Dismissed

E.C.Balan v. Vineetha R.Kottai

Kerala HC10 Oct 2012Crl.Rev.Pet/928/2004

Case brief

AI extract

What is this about?

In a criminal revision petition, the Kerala High Court upheld the conviction of two accused under sections 341, 323, 379, and 34 of the IPC for assault and robbery. The court held that the evidence of the injured victim was cogent and that the revisional jurisdiction could not interfere as the lower courts' appreciation was not perverse.

What did the court decide?

The criminal revision petition was dismissed, confirming the conviction and sentence of the accused.

E.C.Balan Vs Vineetha R.Kottai — Cheating and Forgery | 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 S. SIRI JAGAN

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WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934

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Crl. Rev. Pet. No. 928 of 2004 (A)

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CRA. NO.672/1999 of ADDL. DISTRICT & SESSIONS JUDGE FAST TRACK (ADHOC)II, KOZHIKODE

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CC.NO.335/1997 of J.M.F.C.,NADAPURAM

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REVISION PETITIONERS/APPELLANT/ACCUSED:

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1. E.C. BALAN, IDAPPALLICHIRAYIL HOUSE, KUNNUMMAL, KOZHIKODE DISTRICT.

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2. E.C. RAJESH, S/O. BALAN, IDAPPALLICHIRAYIL HOUSE, KUNNUMMAL, KOZHIKODE DISTRICT.

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BY ADVS. SRI. B. KRISHNAN SRI. R. PARTHASARATHY

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RESPONDENTS/COMPLAINANTS/RESPONDENTS & STATE:

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1. VINEETHA. R. KOTTAI, D/O. KRISHNAN MASTER, `VINEETHA BHAVAN' KUNNUMMAL AMSOM, PATHIRIPPATTA DESOM, KOZHIKODE.

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

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R1 BY ADV. SRI. ANTONY V. PAUL

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R2 BY PUBLIC PROSECUTOR SRI. A.J. JOSE

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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S. SIRI JAGAN, J.

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--------------------------------------Crl. R.P. No.928 of 2004

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Dated this the 10^th day of October, 2012.

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O R D E R

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The accused in Calender Case No.335/1997 before the Judicial First Class Magistrate, Nadapuram are the petitioners in this Crl. R.P. They were prosecuted for offences punishable under Sections 341, 323 and 379 read with Section 34 of the Indian Penal Code. The prosecution was on a private complaint filed by the 1^st respondent herein. The prosecution case was as follows:

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The complainant and the accused are neighbours. There was a dispute between them regarding the right of way to the complainant's property. The complainant had filed O.S. No.59/1997 before the Munsiff's Court, Nadapuram and obtained an interim injunction in I.A. No.620/1997 restraining the accused from causing any obstruction to the road leading to the house of the complainant. After the injunction order, the accused caused obstruction to the road by unloading granite stones and making mud pits and holes on the road. These acts of the accused were filmed by the son of the complainant Rishikesh. Thereafter, on

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Crl. R.P. No.928 of 2004

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24.05.1997 at about 6:45 a.m while the complainant's son and his friends were on their way to Kozhikode for attending classes in NIET, when they reached in front of the house of the accused in Pathirippatta Road, the accused in furtherance of their common intention, wrongfully restrained her son and the 1^st accused caught hold of the shirt of her son, while the 2^nd accused beat him on his back and kicked him on his buttock. The 1^st accused threatened her son demanding the film roll and the 2^nd accused caught hold of the bag, which was with Rishikesh, searched for the film roll and had stolen Rupees Thousand which was kept in a book in the bag for remitting the fees in Computer Institution. The 1^st accused also kicked on his stomach and since the film roll was not found in the bag, the 2^nd accused threw away the books and bag into the road and thereafter both of them left the place threatening that Rishikesh will not be spared. Rishikesh was taken to the hospital and treated. The police was given intimation from the hospital regarding the incident and a Head Constable came and recorded the statement of Rishikesh, but no case was registered. The complainant contacted the Sub

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Crl. R.P. No.928 of 2004

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Inspector of Police, Kuttiady, C.I of Police and the Rural Superintendent of Police, Kozhikkode. She also sent a grievance petition to the Chief Minister. None of the complaints invoked any positive response from the police. The allegation is that this is because the accused are highly influential persons, both politically and economically and it is because of their influence that the police did not taken any action. The acts of the accused amounted to offences punishable under Sections 341, 323 and 385 read with Section 34 of the Indian Penal Code was the averments in the complaint. The complainant examined PWs 1 to 5 and marked Ext. P1 wound certificate. The accused examined DW1, the Head Constable, who recorded the statement of Rishikesh and marked Ext. D1 intimation to the police from the hospital and D2 statement of Rishikesh allegedly recorded by DW1. No M.Os were marked. After considering the evidence, the Magistrate convicted the accused and sentenced them to pay a fine of Rupees Thousand each under Section 379 of the Indian Penal Code with a default sentence of simple imprisonment for three months. They were also sentenced to pay a fine of Rs.500/-

