Allowed

Kuttappan Nair v. State of Kerala

Kerala HC6 Jun 2016Crl.Rev.Pet/1493/2006

Case brief

AI extract

What is this about?

In a criminal revision, the High Court held that the conviction under the Kerala Police Act was perverse due to unexplained contradictions between prosecution witnesses regarding the number of accused and the presence of an SI at the scene. The Court set aside the conviction, acquitted the appellant, and granted liberty.

What did the court decide?

The impugned judgments are set aside. The petitioner is acquitted and set at liberty. Bail bonds are cancelled.

Kuttappan Nair Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2016)

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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 ALEXANDER THOMAS

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MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938

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Crl.Rev.Pet.No.1493 of 2006 (B1)

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AGAINST THE JUDGMENT IN CRA 85/2003 of I ADDL. SESSIONS COURT, KOLLAM DATED 27-09-2005

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AGAINST THE JUDGMENT IN ST 1878/2001 of J.M.F.C.-III, PUNALUR DATED 23-12-2002

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REVISION PETITIONER/APPELLANT IN CRA/ACCUSED IN ST:

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KUTTAPPAN NAIR, AGED 49,

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S/O.NARAYANA PILLAI, THOUNATTIL PUTHEN VEEDU, NJARAKKADU MURI, THALAVOOR VILLAGE.

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BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY

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RESPONDENT/RESPONDENT IN CRA/COMPLAINANT-STATE:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, FOR THE SUB INSPECTOR OF POLICE, PUNALUR.

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R- BY PUBLIC PROSECUTOR SRI.P.V.ELIAS

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.R.P.No.1493 Of 2006

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Dated this the 6th day of June, 2016.

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O R D E R

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The revision petitioner/accused challenges the legality, correctness and propriety of the impugned conviction and sentence rendered as per the impugned judgment dated 23.12.2002 of the Judicial First Class Magistrate Court-III, Punalur, in Summary Trial, S.T.No.1878/2001 for the offence under Sec.51(a) of the Kerala Police Act, 1960, as confirmed by the impugned appellate judgment dated 27.9.2005 of the Court of I Additional Sessions Judge, Kollam, in Crl.A.No.85/2003. The matter arose out of a complaint filed by the complainant under Sec.51(a) of the Kerala Police Act, 1960. The brief of the complainant's case is that on 1.5.2001 at 3:30 a.m., in the early morning, the accused was found misbehaving in a disorderly manner at the KSRTC Junction, Punalur, and that PW-1 and party had found the accused was under the influence of alcohol and had taken him to Taluk

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Crl.R.P.No.1493 Of 2006

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Headquarters Hospital, Punalur, for medical examination and that the Doctor concerned, PW-3 had issued Ext.P-1 certificate. CW-4, Sub Inspector (PW-2) had laid the requisite complaint before the trial court as Petty Case No.331/2001, in which summary trial was conducted as per the impugned proceedings in S.T.No.1878/2001. After taking cognizance, the accused appeared on receipt of summons and he pleaded guilty and was enlarged on bail. Prosecution/complainant examined PWs 1 to 3 and had marked Ext.P-1. No defence evidence was adduced on behalf of the accused. After conclusion of the trial, the trial court rendered the impugned judgment finding that the petitioner is convicted for the offence under Sec.51(a) of the Kerala Police Act, 1960, which prescribes a minimum punishment of not less than 15 days rigorous imprisonment and fine which shall not be less than Rs.50/-. The trial court accordingly, sentenced the petitioner to undergo rigorous imprisonment for 15 days and to pay a fine of Rs.200/- in default of payment of fine it was ordered to undergo simple imprisonment for a further period of ten days. Being aggrieved by the conviction and sentence, the petitioner has preferred Crl.A.No.85/2003 before the aforesaid appellate Sessions Court concerned. The appellate court as per the impugned judgment

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Crl.R.P.No.1493 Of 2006

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rendered on 27.9.2005 had dismissed the appeal and thus confirmed the conviction and sentence rendered by the trial court. Aggrieved by the said conviction and sentence the accused has now preferred the instant revision petition by resort to the remedies conferred under Sec.379 and 401 of the Code of Criminal Procedure.

