Allowed

Scaria,S/O.Ulahannan v. State of Kerala

Kerala HC15 Jan 2014CRL.A/1624/2003

Case brief

AI extract

What is this about?

In an appeal against conviction and sentencing under the SC/ST Act for insulting a Dalit and initiating false legal proceedings, the High Court of Kerala allowed the appeal. The Judge acquitted the appellant, finding the prosecution evidence insufficient to prove overt acts of dispossession, intentional false litigation based on caste animosity, or that the insult occurred within public view.

What did the court decide?

The conviction and sentence are set aside; the appellant is acquitted of all charges; bail bond cancelled and he is set at liberty.

Scaria,S/O.Ulahannan Vs State of Kerala — Caste Atrocities | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE V.K.MOHANAN

¶4

WEDNESDAY, THE 15TH DAY OF JANUARY 2014/25TH POUSHA, 1935

¶5

CRL.A.No. 1624 of 2003 (E)

¶6

AGAINST THE ORDER/JUDGMENT IN SC 19/2001 of SESSIONS COURT,THODUPUZHA DATED 29-08-2003

¶7

APPELLANT: ACCUSED :

¶8

SCARIA, S/O.ULAHANNAN, THENGUMPILLIL HOUSE, KULAMAVU KARA, IDUKKI DISTRICT.

¶9

BY ADV. SRI.C.J.JOY

¶10

RESPONDENT : COMPLAINANT :

¶11

STATE OF KERALA, REPRESENTED BY THE DY.S.P. THODUPUZHA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OFKERALA, ERNAKULAM.

¶12

BY PUBLIC PROSECUTOR SRI.N.SURESH

¶13

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

V.K.MOHANAN, J.

¶15

Crl.A.No.1624 of 2003

¶16

Dated this the 15^th day of January, 2014

¶17

JUDGMENT

¶18

This appeal is directed against the judgment dated 29/8/2003 in S.C.No.19 of 2001 on the file of the court of Sessions, Thodupuzha and the grievance of the appellant, who is the accused in the above sessions case, is that he is convicted and sentenced for the offence under Section 3(I)(v), (viii) & (x) of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to convenience as 'SC/ST Act' only).

¶19

The allegation against the appellant and the other accused is that, on account of animosity towards PW.1, namely, Podiyan a member of SC belonging to Hindu Kurava Caste, at 3 p.m. on 17/5/1997, the accused intentionally insulted and abused him by calling his caste name on the pathway in front of house No.204 of Ward No.VIII of Arakulam Panchayat in Kulamavu Kara in Idukki Village, a place within

¶20

Crl.A.No.1624 of 2003

¶21

¶22

public view intending to humiliate PW.1 and the accused instituted false vexatious suit before the Vacation Court, Thodupuzha, vide I.A.No.407 of 1997 and obtained interim injunction on 06/05/1997 against PW.1 and interfered with the enjoyment of his rights over the land in possession of PW.1. Thus, according to the allegation, the accused, three in numbers, have committed the offences punishable under Section 3(1)(v), 3(1)(viii) and 3(1)(x) of the SC/ST Act.

¶23

With the above allegation, the de facto complainant

¶24

in the present case preferred a private complaint in the Sessions Court, Thodupuzha from where the said complaint forwarded to the Kulamavu Police Station under Section 156 (3) of Cr.P.C. and thus they registered a case in Crime No.20 of 1997 in the said Police Station.

¶25

On completing the investigation, a report was laid in the Sessions Court, Thodupuzha and the same was received and thus instituted S.C.No.112 of 1997 and thereafter vide order dated 23/3/2000, the records were returned to the police

¶26

Crl.A.No.1624 of 2003

¶27

¶28

for presentation before the proper court and thereafter the police preferred the report in the Judicial First Class Magistrate Court-II, Idukki, wherein C.P.No.43 of 2000 was instituted and the said Magistrate by his order dated 14/12/2000 in C.P.No.43 of 2000 committed the case to the Sessions Court and thus instituted S.C.No.19 of 2001 in the Sessions Court at Thodupuzha.

