{"id":143476,"date":"2008-11-14T00:00:00","date_gmt":"2008-11-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-konthalam-on-14-november-2008"},"modified":"2018-07-26T21:27:34","modified_gmt":"2018-07-26T15:57:34","slug":"state-vs-konthalam-on-14-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-konthalam-on-14-november-2008","title":{"rendered":"State vs Konthalam on 14 November, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
State vs Konthalam on 14 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1123 of 2001()\n\n\n\n1. STATE\n                      ...  Petitioner\n\n                        Vs\n\n1. KONTHALAM\n                       ...       Respondent\n\n                For Petitioner  :PUBLIC PROSECUTOR\n\n                For Respondent  :SRI.T.A.UNNIKRISHNAN\n\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :14\/11\/2008\n\n O R D E R\n                      V.K.MOHANAN, J.\n             ---------------------------------------------\n                Crl.A.No. 1123 of 2001 - D\n             ---------------------------------------------\n           Dated this the 14th day of November, 2008\n\n                        J U D G M E N T\n<\/pre>\n
            This appeal is filed at the instance of the State<\/p>\n
against the order of acquittal passed by the Judicial First<\/p>\n
Class Magistrate Court -II, Thodupuzha in C.C.No.741 of<\/p>\n
1997.\n<\/p>\n
      2.    The case of the prosecution is that on 18.7.1997<\/p>\n
at about 11.30 p.m. during the night, the accused formed<\/p>\n
themselves into an unlawful assembly, knowing that each of<\/p>\n
them are members of such assembly armed with chopper,<\/p>\n
iron road, pickaxe, spade and axe, trespassed into the<\/p>\n
property of CWs.1 and 2 at Kummamkallu and demolished<\/p>\n
the compound wall from north to south about 60 metres which<\/p>\n
was constructed by using stones, bricks and cement and also<\/p>\n
cut and removed the tender trees and they thereby sustained<\/p>\n
loss of Rs.30,000\/- and thus, the accused committed the<\/p>\n
offences punishable under Sections 143, 147, 447 and 427<\/p>\n
read with Section 149 I.P.C.          On the basis of the above<\/p>\n
allegation, Crime No.369 of 1997 was registered in the<\/p>\n
Thodupuzha     Police     Station.          After     completing the<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                                :-2-:\n<\/p>\n
investigation, the charge was laid by the A.S.I. of Thodupuzha<\/p>\n
Police Station. On appearance of the accused, after serving<\/p>\n
necessary documents, the particulars of the offences were read<\/p>\n
over and explained to them to which the accused pleaded not<\/p>\n
guilty. Thereafter, the prosecution examined Pws.1 to 6 and<\/p>\n
Exts.P1 to P8 were marked.         During the examination of the<\/p>\n
accused under Section 313 of the Cr.P.C, they denied all the<\/p>\n
incriminating circumstances which came out through the<\/p>\n
prosecution evidence. The accused took a stand of total denial.<\/p>\n
Based upon the pleadings and materials on record, the trial court<\/p>\n
formulated three issues for its consideration and finally found that<\/p>\n
no conviction is warranted with the available evidence against the<\/p>\n
accused and hence accordingly, accused Nos. 1 to 12, 14 to 16,<\/p>\n
18 to 20 and 22 to 26, who faced the trial, were found not guilty<\/p>\n
and they were accordingly acquitted under Section 255(1) of the<\/p>\n
Cr.P.C. The case against accused Nos. 13,17 and 21 was split<\/p>\n
up and refiled as C.C.No.622 of 2001.        Thus, out of the 26<\/p>\n
accused against whom the charge was laid for the above offence,<\/p>\n
accused Nos.13,.17 and 21 were not turned up to face the trial,<\/p>\n
and therefore, the case against them was split up and refiled. It<\/p>\n
is the above order of acquittal that is challenged by the State in<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                               :-3-:\n<\/p>\n
this appeal.\n<\/p>\n
      3.    I have heard learned Public Prosecutor as also the<\/p>\n
counsel appearing for the respondents.\n<\/p>\n
      4. The case of the prosecution is disclosed mainly through<\/p>\n
the deposition of PW1.      According to him,       while he was<\/p>\n
sleeping, he heard barking of dog at about 11.30 p.m.           on<\/p>\n
18.7.1997 and he woke up and put on the light and he then saw,<\/p>\n
the accused were demolishing the compound wall              on the<\/p>\n
southern side of their property by using iron rod, spade, pick-axe,<\/p>\n
chopper, axe etc. According to PW1, he orally resisted such act<\/p>\n
