IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1123 of 2001()
1. STATE
... Petitioner
Vs
1. KONTHALAM
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.T.A.UNNIKRISHNAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :14/11/2008
O R D E R
V.K.MOHANAN, J.
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Crl.A.No. 1123 of 2001 - D
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Dated this the 14th day of November, 2008
J U D G M E N T
This appeal is filed at the instance of the State
against the order of acquittal passed by the Judicial First
Class Magistrate Court -II, Thodupuzha in C.C.No.741 of
1997.
2. The case of the prosecution is that on 18.7.1997
at about 11.30 p.m. during the night, the accused formed
themselves into an unlawful assembly, knowing that each of
them are members of such assembly armed with chopper,
iron road, pickaxe, spade and axe, trespassed into the
property of CWs.1 and 2 at Kummamkallu and demolished
the compound wall from north to south about 60 metres which
was constructed by using stones, bricks and cement and also
cut and removed the tender trees and they thereby sustained
loss of Rs.30,000/- and thus, the accused committed the
offences punishable under Sections 143, 147, 447 and 427
read with Section 149 I.P.C. On the basis of the above
allegation, Crime No.369 of 1997 was registered in the
Thodupuzha Police Station. After completing the
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investigation, the charge was laid by the A.S.I. of Thodupuzha
Police Station. On appearance of the accused, after serving
necessary documents, the particulars of the offences were read
over and explained to them to which the accused pleaded not
guilty. Thereafter, the prosecution examined Pws.1 to 6 and
Exts.P1 to P8 were marked. During the examination of the
accused under Section 313 of the Cr.P.C, they denied all the
incriminating circumstances which came out through the
prosecution evidence. The accused took a stand of total denial.
Based upon the pleadings and materials on record, the trial court
formulated three issues for its consideration and finally found that
no conviction is warranted with the available evidence against the
accused and hence accordingly, accused Nos. 1 to 12, 14 to 16,
18 to 20 and 22 to 26, who faced the trial, were found not guilty
and they were accordingly acquitted under Section 255(1) of the
Cr.P.C. The case against accused Nos. 13,17 and 21 was split
up and refiled as C.C.No.622 of 2001. Thus, out of the 26
accused against whom the charge was laid for the above offence,
accused Nos.13,.17 and 21 were not turned up to face the trial,
and therefore, the case against them was split up and refiled. It
is the above order of acquittal that is challenged by the State in
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this appeal.
3. I have heard learned Public Prosecutor as also the
counsel appearing for the respondents.
4. The case of the prosecution is disclosed mainly through
the deposition of PW1. According to him, while he was
sleeping, he heard barking of dog at about 11.30 p.m. on
18.7.1997 and he woke up and put on the light and he then saw,
the accused were demolishing the compound wall on the
southern side of their property by using iron rod, spade, pick-axe,
chopper, axe etc. According to PW1, he orally resisted such act
of the accused and CW2 also requested the accused to withdraw
from the illegal activities. According to PW1, the accused
continued their act at about 4 O’ clock early in the morning.
Apart form the demolition of the compound wall, it is stated that
the accused also cut and removed the coffee tree and other trees
near the compound wall and thus, according to him, he had
sustained a loss of Rs.95,000/-. Thus, in the next morning,he
gave a statement to the Police which is marked as Ext.P1.
According to PW1, the motive behind the act is that PW1 was not
amenable to the request of the accused for a pathway through his
property, and therefore, they forcibly entered into the property of
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PW1 and demolished the compound wall. It is also his specific
case that he had already approached the civil court by filing
O.S.No.292 of 1997 as he was enjoying the property from 1971
onwards and the suit was decreed in favour of him and on the
strength of the order of the civil court, he reconstructed the
compound wall and at that time also, the accused resisted the
construction. It is also his case that since the accused criminally
interfered and resisted the construction of the compound wall, he
had preferred C.C.No.180 of 1998 before the trial court which
was pending for trial. Exts.P2 to P6 were marked. There is no
defence witness. On the side of prosecution, PW2 who is none
other than the wife of PW1 was examined and she had also
deposed in terms of the deposition of PW1. PW3 who was
claimed to be an eye witness was also examined and according
to him, the accused demolished the compound wall on the
southern side of their property using iron rod, pick-axe, chopper
etc. PW4 was also claimed to be an eye witness and according
to him, he had also seen the accused demolishing the compound
wall of PW1 at about 12 O’ clock in the night of 18.7.1997. PW5
is an attestor to the scene mahazar Ext.P7. PW6 is the Head
Constable attached to the Thodupuzha Police Station who
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registered Ext.P8 F.I.R. in Crime No.369 of 1997 on the basis of
Ext.P1 statement given by PW1.
5. On the basis of the above evidence, learned Public
Prosecutor submits that the prosecution has adduced available
evidence without creating any artificial evidence. According to
the Public Prosecutor, even going by the judgment of the trial
court, it can be seen that the learned Magistrate, on accepting the
evidence of the prosecution witnesses, came to the conclusion
that the presence of the accused was established by the
prosecution, but the order of acquittal of the trial court was based
upon the slight defect on the part of the witnesses in deposing
with respect to the overt act with respect to each of the accused.
The learned Public Prosecutor submits that the incident had
taken place during the mid night and the only evidence available
is that of the local people who happened to be the relatives of
PW1 and therefore, there is no bar in accepting their evidence
and acting upon and therefore, the learned Public Prosecutor
submits that the order of acquittal passed by the court below is
without any basis and is liable to be interfered with.