¶29

When the accused three in numbers appeared and on hearing the preliminary argument of both the prosecution as well as the accused and on perusal of the report and records of the prosecution, the learned Sessions Judge was of the opinion that the materials on record did not show the involvement of A2 and A3 in the commission of offence as alleged and accordingly the learned Sessions Judge discharged accused Nos.2 and 3, vide his order dated 16/10/2002 and at the same time he framed a formal charge against the remaining accused, namely A1, who is the appellant herein for the offence punishable under Section 3(1)(x), 3(1)(v) and 3(1)(viii)

¶30

Crl.A.No.1624 of 2003

¶31

¶32

of the SC/ST Act. Thus, when the said charge was read over and explained to the accused, he denied the charge and pleaded not guilty. As the accused denied the charge, the prosecution adduced its evidence by examining PWs.1 to 5 and by producing Exts.P1 to P9 documents. Though no separate witness is examined from the side of the accused, Exts.D1 to D4 documents are produced and marked from the side of the defence. After considering the above evidence and materials, the learned Judge of the trial court found that the accused delivered possession of the property covered by Ext.P2 and involved in Ext.P3 and D2 suits to PW.1 on 11/12/1995 and the appellant has instituted false and vexatious suit on false allegations before the Vacation Court and obtained Ext.P4 injunction order against PW.1 a member of the Scheduled Caste viz. of Kurava community on 06/05/1997 and interfered with the enjoyment of his rights over the land which was in his possession and the accused had intentionally insulted and in public view abusing him calling by his caste name. On the

¶33

Crl.A.No.1624 of 2003

¶34

¶35

basis of the above finding it is held that the accused is guilty of the offences punishable under Sections 3(1)(v), 3(1)(viii) and 3 (1)(x) of the SC/ST Act and accordingly he is convicted thereunder. On such conviction the accused/appellant is sentenced to undergo simple imprisonment for six months each and to pay a fine of 1,500/- each and in default, to undergo simple imprisonment for one more month each under Sections 3(1)(v), 3(1)(viii) and 3(1)(x) of the SC/ST Act. It is also ordered that substantive terms of imprisonment shall run concurrently. It is further ordered that, if the fine amount of 4,500/- in the aggregate is realised, an amount of `2,000/shall be paid to PW.1, under Section 357(1) of Cr.P.C. Set off is allowed. It is the above finding and order of conviction and sentence, that are challenged in this appeal.

¶36

Heard Sri.C.J.Joy, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.

¶37

Crl.A.No.1624 of 2003

¶38

¶39

PW.1 is the victim and the de facto complainant in this case and he had deposed that on 11/12/1995, the accused, who was in possession of an extent of 60 cents of property, gave him the said property on pledging and received from him an amount of 14,000/-, on condition that, in the event of the accused not repaying the entire amount on or before 11/8/1996, sale deed would be executed in favour of PW.1 in relation to the said property and the above transaction is reduced into writing, which is identified as Ext.P2 agreement, so executed by the accused. According to PW.1, the property mentioned in Ext.P2 has been given in possession of PW.1 by the accused and the said property, according to PW.1, is in his possession, even as on the date of giving the evidence since the accused did not repay the amount of 14,000/- with interest and got the property redeemed. It is the further case of PW.1 that he had made valuable improvements in the property by cultivating plantains, tapioca, coffee, coconut tress, pepper, etc. and also constructed a building in which he is residing. It

¶40

Crl.A.No.1624 of 2003

¶41

¶42

is the further case of PW.1, that the accused attempted to take possession of the said property forcibly without repaying the amount borrowed and with that oblique motive the accused instituted a false suit before the Vacation Court as I.A.No.407 of 1997, which was subsequently transmitted to the Munisiff Court, Idukki, wherein O.S.No.52 of 1997 was instituted. It is the case of PW.1 that, on the strength of injunction order obtained by him at about 3 p.m. on 17/5/1997, the accused attempted to forcibly send PW.1 and family out from the property in question and during such attempt, the accused by calling the caste name of PW.1 intentionally insulted him among the public. According to PW.1, though he had approached the police, the police has not taken any action and thus he was constrained to file a private complaint through his Advocate in the Sessions Court at Thodupuzha and thereafter the police registered a crime against the accused, three in numbers.