of the accused and CW2 also requested the accused to withdraw<\/p>\n
from the illegal activities.   According to PW1, the accused<\/p>\n
continued their act at about 4 O’ clock early in the morning.<\/p>\n
Apart form the demolition of the compound wall, it is stated that<\/p>\n
the accused also cut and removed the coffee tree and other trees<\/p>\n
near the compound wall and thus, according to him, he had<\/p>\n
sustained a loss of Rs.95,000\/-. Thus, in the next morning,he<\/p>\n
gave a statement to the Police which is marked as Ext.P1.<\/p>\n
According to PW1, the motive behind the act is that PW1 was not<\/p>\n
amenable to the request of the accused for a pathway through his<\/p>\n
property, and therefore, they forcibly entered into the property of<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                                :-4-:\n<\/p>\n
PW1 and demolished the compound wall. It is also his specific<\/p>\n
case that he had already approached the civil court by filing<\/p>\n
O.S.No.292 of 1997 as he was enjoying the property from 1971<\/p>\n
onwards and the suit was decreed in favour of him and on the<\/p>\n
strength of the order of the civil court, he reconstructed the<\/p>\n
compound wall and at that time also, the accused resisted the<\/p>\n
construction. It is also his case that since the accused criminally<\/p>\n
interfered and resisted the construction of the compound wall, he<\/p>\n
had preferred C.C.No.180 of 1998 before the trial court which<\/p>\n
was pending for trial. Exts.P2 to P6 were marked. There is no<\/p>\n
defence witness. On the side of prosecution, PW2 who is none<\/p>\n
other than the wife of PW1 was examined and she had also<\/p>\n
deposed in terms of the deposition of PW1.         PW3 who was<\/p>\n
claimed to be an eye witness was also examined and according<\/p>\n
to him, the accused demolished the compound wall on the<\/p>\n
southern side of their property using iron rod, pick-axe, chopper<\/p>\n
etc. PW4 was also claimed to be an eye witness and according<\/p>\n
to him, he had also seen the accused demolishing the compound<\/p>\n
wall of PW1 at about 12 O’ clock in the night of 18.7.1997. PW5<\/p>\n
is an attestor to the scene mahazar Ext.P7. PW6 is the Head<\/p>\n
Constable attached to the Thodupuzha Police Station who<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                                 :-5-:\n<\/p>\n
registered Ext.P8 F.I.R. in Crime No.369 of 1997 on the basis of<\/p>\n
Ext.P1 statement given by PW1.\n<\/p>\n
      5.      On the basis of the above evidence, learned Public<\/p>\n
Prosecutor submits that the prosecution has adduced available<\/p>\n
evidence without creating any artificial evidence. According to<\/p>\n
the Public Prosecutor, even going by the judgment of the trial<\/p>\n
court, it can be seen that the learned Magistrate, on accepting the<\/p>\n
evidence of the prosecution witnesses, came to the conclusion<\/p>\n
that the presence of the accused was            established by the<\/p>\n
prosecution, but the order of acquittal of the trial court was based<\/p>\n
upon the slight defect on the part of the witnesses in deposing<\/p>\n
with respect to the overt act with respect to each of the accused.<\/p>\n
The learned Public Prosecutor submits that the incident had<\/p>\n
taken place during the mid night and the only evidence available<\/p>\n
is that of the local people who happened to be the relatives of<\/p>\n
PW1 and therefore, there is no bar in accepting their evidence<\/p>\n
and acting upon and therefore, the learned Public Prosecutor<\/p>\n
submits that the order of acquittal passed by the court below is<\/p>\n
without any basis and is liable to be interfered with.<\/p>\n
      6.      On the side of the respondents\/accused, it is pointed<\/p>\n
out that the main failure on the prosecution is that they could not<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                               :-6-:\n<\/p>\n
establish the overt act alleged to have played by each of the<\/p>\n
accused. It is also the case of the defence that though PW1 has<\/p>\n
stated that three persons namely, Moosa, Ibrahim and Baby have<\/p>\n
seen the incident, but they were not cited as a witness. It is also<\/p>\n
pointed out that though the prosecution witness has stated about<\/p>\n
the cutting and removal of trees, there is no mention about such<\/p>\n
act in the scene mahazar.          Therefore, according to the<\/p>\n
respondents\/accused, the finding arrived on by the court below is<\/p>\n
based upon the materials on record and after appreciating the<\/p>\n