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Crl. R.P. No.928 of 2004

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(Rupees Five hundred only) each under Section 323 of the Indian Penal Code with a default sentence of imprisonment for another

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one month. No separate sentence was awarded under Section 341 read with Section 34 of the Indian Penal Code. Petitioners filed Crl. Appeal No.672/1999 before the Additional District and Sessions Judge Fast Track (Adhoc-II), Kozhikkode. The Sessions Judge dismissed the Appeal confirming the conviction and sentence. The petitioners are challenging the judgments of the Courts below.

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The contention of the petitioners is that, apart from the interested testimony of the complainant and her sons, there is no independent evidence to prove the alleged acts of the accused. It is submitted that there is discrepancies in Ext. D2 statement of Rishikesh before the police and his evidence as PW2. According to the counsel for the petitioners, the only evidence available regarding the occurance of the incident is that of PW2 Sri. Rishikesh. He is an interested person and admittedly the family of the complainant is on inimical terms with the petitioners. Therefore, no conviction could have been entered on the basis of

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Crl. R.P. No.928 of 2004

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the evidence of PW2 alone. Counsel for the petitioners therefore submits that the prosecution has not proved the guilt of the petitioners beyond a reasonable doubt and therefore they are entitled to be acquitted of the offences charged against them.

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I have considered the contentions on the basis of the records available. Before considering the contentions of the petitioners, I must remind myself of the limitations of my jurisdiction under Sections 397 and 401 of the Criminal Procedure Code. Under my revisional jurisdiction, I can interfere with the judgments of the Courts below only if the appreciation of evidence is demonstrably perverse.

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There is no inviolable rule in criminal law that no conviction can be entered on the basis of the evidence of the injured alone, if the evidence is cogent and convincing. Although, the counsel for the petitioners tried to pick holes in the evidence of PW2, I am not satisfied that the same is unacceptable for the purpose of conviction of the accused. On a reading of the evidence of PW2, who is a small boy, I am satisfied that it has a ring of truth and as such the conviction based on his evidence

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Crl. R.P. No.928 of 2004

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cannot be said to be faulty.

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Ofcourse, the counsel for the petitioners stresses the fact

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that the family of the complainant was on inimical terms with the accused and therefore the case has been falsely foisted on the petitioners. I am of opinion that, the said motive can act both ways. Without that motive of enmity between the two, the complainants cannot prove motive for the alleged action of the petitioner. When the very same enmity is projected as a motive for foisting a false case against the petitioner, the same has to be taken with a pinch of salt. Two Courts have concurrently come to the same conclusion that the evidence of PW2 is cogent and convincing to find the petitioners guilty. I am unable to persuade myself to hold that the appreciation of the evidence by the Courts below are demonstrably perverse. Therefore, I do not find any merit in the challenge against the judgments of the Courts below. Accordingly, the Crl. R.P. is dismissed.

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Before parting with the case, I am constrained to express my displeasure over the conduct of the police in this case. The Head Constable, who has recorded the statement of Rishikesh

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Crl. R.P. No.928 of 2004

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has chosen to give evidence on behalf of the accused. He has marked Ext.D1 intimation from the hospital where Rishikesh was treated to the police regarding the incident. He has also marked the alleged statement given by Rishikesh which Rishikesh has stated as wrongly recorded. The Head Constable has given evidence as DW1. But in his evidence he does not state as to why despite recording the statement of the victim, no case was registered. On going through Ext.D2, I find that the same discloses an offence. If that be so, then it is a mystery as to why the police did not register a case on the complaint of Rishikesh. It is under the said circumstances the statement of the complainant that despite several complaints to the police no action was initiated, assumes importance. I am of opinion that, it was dereliction of duty on the part of the police in not registering a case. The complaint of the complainant regarding the assault on Rishikesh was good enough for three Courts to concurrently come to the finding that the accused are guilty of the offence charged against them. But our renowned police force did not found it sufficient for even registering a case against the accused. It is

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Crl. R.P. No.928 of 2004

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police personnel like this, who bring disrepute to the police force in Kerala. Unless they mend their ways, I am afraid that the common people in this State will not have any protection from criminals. I strongly condemn the conduct of the police in this case, who have failed in their duty to protect the interest of a boy, who was attacked by the petitioners. I leave it at that.

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S. SIRI JAGAN JUDGE

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E.C.Balan v. Vineetha R.Kottai

Case brief

What is this about?

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E.C.Balan v. Vineetha R.Kottai

Case brief

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