¶43

Crl.A.No.1624 of 2003

¶44

¶45

Thus, when PW.1 is examined, Ext.P1 private complaint dated 20/5/1997 which was filed by him before the Sessions Court, Ext.P2 lease agreement executed by the accused and PW.1, Ext.P3-the certified copy of the injunction application i.e., I.A.No.407 of 1997 in O.S.No.52 of 1997 of Munisiff Court, Idukki, Ext.P4 interim order in Ext.P3 injunction application are identified and marked through PW.1. When PW.1 is examined the contradictory portion of his 161 statement is got marked by the defence as Ext.D1. Besides the above contradiction the defence has also got marked Exts.D2 and D3 respectively the copy of the suit and the judgment in O.S.No.51 of 1997 filed at the instance of the de facto complainant-victim. PW.2 is an eye witness cited and examined by the prosecution to prove the occurrence and during the examination of PW.2 he had deposed that he had put his signature in the scene mahazar prepared by PW.5, the investigating officer, and thus Ext.P5 scene mahazar is marked through PW.2. PW.3 is the then Tahsildar of Thodupuzha

¶46

¶47

Crl.A.No.1624 of 2003

¶48

Taluk, who issued Exts.P6 and P7 caste certificates respectively of the accused and PW.1. PW.4 is the then Assistant Sub Inspector of Police, who registered Ext.P8 F.I.R. on 25/7/1997, when Ext.P1 private complaint was received in the Kulamavu Police Station under Section 156 (3) of Cr.P.C. PW.5 is the then Dy.S.P., Thodupuzha who is the investigating officer in this case and when he is examined Ext.P9 mahazar with respect to the seizure of Exts.P2, P3 and P4 documents is marked through him. PW.2 has admitted that he had filed a complaint against the present accused and the accused in that case is acquitted by the judgment dated 27/2/1999 in C.C.No.95 of 1996 of the court of the Judicial First Class Magistrate Court, Idukki and thus the above judgment is marked as Ext.D4. These are the evidences and materials referred to by the learned Judge in the impugned judgment and after consideration of the same the trial court found that the accused has committed the offence as alleged against him and on the basis of such finding the appellant is convicted.

¶49

Crl.A.No.1624 of 2003

¶50

¶51

The learned counsel for the appellant vehemently submitted that the case of the complainant cannot be believed since he did not approach the police by giving information on the date of the alleged incident and he had chosen to file the complaint after three days from the date of the alleged incident and thus Ext.P8 crime registered only on 27/5/1997. So, according to the learned counsel, there is substantial delay in registering the F.I.R. Another important contention advanced by the learned counsel for the appellant is that, though PW.1 approached the court by filing a private complaint wherein the allegations against all the accused are identical, the learned Judge of the trial court discharged accused Nos.2 and 3 on his finding that the available materials does not disclose any offence against those accused. So, according to the learned counsel, the same approach requires in the case of the appellant, who is A1, particularly when the allegation in the complaint against all the accused similar in nature. Thus, according to the counsel, the appellant is

¶52

Crl.A.No.1624 of 2003

¶53

¶54

entitled to get an acquittal. It is also the contention of the learned counsel that, to prove the incident in the present case, except the interested version of PWs.1 and 2, who are enimical to the accused, no independent witness is examined in this case and therefore the trial court committed wrong in accepting the evidence of PWs.1 and 2 without corroboration from independent source of evidence. On the above grounds, the learned counsel submits that, the finding of the court below is liable to be interfered with since the trial court erroneously convicted the appellant, who is now at the age of 66.