evidence and hence, no interference is warranted as the<\/p>\n
prosecution failed to make out a case to interfere with the order of<\/p>\n
acquittal.\n<\/p>\n
       7.    I have heard the learned Public Prosecutor and also<\/p>\n
counsel for the respondents and also perused the materials<\/p>\n
available on record.\n<\/p>\n
       8.    Going by the records, it is seen that there are 26<\/p>\n
persons shown as accused, though in the F.I.statement, PW1<\/p>\n
has stated that about 50 persons were involved in the illegal<\/p>\n
activities. Even according to PW1, he knows all the accused, but<\/p>\n
when he preferred the F.I.statement, he mentioned only names of<\/p>\n
10 to 30 persons.     He had categorically stated during cross-<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                                 :-7-:\n<\/p>\n
examination that though he was aware of the details of the<\/p>\n
accused, he had further stated that the names of the accused<\/p>\n
were given after collecting the details from the locality and from<\/p>\n
his friends. Thus though in the F.I.statement, PW1 had stated<\/p>\n
that more than 50 persons were involved, the Police had<\/p>\n
registered the case only against 26 persons. PW1 himself had<\/p>\n
stated that the witnesses namely Baby and Alex are brother-in-<\/p>\n
laws. PW-2 is the wife of PW1. Going by the evidence of PW1<\/p>\n
itself, it can be seen that a serious dispute was pending between<\/p>\n
PW1 and the accused and he had also moved a suit against the<\/p>\n
accused, which according to PW1, resulted in a decree in favour<\/p>\n
of him. He had also stated that he had preferred a criminal case<\/p>\n
i.e., C.C.No.180 of 1998, before the trial court itself, which was<\/p>\n
also pending consideration. Therefore, it can be seen that the<\/p>\n
prosecution witnesses are highly interested persons and<\/p>\n
therefore, their evidences have to be scrutinised very carefully.<\/p>\n
As observed by the learned Magistrate, the evidences of the<\/p>\n
prosecution witnesses would not help the prosecution to<\/p>\n
incriminate the accused with the alleged offence and they had got<\/p>\n
different versions as to the number of the accused and their overt<\/p>\n
act. It is true that even according to the prosecution, the incident<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                              :-8-:\n<\/p>\n
had taken place during the night, but according to PW1, he was<\/p>\n
having emergency lamp and under the light of the emergency<\/p>\n
lamp, he identified the accused. But, as pointed out by the trial<\/p>\n
court, the prosecution witnesses were not able to identify the<\/p>\n
accused and their respective role. The above lacuna assumes<\/p>\n
importance in the present case since even according to PW1,<\/p>\n
more than 50 persons were involved in the incident, but he could<\/p>\n
identify only ten persons and the names of the other persons<\/p>\n
were    given  after  discussion    and deliberation  with   the<\/p>\n
neighbouring persons in the next day. Therefore, as there is no<\/p>\n
conclusive evidence or proof as to who are the persons or<\/p>\n
accused engaged in the alleged demolition of the compound wall<\/p>\n
and caused damage etc.,      the accused cannot be convicted<\/p>\n
especially, on the basis of the interested testimony of the<\/p>\n
prosecution witnesses.\n<\/p>\n
       9. The learned Public Prosecutor pointed out that the only<\/p>\n
defect on the side of the prosecution witnesses was that they<\/p>\n
were unable to point out that particular role played by the<\/p>\n
accused, but at the very same time, the presence of the accused<\/p>\n
was proved beyond doubt and therefore, the court below ought to<\/p>\n
have convicted the accused.        I am afraid to accept such<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                               :-9-:\n<\/p>\n
contention. Here, the specific case raised against the accused is<\/p>\n
that they have themselves formed into an unlawful assembly with<\/p>\n
the object of committing mischief etc.. In the absence of any<\/p>\n
evidence regarding the specific overt act of each accused<\/p>\n
especially, when PW1 miserably failed to point out the persons<\/p>\n
who are involved in the incident except the mentioning of 10 to 30<\/p>\n
names of persons, no court can come to the conclusion that the<\/p>\n
accused have committed offences under Sections 143, 147, 447<\/p>\n
and 427 with the aid of Section 149. As pointed out earlier, since<\/p>\n
the prosecution witnesses are highly inimical and highly<\/p>\n
interested, their evidence cannot be accepted as such without<\/p>\n
