised by the complainant by engaging hired tractor. Again the complainant raised disputes before the village elders but the accused failed to appear before the elders. Due to the acts of the accused, the complainant sustained loss to a tune of Rs.2,000/-. The complainant gave a report to the Rambilli Police on 29.6.2004 but the police did not take any action. Hence the complaint is filed to try the case against the accused and punish him according to law.
To substantiate the case of the prosecution, the prosecution examined P.Ws.1 to 6 and marked Exs.P.1 to P.5. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court acquitted the accused observing as follows.
In view of the said presumptions the burden lies on the complainant to show that the tenancy was terminated but the complainant did not let in any evidence to show that the tenancy came to an end. When there is no evidence in proof of the termination of the tenancy, the tenancy in between the complainant and the accused as confirmed in ATC 9/89 as confirmed in ATA 10/94 has to be believed. Therefore, the contention of the complainant that the tenancy automatically came to an end soon after the land was delivered to him cannot be sustained. Therefore, I hold that the accused is a tenant under the complainant even by the date of the alleged offence and the complainant interfered with the tenancy rights of the accused without due process of law. The evidence let in by the complainant to show that the accused removed the field bunds is not convincing. Neither the complainant nor his son was present at the time of the alleged removal of the field bunds. They only came to know about the removal of the field bunds through other villagers. P.W.2 and 3 who are the labourers engaged by the complainant only stated that they have raised field bunds on 16.6.04 and 17.6.04 and the accused was not present at the time of raising field bunds. Subsequently they have learnt that the accused has removed the bunds. Therefore, the evidence of P.W.2 and 3 is only hearsay. The evidence of P.W.5 shows that the complainant raised field bunds in his land with the help of P.W.2 and 3 and on 21.6.2004 the accused removed the bunds. He also deposed that the accused has ploughed the land on 25.6.2004. Thus the entire case of the complainant depends on the evidence of P.W.5. According to the contents of the complaint on 22.6.2004 the complainant went to the field and noticed that the seed bed is completely damaged by the accused and he was informed by P.W.5 on 26.6.2004 that the accused damaged the field bunds on 25.6.04. Even P.W.1 has stated that on 22.6.2004 he went to his land and observed the seed bed of the paddy saplings was completely damaged and the bunds were removed and on 26.6.2004 P.W.5 informed him that the accused had removed the bunds on 25.6.2004 by engaging a hired tractor. As per the contents of the complaint and the evidence of P.W.1 the removal of the bunds took place on 25.6.2004 but according to the evidence of P.W.5 the accused removed the field bunds on 21.6.2004. This creates any amount of doubt with regard to the witnessing of the incident by P.W.5. The complainant did not examine the driver of the tractor who allegedly removed the bunds. The complainant also did not examine the alleged elders before whom he raised disputes twice. I am of the view that the act of the complainant in raising bunds in between his share and the share of the accused is without any authority. The delivery of the land as given in Ex.P.1 is only symbolical delivery as the land is under the cultivation of the tenant and without termination of the tenancy and without the consent of the tenant the complainant cannot raise field bunds in the land. Even if the contention of the complainant with regard to the damage caused by the accused is believed to be true the complainant has to approach the Tenancy Court for eviction of the accused but he cannot prosecute the accused for criminal liability. The complainant failed to prove the mens rea on the part of the accused in committing the offence. Therefore, the offence u/s.427 against the accused is not attracted as the evidence of P.W.1 to 5 is inconsistent and I do not believe their evidence.
This Court is of the view that the Court below has considered the evidence in proper perspective and the reasoning given above while acquitting the accused is also in accordance with law.
The Judgment of the trial Court does not suffer from any perverse findings and the acquittal recorded by the trial Court needs no interference by this Court. The criminal appeal fails and is liable to be dismissed.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 17.07.2014 pln