¶55

Per contra, the learned Public Prosecutor submitted that, the evidence of PWs.1 and 2, are free from any doubt or material contradiction. Such evidences are sufficient to prove the overt act committed by the accused who called the caste name of PW.1, while he attempted to evict PW.1 from the property, particularly, who filed Ext.P3 injunction application and obtained Ext.P4 interim order in O.S.No.51 of 1997 falsely.

¶56

Crl.A.No.1624 of 2003

¶57

¶58

So, according to the learned Public Prosecutor, the trial court is fully justified in its finding and the conviction recorded against the appellant and as such no interference is warranted.

¶59

I have carefully considered the arguments advanced by the the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the evidence and materials on record.

¶60

In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is, whether the the learned Judge of the trial court is justified in his finding and whether the conviction recorded by him against the appellant for the offences under Sections 3(1)(v), 3(1)(viii) and 3(1)(x) of the SC/ST Act are sustainable. At the out set it is to be noted that, the entire dispute and the prosecution allegation arose connected with a property transaction between the de facto complainant-the victim and

¶61

the accused and it is also relevant to note that, though originally there were three accused and the allegations against

¶62

Crl.A.No.1624 of 2003

¶63

¶64

them are identical in the complaint filed by PW.1, the learned Judge of the trial court discharged accused Nos.2 and 3 on his finding that no material to proceed with the case against those accused. On a close scrutiny of the evidence of PW.1 and the documentary evidence on record, it can be seen that, the suit filed by PW.1 against the appellant/accused resulted in a compromise judgment and decree as evident by Exts.D2 and D3 documents. Suffice to say, Exts.D2 and D3 are dated 24/5/1997. As per the terms the compromise arrived into between the complainant and the defendant in the above suit who are respectively PW.1 and the accused, PW.1-the de facto complainant, who is the plaintiff therein got some advantage and it appears that the property in question agreed to sell in favour of the de facto complainant for which the de facto complainant had agreed to pay an amount of `11,000/- more to the accused. At this juncture it is relevant to note that, the alleged incident which is the subject matter of Ext.P1 complaint taken place on 17/5/1997 and connected with that

¶65

Crl.A.No.1624 of 2003

¶66

¶67

PW.1 has filed a private complaint dated 20/05/1997 just four days in advance to Exts.D2 and D3 compromise judgment and decree. So, at the time of compromise decree at least the plaintiff therein, who is the de facto complainant examined as PW.1 herein, was fully aware that he had already approached the court of law by filing a private complaint against the accused and the same forwarded to the police under Section 156(3) of Cr.P.C. But there is no evidence or materials on record to hold that the accused was aware of the factum of filing private complaint by PW.1, who is the plaintiff in the said suit. According to me, had the accused got any knowledge or information about the filing of the private complaint and forwarding the same to the Police Station for registering a crime, he would not have entered into a compromise with the plaintiff-the de facto complainant resulting in Exts.D2 and D3 judgment and decree. So, according to me, the said facts created doubt in my mind about the veracity of the allegation of the de facto complainant and the prosecution case as such.

¶68

Crl.A.No.1624 of 2003

¶69

¶70

So, the contention of the learned counsel that in the present private complaint was filed only to squeeze money from the accused cannot be ruled out.

¶71

It is also relevant to note that, though in Ext.P1 complaint it is alleged that, the accused three in numbers attempted to dispossess PW.1 from the property in question, according to me, the prosecution in the present case has miserably failed to substantiate the above allegation. Neither in Ext.P1 complaint nor in the deposition of PW.1 any facts stated constituting the overt act of the accused towards dispossessing or evicting the de facto complainant from the property. On a comparison of Ext.P1 complaint and the deposition of PW.1 one can see the material contradiction, infirmities and discrepancies in the evidence of the prosecution case as such. The defence has already marked Ext.D1 contradiction in the deposition of PW.1. In page No.7 of Ext.P1 complaint it is stated:-