corroboration from independent sources.<\/p>\n
      10.    In the present case, there is no independent<\/p>\n
evidence at all.    As rightly pointed out by the respondents\/<\/p>\n
accused, though in Ext.P7 scene mahazar, there is a description<\/p>\n
regarding the standing trees, nothing is stated about trees or<\/p>\n
plants which were cut and removed.        Ext.P7 seems to be a<\/p>\n
contemporary document prepared by the Police on inspection of<\/p>\n
the scene of occurrence. If the version of the prosecution that is<\/p>\n
made through the witnesses is believable, the same must found<\/p>\n
a place in Ext.P7. Here, the prosecution witnesses though stated<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                                :-10-:\n<\/p>\n
regarding the cutting and removal of plants and trees, there is no<\/p>\n
reference or mention in Ext.P7. The above fact itself is sufficient<\/p>\n
to hold that prosecution witnesses are highly interested in making<\/p>\n
false and baseless allegations against the accused.<\/p>\n
      11.    It is also pointed out by the learned Magistrate that in<\/p>\n
spite of repeated summons and coercive steps, the Investigating<\/p>\n
Officer did not turn to adduce evidence and the prosecution is<\/p>\n
also not cared to produce the said witness. It is also relevant to<\/p>\n
note that though the prosecution witnesses have stated that three<\/p>\n
persons viz., Moosa, Ibrahim and Baby have seen the incident,<\/p>\n
none of those persons have been cited or examined to prove the<\/p>\n
prosecution case. Thus, by non-examination of the independent<\/p>\n
witnesses and the investigating officer, the prosecution withheld<\/p>\n
the independent evidence from the scrutiny of the court. It is in<\/p>\n
the above factual and legal basis, the trial court found that the<\/p>\n
evidence of Pws.1 to 4 are not helpful for the prosecution to<\/p>\n
connect the accused with the alleged offence, especially when<\/p>\n
their versions are different with respect to the number of accused<\/p>\n
and their overt act and those witnesses are not sure about the<\/p>\n
overt act of each and every accused. It is also found by the trial<\/p>\n
court that the witnesses were unable to identify the accused since<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                                :-11-:\n<\/p>\n
the alleged incident had taken place at 12 O’ clock in the night.<\/p>\n
The trial court also observed that the serious dispute was<\/p>\n
pending between the prosecution witnesses and the accused.<\/p>\n
Thus, it was on the basis of the above observation and<\/p>\n
discussion and after examining the evidence, the trial court found<\/p>\n
that the conviction cannot be warranted against the accused and<\/p>\n
accordingly, the trial court found that the accused, who faced the<\/p>\n
trial, were not guilty and accordingly, they were acquitted.<\/p>\n
According to me, the finding arrived on by the court below is<\/p>\n
absolutely correct and based upon the materials on record. No<\/p>\n
case is made out pointing out any illegality or perversity in the<\/p>\n
finding of the court below so as to interfere with the order of<\/p>\n
acquittal passed by the trial court. Consequently, the appeal fails<\/p>\n
and is dismissed.\n<\/p>\n
            In the result, there is no merit in the appeal and<\/p>\n
accordingly, the same is dismissed.\n<\/p>\n<\/p>\n
                                              V.K.Mohanan,
\n                                                  Judge
\nMBS\/<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                           :-12-:\n<\/p>\n<\/p>\n
                                     V.K.MOHANAN, J.\n<\/p>\n
                            ——————————————–<\/p>\n
                                    Crl.A.NO. 1123 OF 2001\n<\/p>\n
                        ————————————————–<\/p>\n
                                        J U D G M E N T<\/p>\n
                                    DATED: 14-11-2008<\/p>\n
Crl.A.NO. 1123 of 2001<\/p>\n
                          :-13-:<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court State vs Konthalam on 14 November, 2008 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. ——————————————— Crl.A.No. 1123 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-143476","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nState vs Konthalam on 14 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-konthalam-on-14-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Konthalam on 14 November, 2008 - 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