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Sri.Praveen K.Joy, learned counsel for the revision petitioner has submitted that the impugned conviction rendered by both the courts below is vitiated by gross perversity, impropriety and illegality on various grounds and that the impugned judgments of both the courts below are liable to be interfered by this Court by exercising the revisional powers conferred on this Court. Further, the learned counsel for the petitioner has argued on certain crucial aspects of the matter and contended that the depositions of both the prosecution witnesses will clearly bring out glaring inconsistencies and contradictions in their versions and that clearly shows that the incident would not have happened in the manner as suggested by the prosecution and may have occurred in some other manner which are totally suppressed by the prosecution and that these crucial material pieces of evidence have been totally ignored and blatantly overlooked by both the courts below in arriving at the impugned conviction and accordingly it is argued that

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Crl.R.P.No.1493 Of 2006

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the impugned judgment suffer from such perversity and illegality and are liable to be interfered by this revisional court, etc. The learned Public Prosecutor has also made necessary submissions on behalf of the prosecution.

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Heard Sri.Praveen K.Joy, learned counsel for the petitioner and the learned Prosecutor appearing on behalf of the respondent-State.

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PW-1 is the head constable who has deposed in his Chief examination that at around 3:30 a.m. in the early morning of 1.5.2001, he as Head Constable was in charge of the duties of the Sub Inspector of Police of that police station and had received a telephonic information in the police station that two security personnel of the KSRTC were involving in loud and noisy misbehaviour after being drunk, and that this incident was at the KSRTC bus stand, Punalur, and on getting the telephonic information, he proceeded to the KSRTC bus stand and had found the above two persons in a quarrelsome state and that the accused herein is one among the said two quarrelsome persons and both were arrested and the accused herein was taken to the Punalur Government Hospital for medical examination and medical examination was duly conducted, etc. However, it is to be noted that the specific version of PW-1 in his chief examination was that he had

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Crl.R.P.No.1493 Of 2006

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received telephonic information that two security personnel of the KSRTC were found behaving in a disorderly manner in the KSRTC bus stand and that when he had reached the scene of occurrence he had found the two said persons making loud and noisy utterances and that the petitioner herein is one among the two said persons and that both persons were arrested by him, etc., and that the accused was taken to the hospital for medical examination, etc. When the specific case of the main prosecution witness, PW-1, is to the effect that two persons were indulging in disorderly behaviour and that two persons including the petitioner were arrested, he has no explanation as to why no complaint was laid as against the other person concerned and as to why only one accused was proceeded against and as to why the present accused herein alone was subjected to medical examination and as to the reasons which prompted the Police to let off the other person from implication in the offence. No explanation, whatsoever, is coming either from PW-1 or PW-2 as to how only one person was proceeded. As a matter of fact PW-2 (S I of Police) has no case that two persons were so involved and he deposes only about the involvement of the present accused herein. PW-2 would depose that in the scene of occurrence he had found the accused herein indulging in the disorderly behaviour,

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Crl.R.P.No.1493 Of 2006

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etc. Therefore, the specific version of PW-1 is that the two security personnel of the KSRTC bus stand including the petitioner were behaving in a disorderly manner whereas the version given by PW-2 is that as if only one person alone, viz., accused herein, is involved in the offence concerned. This is a contradiction and serious divergence made in the versions given by PW-1 (Head Constable) and PW-2 (S I of Police). This glaring inconsistency and contradiction has not in any manner been explained by the prosecution so as to clearly bring focus regarding the veracity and truthfulness of the prosecution case. Therefore, this crucial aspect throws serious doubts and suspicion about the very credibility and believability of the prosecution case and in such situation, the contention of the accused that the incident would have happened not in the manner as suggested by the prosecution, but in some other manner, appears to be quite tenable and sustainable. These material and crucial aspects of the matter has been completely ignored and overlooked by both the courts below and therefore such shutting of those crucial and relevant material evidence in this case based on which the impugned conviction has been made, is highly perverse and unreasonable.

