Dismissed

Thomas v. State of Kerala

Kerala HC24 Feb 2012Crl.Rev.Pet/385/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the criminal revision petition against a conviction for criminal mischief and intimidation. The bench held that lower courts correctly interpreted the evidence provided by the complainant and witness, and there were no legal grounds to interfere with the appellate court's confirmed conviction.

What did the court decide?

The criminal revision petition was dismissed as it was found to be without merits and no grounds were made out to interfere with the lower appellate court's findings.

Thomas Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933

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Crl.Rev.Pet.No. 385 of 2012 ()

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CRA.NO.326/2009 of ADDL.SESSIONS COURT(ADHOC -II), THRISSUR CC.NO.111/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT,WADAKKANCHERY

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REVISION PETITIONER/ APPELLANT/ACCUSED

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THOMAS, S/O.VARGHESE, VETTIKATTIL HOUSE, KURUMALA VILLAGE DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.T.R.RAJESH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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P.BHAVADASAN, J.

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- - - - Crl.R.P.No.385 of 2012

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- - - - Dated this the 24^th day of February, 2012

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O R D E R

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In respect of an incident which took place on 09.02.2007 at 7.p.m., in which it is alleged that the compound wall of PW1 was damaged and he was intimidated, a complaint was laid against two persons as per Ext.P1 FIS. During investigation, it was found that one of the accused namely Unni had no role to play. Therefore final charge was laid against the revision petitioner. The FIS was recorded, crime was registered and after investigation charge sheet was laid before the court.

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On appearance of the accused before the court below, all formalities were complied with. To the particulars of the offence read out to him, he pleaded not guilty and claimed to be tried. Prosecution therefore examined PWs 1 to 4 and had Exts.P1 to P3 marked. After

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the close of prosecution’s evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the

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Crl.R.P.No.385 of 2012

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incriminating circumstances brought out in the evidence against him and maintained that he is innocent. He also stated that PW1 was convicted in C.C.No.173/94 and it was out of the said rivalry, that the present case has been foisted on him. However the accused chose to adduce no evidence.

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The trial court found the evidence of PWs 1 and 2 to be acceptable and sufficient to prove the prosecution case. Based on their evidence, the trial court came to the conclusion that the incident as spoken about by PWs 1 and 2, had in fact occurred and the mischief was committed by the revision petitioner herein. Accordingly, the trial court convicted the accused for the offences punishable under Section 427, 447 and 506(i) of IPC and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.1,000/- under Section 427 of IPC with a default clause of 7 days simple imprisonment and to undergo simple imprisonment for one month for the offence punishable under Section 447 IPC and to undergo simple

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Crl.R.P.No.385 of 2012

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imprisonment for one month under Section 506(i) of IPC. It was also directed that the substantive sentence shall run concurrently. There would have been a further direction that if the fine amount was realized, the same shall be paid as compensation to PW1.

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The matter was carried in appeal as Crl.A.No.326 of 2009 by the revision petitioner herein. The appellate court confirmed the conviction but modified the sentence, by substituting the sentence of imprisonment by payment of fine.

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The learned counsel appearing for the revision petitioner pointed out that the courts below have not properly appreciated the evidence on record and have not noticed the improbabilities in the prosecution’s case. Attention was drawn to the fact that initially the allegation was against two persons namely the accused herein and also one Unni. Regarding the role of Unni, they had different versions. According to PW2, Unni had come at the road in front of his house in a Motor Bike and accused had

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Crl.R.P.No.385 of 2012

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come on that Motor Bike. According to PW2, Unni, after leaving the accused at the place of incident left the place. But PW1, the complainant had no such case. After investigation, it was found that no role was played by Unni and his name was deleted. It was also pointed out that the compound wall that was alleged to have been demolished was made up of granite and there is no case for the prosecution that any weapon has been used by the accused to pull down the compound wall. In fact, prosecution case was that the accused had used his hands to pull down the granite wall. It was highly improbable. Certain other inconsistencies in the evidence of PWs 1 and 2 were also pointed out and it is stated the prosecution has not succeeded in establishing the case beyond reasonable doubt.

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One must remind oneself that both the courts below have on an appreciation of the materials on record and going by the evidence furnished by PWs 1 and 2 come to the conclusion that the offence had been made out . Findings

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Crl.R.P.No.385 of 2012

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are entered on appreciation of the evidence in the case. The role of this Court while exercising a revisional jurisdiction is extremely limited.

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Both the courts have chosen to accept the evidence of PWs 1 and 2. It is significant to notice that at the time, when the appeal was taken up for hearing before the courts below, the submission made by the learned counsel appearing for the appellant was that he does not wish to address the court on merits of the case and prayed for leniency with regard to the sentence. The lower appellate court observes as follows in its judgment:-

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But, when the case was taken up for final hearing, the learned counsel representing the appellant submitted that he is not pressing any of the said contentions and that his part of the arguments may be taken as heard. His only prayer was for taking a leneient view in respect of the sentence of imprisonment awarded by the lower court. Considering the above aspects, I do not propose to discuss the grounds set out in the appeal memorandum or dig deep into the contentions raised before the lower court. However, a brief appraisal of the materials available before me is necessary to satisfy myself as to the sustainability of the finding entered into by the lower court.

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Crl.R.P.No.385 of 2012

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Even, in spite of the above submission, the lower court did not abdicate its function from finding out if there was any other error committed by the trial court. The lower appellate court went into the evidence and found that the evidence furnished by PWs 1 and 2 are sufficient to find the accused guilty. The lower appellate court has also noticed that there are some inconsistencies in the evidence of PWs 1 and 2, but they are not so glaring to doubt the prosecution’s version about the incident.

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One has to notice that there was prompt lodging of the F.I.S, even though it also mentioned the name of another person by name Unni in the initial stage, but during investigation it was found that Unni had no role to play. It is significant to notice that both PWs 1 and 2 say about the arrival of Unni. While PW2 would say that he had left the place, PW1 says that he remained there. Probably it is because of the presence of Unni, his name was also given by PW1 at the time of furnishing the FIS. But the main offensive act was attributed to the revision petitioner

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Crl.R.P.No.385 of 2012

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herein. The fact that a portion of the compound wall is pulled down is confirmed by the Scene Mahazar where that fact is seen mentioned. The mere fact that there is no allegation for the prosecution that any weapon has been used by the accused to pull down the wall itself is not a ground to doubt the prosecution version.

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It is no doubt true that the compound wall is a granite wall and the allegation seems to be that the accused used his hands to pull down the wall. Since both the courts below have chosen to believe the version given by PWs 1and 2, there is nothing improbable in drawing a conclusion that prosecution has succeeded in proving its case. A different view is not possible.

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At any rate, it could not be said that the lower courts view is faulty or not based on evidence on record.

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Since the revision petitioner was unable to show any illegality, irregularity or impropriety in the findings of the courts below warranting interference in the revisional jurisdiction is quite un-called for. Further the lower

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Crl.R.P.No.385 of 2012

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appellate court has been extremely considerate in the matter deleting the substantive sentence imposed by the trial court and it was converted into one of fine. That is all that was sought for by the appellant at the time of arguing the appeal. Even then, as already noticed, the lower appellate court has performed its function and duty by going on the merits of the case also and found that trial court was justified in coming to the conclusion that the offence had been made out.

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The result is that no grounds are made out to interfere with the findings of the lower appellate court. This revision petition is without merits and is liable to be dismissed. I do so.

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P.BHAVADASAN JUDGE

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kkj

Thomas v. State of Kerala

Case brief

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Thomas v. State of Kerala

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