The central legal point established is the importance of possession, intention, and burden of proof in establishing criminal liability for trespass.

1. Respondents Smt. Niva Banikya wife of Sri Bhuban Das, Sri Bhuban Das, son of Sri Bhabani Prasad Das and Sri Prandip Das son of Sri Bhuban Das were all tried by the learned Sub-Divisional Judicial Magistrate, North Salmara under sections 447/34, 427/34 and 379/34, IPC and acquitted all of them having not found guilty under those charges.

2. Feeling aggrieved by the judgment of acquittal the complainant appellant who initiated the original proceeding of C.R No. 322 of 1998 filed this appeal challenging its legality and correctness thereof.

3. Before entering into the merit of this appeal it would perhaps be appropriate for this court to make a short survey of the prosecution case for better appreciation and understanding.

4. The factual matrix of this appeal can be summarized as under. The appellant Smti Geeta Banikya (P. W. 1) is the wife of Sri Jitendra Banikya (P.W.2). She as complainant filed a complaint (Ext.l) before the Sub-Divisional Judicial Magistrate, North Salmara against the respondents who are husband, wife and son alleging, inter alia, that the land described in the Schedule of the complaint belonged to her and she had been possessing the same by constructing the houses thereon. It is further alleged in Ext. 1 that the land originally belonged to her husband Sri Jitendra Banikya who gifted the same to her by a registered deed of gift. Till 9.9.1998 she had been possessing the said land peacefully without any disturbance from any corner. But suddenly on 10,9.1998 the respondents criminally trespassed into the said land and destroyed the houses thereon and also removed the building materials there from. It is to be noted that since long before of the occurrence, the respondents were trying to take forcible possession of the said land for which she had to file civil suit against the respondents. The said civil suit is still sub juice. Protest was made, but the respondent threatened the appellant, she stood as a mere spectator with some of her witnesses. The value of the property removed by the respondent had been shown at Us. 25,000 approximately.

5. On the lodgment of the said complaint the learned Magistrate issued search warrant for recovery of the stolen articles and police on the strength of the said search warrant seized some articles (building materials) vide Seizure Memo Ext. 4 and produced before the court. After examination of the appellant under section 200 of the Cr.PC and another witness, the court took cognizance of the offences under section 447/427/379/506 read with section 34 of the Penal Code and issued process against the respondents.

6. Before framing of the charge, the learned trial court examined 2 witnesses and after hearing both sides, the learned trial court was pleased to frame charges against the respondents as above. After charge, the witnesses were further cross-examined. It is to be noted that another witness (P.W.3) was also examined and cross-examined and discharged.

7. At the conclusion of the trial learned trial Magistrate failed to record a finding of conviction and acquitted all the respondents. Hence, this present appeal.

8. Heard Sri S.C. Biswas, learned counsel assisted by Sri M.K. Mazumdar, Mr. A.K. Hussain, Ms. M. Bordoloi, Mr. S. Alom and Mr. Z. Ahmed for the appellant and also heard Mr. B.S Sinha, learned Additional P.P. for the State of Assam, one of the respondents.

9. Two pertinent questions are raised by the learned counsel for the appellant:

(a) That the learned trial court misread the evidence of the witnesses and, thus, failed to appreciate the evidence on record in its proper perspective and, thus, arrived at an erroneous finding.

(b) That the learned trial court failed to appreciate the law that in a case under section 447, IPC possession is alone concerned and not the ownership. Institution of a civil suit against the respondent for the land where trespass had been committed and other offences under section 447/427/379, IPC cannot destroy criminal liability. Accused respo

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