IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2880 of 2008()
1. RAVEENDRAN PILLAI, S/O. KUNJAN KURUP,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. SREERANGANATHAN PILLAI,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------
CRL.R.P. NO. 2880 OF 2008
------------------------------------------
Dated this the 21st day of October, 2008
O R D E R
Petitioner is the defacto complainant. Revision is filed
challenging the order of acquittal passed by the Sessions Judge,
Kollam in Crl. Appeal 219 of 2006. That appeal was filed by the
first accused who was convicted in C.C.106 of 2004 by Judicial
First Class Magistrate-II, Punalur for the offence under section
447 and 427 of Indian Penal Code. Prosecution case was that in
furtherance of their common object 28 accused formed
themselves into an unlawful assembly with the common object
of constructing a road after cutting the trees by trespassing into
the northern portion of the property belonging to
petitioner/defacto complainant in violation of the order passed
by a competent Court and they formed themselves into unlawful
assembly on the night of 3.8.2003 at about 9.30 p.m. and
trespassed into the residential property of the petitioner, cut
down valuable trees and constructed a road and caused
damages of Rs.8,00,000/-. It was alleged that all the accused
committed the offences under section 143, 147, 148, 188, 447
and 427 read with section 149 of Indian Penal Code. Police
CRRP 2880/08 2
registered the case after recording Ext.P1 F.I. Statement of the
petitioner and investigated the case and submitted a final report
under section 173 of Cr.P.C., which was taken cognizance by
the learned Magistrate. All the accused pleaded not guilty.
Prosecution examined 7 witnesses and marked 9 exhibits. On
the side of the defence, two witnesses were examined and
Ext.D1 was marked. Learned Magistrate on the evidence
acquitted all the accused except the first accused. First
accused was also acquitted of the offence under section 143,
147, 148, 188 read with section 149 of IPC and convicted for
the offence under section 427 and 447 of IPC. The second
respondent challenged the conviction and sentence before
Sessions Court, Kollam in Crl.Appeal 219 of 2006. Learned
Sessions Judge on reappreciation of evidence allowed the
appeal and acquitted second respondent also. Revision is filed
challenging the order of acquittal passed by learned Sessions
Judge.
2. Learned counsel appearing for petitioner was heard.
3. The argument of the learned counsel is that learned
Sessions Judge was not justified in acquitting second
respondent. It was argued that the evidence was not properly
CRRP 2880/08 3
appreciated by the learned Sessions Judge and answers
extracted by the learned Sessions Judge are not the relevant
answers and evidence of PWs 3 and 4 establish that a group of
persons including second respondent trespassed into the
residential property of the petitioner and thereafter constructed
a road after cutting down the trees and there is no reason to
interfere with the conviction passed by learned Magistrate. It is
therefore argued that the order of acquittal is to be set aside.
4. The prosecution case is that 28 persons formed
themselves into an unlawful assembly with the common object
of constructing a road after trespassing into the property of the
petitioner, cutting down the trees standing therein and in
furtherance of their common object they formed themselves into
an unlawful assembly and trespassed into the property on the
night at about 9.30 p.m. on 3.8.2003 and thereby committed the
offence. The argument is that first accused was one of the
members of the unlawful assembly and evidence establish that a
group of people numbering more than five formed themselves
into an unlawful assembly with the alleged common object and
thereafter committed trespass and damages to the property and
even in the absence of evidence on the individual overtact acts
CRRP 2880/08 4
of second respondent should have been convicted. But learned
Magistrate on the evidence acquitted second respondent of the
offence under section 149 as well as all the other offences
except under section 427 and 447 of Indian Penal Code. In such
circumstances conviction of the second respondent could be
confirmed by the learned Sessions Judge only on satisfying that
there is evidence to prove the overtact committed by the second
respondent constituting the offences as for which he was
convicted. Learned Sessions Judge appreciated the evidence in
the proper perspective and found that the road was constructed
by the Panchayat and there is no evidence to prove any overtact
by second respondent. The argument of the learned counsel is
that evidence of PWs 3 and 4 establish that petitioner was also
one among the group of people who committed the illegal acts.
5. True, even without establishing the overtact on the
part of the second respondent, he could have been convicted
with the aid of section 149 of IPC provided there is evidence to
prove that he was also one of the members of the unlawful
assembly, who committed the offences and the act was pursuant
to the common object. But when the trial Court itself found that
there is no evidence to prove an unlawful assembly and
CRRP 2880/08 5
acquitted of the offence under section 149 of IPC, conviction of
second respondent could only be for his individual acts. Apart
from the general allegation that second respondent was also
among the group of people who trespassed into the property,
there is no evidence with regard to any individual overtact on
the part of second respondent. Learned Sessions Judge also
took note of the fact that in Ext.P1 F.I. Statement he has named
some of the persons who committed offence, and at the time of
evidence PW1 deposed that he could not recognize them. It is
therefore found that evidence of PW1 as against the petitioner
also cannot be relied on. When these facts are appreciated in
the proper perspective, it cannot be said that appreciation of
evidence by learned Sessions Judge was perverse. In any case
the view taken by the learned Sessions Judge is a possible and
reasonable view that could be taken on appreciation of
evidence. In such circumstances there is no reason to interfere
with the order of acquittal.
Revision is dismissed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-