6. On the side of the respondents/accused, it is pointed
out that the main failure on the prosecution is that they could not
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establish the overt act alleged to have played by each of the
accused. It is also the case of the defence that though PW1 has
stated that three persons namely, Moosa, Ibrahim and Baby have
seen the incident, but they were not cited as a witness. It is also
pointed out that though the prosecution witness has stated about
the cutting and removal of trees, there is no mention about such
act in the scene mahazar. Therefore, according to the
respondents/accused, the finding arrived on by the court below is
based upon the materials on record and after appreciating the
evidence and hence, no interference is warranted as the
prosecution failed to make out a case to interfere with the order of
acquittal.
7. I have heard the learned Public Prosecutor and also
counsel for the respondents and also perused the materials
available on record.
8. Going by the records, it is seen that there are 26
persons shown as accused, though in the F.I.statement, PW1
has stated that about 50 persons were involved in the illegal
activities. Even according to PW1, he knows all the accused, but
when he preferred the F.I.statement, he mentioned only names of
10 to 30 persons. He had categorically stated during cross-
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examination that though he was aware of the details of the
accused, he had further stated that the names of the accused
were given after collecting the details from the locality and from
his friends. Thus though in the F.I.statement, PW1 had stated
that more than 50 persons were involved, the Police had
registered the case only against 26 persons. PW1 himself had
stated that the witnesses namely Baby and Alex are brother-in-
laws. PW-2 is the wife of PW1. Going by the evidence of PW1
itself, it can be seen that a serious dispute was pending between
PW1 and the accused and he had also moved a suit against the
accused, which according to PW1, resulted in a decree in favour
of him. He had also stated that he had preferred a criminal case
i.e., C.C.No.180 of 1998, before the trial court itself, which was
also pending consideration. Therefore, it can be seen that the
prosecution witnesses are highly interested persons and
therefore, their evidences have to be scrutinised very carefully.
As observed by the learned Magistrate, the evidences of the
prosecution witnesses would not help the prosecution to
incriminate the accused with the alleged offence and they had got
different versions as to the number of the accused and their overt
act. It is true that even according to the prosecution, the incident
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had taken place during the night, but according to PW1, he was
having emergency lamp and under the light of the emergency
lamp, he identified the accused. But, as pointed out by the trial
court, the prosecution witnesses were not able to identify the
accused and their respective role. The above lacuna assumes
importance in the present case since even according to PW1,
more than 50 persons were involved in the incident, but he could
identify only ten persons and the names of the other persons
were given after discussion and deliberation with the
neighbouring persons in the next day. Therefore, as there is no
conclusive evidence or proof as to who are the persons or
accused engaged in the alleged demolition of the compound wall
and caused damage etc., the accused cannot be convicted
especially, on the basis of the interested testimony of the
prosecution witnesses.
9. The learned Public Prosecutor pointed out that the only
defect on the side of the prosecution witnesses was that they
were unable to point out that particular role played by the
accused, but at the very same time, the presence of the accused
was proved beyond doubt and therefore, the court below ought to
have convicted the accused. I am afraid to accept such
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contention. Here, the specific case raised against the accused is
that they have themselves formed into an unlawful assembly with
the object of committing mischief etc.. In the absence of any
evidence regarding the specific overt act of each accused
especially, when PW1 miserably failed to point out the persons
who are involved in the incident except the mentioning of 10 to 30
names of persons, no court can come to the conclusion that the
accused have committed offences under Sections 143, 147, 447
and 427 with the aid of Section 149. As pointed out earlier, since
the prosecution witnesses are highly inimical and highly
interested, their evidence cannot be accepted as such without
corroboration from independent sources.
10. In the present case, there is no independent
evidence at all. As rightly pointed out by the respondents/
accused, though in Ext.P7 scene mahazar, there is a description
regarding the standing trees, nothing is stated about trees or
plants which were cut and removed. Ext.P7 seems to be a
contemporary document prepared by the Police on inspection of
the scene of occurrence. If the version of the prosecution that is
made through the witnesses is believable, the same must found
a place in Ext.P7. Here, the prosecution witnesses though stated
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regarding the cutting and removal of plants and trees, there is no
reference or mention in Ext.P7. The above fact itself is sufficient
to hold that prosecution witnesses are highly interested in making
false and baseless allegations against the accused.
11. It is also pointed out by the learned Magistrate that in
spite of repeated summons and coercive steps, the Investigating
Officer did not turn to adduce evidence and the prosecution is
also not cared to produce the said witness. It is also relevant to
note that though the prosecution witnesses have stated that three
persons viz., Moosa, Ibrahim and Baby have seen the incident,
none of those persons have been cited or examined to prove the
prosecution case. Thus, by non-examination of the independent
witnesses and the investigating officer, the prosecution withheld
the independent evidence from the scrutiny of the court. It is in
the above factual and legal basis, the trial court found that the
evidence of Pws.1 to 4 are not helpful for the prosecution to
connect the accused with the alleged offence, especially when
their versions are different with respect to the number of accused
and their overt act and those witnesses are not sure about the
overt act of each and every accused. It is also found by the trial
court that the witnesses were unable to identify the accused since
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the alleged incident had taken place at 12 O’ clock in the night.
The trial court also observed that the serious dispute was
pending between the prosecution witnesses and the accused.
Thus, it was on the basis of the above observation and
discussion and after examining the evidence, the trial court found
that the conviction cannot be warranted against the accused and
accordingly, the trial court found that the accused, who faced the
trial, were not guilty and accordingly, they were acquitted.
According to me, the finding arrived on by the court below is
absolutely correct and based upon the materials on record. No
case is made out pointing out any illegality or perversity in the
finding of the court below so as to interfere with the order of
acquittal passed by the trial court. Consequently, the appeal fails
and is dismissed.
In the result, there is no merit in the appeal and
accordingly, the same is dismissed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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Crl.A.NO. 1123 OF 2001
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J U D G M E N T
DATED: 14-11-2008
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