¶72

“.....................സമ�ദ�ച ഉതരവ�ന�

¶73

Crl.A.No.1624 of 2003

¶74

¶75

മറവ�ല 17/5/97 ത�യത� പകല 3 മണ� സമയത� 1-ം" പപത�യ$ന% ന'ത(ത)ത�ല മറ+ പപത�കള+" ക-%� വസത$വ�ല വര$കയ$" ആവല�ത�ക�രന'യ$" ക$%$"ബ�"ഗങനളയ$" ഭ�ഷണ�ന7%$ത$കയ$" വസത$ അ'$ഭവനത . ത%സന7%$ത$കയ$" ന:യത�ട+ളത�ണ പപത�കള ആവല�ത�ക�രന' ഭ�ഷണ�ന7%$ത�യന@ഷ" ആവല�ത�ക�രന� വസത$വ�'%$ത$ള നപ�ത$വഴ�യ�നലക�

¶76

ഇറങ� '�ലക$കയ$" ആ സമയ" പപത�കള മ-ന$നപര$" "എ%� ക$റവ കഴ$നവറ� '��%$ത$ '�ന� വസത$ ത�ര�ച� പ�%�ക�ന പറ+നമ�നയന� ന'�കനടനയന� പറഞ$നക�ണ� ആവല�ത�ക�രന' ജ�ത� നപര$ പറഞ� അവനJള�ക$കയ$" ഭ�ഷണ�ന7%$ത$കയ$" ക-%� ന:യത�ട+ളത$മ�ണ.”

¶77

Further in paragraph 6 of the complaint it is stated:-

¶78

“17/5/97 ത�യത�യ�ല പപത�കള വസത$വ�ല വന� ഭ�ഷണ� ന7%$ത�യത�'$", ജ�ത� നപര$ പറഞ� അവനJള�ച സ"ഭവത�'$" 11/8/95 ത�യത� മ$തല ആവല�ത�ക�രന വസത$വ�ല ത�മസമ�ണന$ള സ"ഗത�ക$

¶79

¶80

Crl.A.No.1624 of 2003

¶81

But from the above averments and factual input it is not clear what are the overt acts and the way in which the accused prevented PW.1 from enjoying the properties. There is also no whisper in the complaint that the alleged incident was taken place among the general public. Now let us see the evidence of PW.1. Deviating from the averments in the complaint he had deposed during the chief-examination itself, particularly, in original page No.4, it is stated:-

¶82

In page No.5 PW.1 has stated:-

¶83

Crl.A.No.1624 of 2003

¶84

¶85

Then it is asked by the prosecutor that:-

¶86

“പ@മ�ക$നത�'�%യ�ല പപത� എന$ പറഞ$ (Q)”

¶87

To the above question it is answered that:-

¶88

"എ%� ക$റവ കഴ$നവറ�യ$ന% നമ�ന' '�ന� കയ�ല '�ന� വസത$ ത�ര�ച+ പ�%�ക�നമ� എന� ഞങള ഒന$ ന'�കനട" എന� പപത� എനന�ട പറഞ$ ഭ�ഷണ�ന7%$ത�.(A)”

¶89

But in the deposition of PW.1-the de facto complainant, he

¶90

has no case that the accused abused him from the pathway as alleged in the complaint. In the deposition of PW.1 he had failed to prove the overt act of the accused towards the forcible eviction or dispossessing the de facto complainant from the property in question. So, according to me, the prosecution has miserably failed to prove the overt act of the accused committed by him in the alleged attempt of dispossessing the de facto complainant from the property. It is equally important to note that, with regard to the above allegation, the complaint as well as the deposition of PW.1 are

¶91

Crl.A.No.1624 of 2003

¶92

¶93

contradictory in nature and there is discrepancy in the evidence of PW.1. So, according to me, the evidences on record are not sufficient to attract Section 3(1)(v) of the SC/ST Act.

¶94

As I indicated earlier, in the deposition of PW.1, there is no whisper that he was called his caste name by the accused in view of the general public so as to insult him. In the decision reported in E.K.Nayanar Vs. Dr.M.A.Kuttappan [1997(1)KLJ 280], this Court has held “as stated earlier the words used in Sub Section (x) are not “in public place”, but “within public view” which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted.” In the present case also the available evidences are not sufficient to show that the accused called the name of the de facto complainant in a public place or within the public view. No evidence is adduced to show that the incident was occurred in a public place. No member of the public is

¶95

Crl.A.No.1624 of 2003

¶96

¶97

examined in the present case other than PW.2, who is enimical to the accused.