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Crl.R.P.No.1493 Of 2006

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There is yet another aspect in the matter. The specific case of PW-1 (Head Constable) is that when he received the telephone call at Punalur Police Station, on the early morning (3:30 a.m.) on 1.5.2001, he was the head constable who was actually in charge of the duties and responsibilities of the S I of Police at that station and that on receiving the said telephonic information, he had proceeded to the scene of occurrence, etc. In the chief examination, PW-1 has no case that, at that time or subsequently, the S I of Police had also accompanied him to the scene of occurrence. The original of the chief examination of PW-1 is not very decipherable or legible regarding this aspect. The relevant portion of the deposition in chief examination of PW-1 roughly reads as follows:-

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“vFkv.sF. tI-kv A-t\zj-Ww GÂ-¸n¨p.” [The S.I. of Police entrusted him (PW-1 Head Constable) with the investigation.] However, in the cross examination, he would say that the Sub Inspector of Police was also with him. Therefore, this is a major departure and divergence made in the version of PW-1 compared to his versions projected in the chief examination and cross examination. When the specific case of PW-1 was that, at the relevant time he was in charge of the duties of S.I. of Police of the station concerned it only stand to reason

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Crl.R.P.No.1493 Of 2006

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that it really implies that in the early morning of 3:30 a.m. the Sub Inspector of Police was obviously not present in the station and that PW-1, head constable of that station was in charge of the duties and responsibilities of the S.I. of Police of that station and therefore unless there are clear explanation given by PW-1 and PW-2 as to how the S.I. of Police had also reached the place of occurrence, etc, the above said versions given by the prosecution witnesses appears to be contradictory. PW-2 (S.I.of Police) would state that he had found the accused in the place of occurrence on 1.5.2001 at 3.30 a.m. in the morning in the KSRTC bus stand in Punalur. When the specific version of PW-1 was that he was fully in charge of the duties of S.I. of Police on the early morning on that day, in the absence of any cogent and proper explanation by PW-1 and PW-2 as to under what circumstances, PW-2 had also reached the scene of occurrence, the above said versions lack credibility and throws serious suspicion on their versions. Still further, PW-2 would further venture to state in his cross examination that there were four police officials in his police party who had reached the scene of occurrence. None of the other police officials concerned have been examined in this case. Further, PW-2 would state in his examination that about 50 persons were witnessing the incident in the place of

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Crl.R.P.No.1493 Of 2006

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occurrence concerned. Not even a single independent witness has been examined in this case. Therefore, all these crucial aspects have been completely overlooked and ignored by both the courts below while arriving at the impugned conviction. Moreover the specific version of PW-1 is that two KSRTC security officials, including the accused were misbehaving in a disorderly manner in the KSRTC Bus Stand. Not even a single employee of the KSRTC has been examined by the Prosecution and this casts serious suspecions and doubts about the very origin of the incidents as alleged by the Prosecution. All these aspects clearly throw light that the incident may not have happened in the manner as suggested by the prosecution and could have happened in some other manner and therefore there is no safe and proper basis to convict the petitioner for the offence under Sec.51 (a) of the Kerala Police Act, 1960 by overlooking and shutting out the aforestated crucial aspects of the matter. Therefore, the approach of both the courts below in shutting out these crucial aspects is nothing short of perversity and unreasonableness. In the light of above said aspects, the impugned conviction and sentence imposed on the petitioner as per the judgment of both the courts below are liable to be set aside and it is so ordered. Accordingly, the impugned judgments of both the courts below are set

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Crl.R.P.No.1493 Of 2006

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aside. The petitioner is acquitted of the offence and he is set at liberty.

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The bail bonds executed by the petitioner will stand cancelled.

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With these observations and directions, the Criminal Revision Petition stands allowed.

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bkn/avk

Kuttappan Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kuttappan Nair v. State of Kerala

Case brief

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