¶98

So, on a consideration of the facts and circumstances involved in the case, especially in the light of the above decision, I am of the view that, the offence under Section 3(I) (x) of the SC/ST Act is also not attracted against the accused in this case.

¶99

Another allegation against the appellant is that, he had committed the offence punishable under Section 3(1)(viii) of the SC/ST Act. I have already referred to the fact that, the whole prosecution allegation and the dispute between PW.1 and the accused arose connected with a civil dispute and a lease agreement entered into between PW.1 and the accused. PW.1 in his deposition particularly during his crossexamination had stated in an unequivocal language:-

¶100

“എ'�നകത�നര പപത� നക�%$ത നകസ�നലയ$" ഞ�ന പപത�നകത�നര നക�%$ത നകസ�നലയ$" വ�ധ�നകത�നര എ'�ക� പര�ത� ഒന$മ�ല].”

¶101

Crl.A.No.1624 of 2003

¶102

¶103

In spite of the above version of PW.1, the trial court proceeded to hold that the offence under Section 3(1)(viii) is attracted against the accused/appellant. I have also referred to the fact that Ext.P1 complaint was filed just four days prior to the date of compromise decree and judgment delivered in the suit filed at the instance of the de facto complainant-PW.1. There is no evidence that PW.1 has approached the police initially connected with the alleged incident. He had filed Ext.P1 complaint only on 20/5/1997. The filing of Ext.P1 complaint and the fact that the said complaint forwarded to the Police Station under Section 156(3) of Cr.P.C. were within the knowledge of PW.1 when he entered into a compromise with the accused in O.S.No.51 of 1997 resulting Exts.D2 and D3 decree and judgment. So, according to me, the evidences of PW.1 are not sufficient to inspire the confidence of the court. Though PW.1 claimed that the incident by which the accused attempted to dispossess PW.1 from the property in question and the alleged insult are made in the presence of certain

¶104

Crl.A.No.1624 of 2003

¶105

¶106

persons, the prosecution has chosen to examine only PW.2 who is in enimical term with the accused as evident by Ext.D4 judgment in C.C.No.95 of 1996 of the Judicial First Class Magistrate Court, Idukki. So, to support the case of PW.1 and the prosecution that the accused has filed false case against him, there is no other independent or documentary evidence. The evidences on record are not sufficient to show that the accused intentionally instituted any false or malicious or vexatious suit or criminal case or initiated any legal proceedings against the de facto complainant-PW.1 particularly when there was a serious civil dispute was pending. So, I am unable to sustain the finding and the conviction recorded by the trial court against the appellant for the offence under Section 3(1)(viii) of the SC/ST Act.

¶107

In the light of the above discussion and in view of the evidence and materials referred to above, according to me, the trial court is not justified in convicting the appellant for the offence under Section 3(1)(v), 3(1)(viii) and 3(1)(x) of the

¶108

Crl.A.No.1624 of 2003

¶109

¶110

SC/ST Act and accordingly the conviction of the trial court against the appellant for the above offences are set aside.

¶111

In the result, this appeal is allowed setting aside the judgment dated 29/8/2003 in S.C.No.19 of 2001 on the file of the court of the Sessions Judge, Thodupuzha and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty.

¶112

V.K.MOHANAN, JUDGE

¶113

skj

¶114

True copy

¶115

P.A. to Judge

Scaria,S/O.Ulahannan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Scaria,S/O.Ulahannan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Abraham @ Avarachan Vs Dy.Supdt of Police,Aluva

State of Kerala Vs Raju

Babu Vs State of Kerala

Anil Kumar Vs State of Kerala

Varkey Vs State of Kerala

Thulasi Das @ Eli Thulasi Vs State of Kerala