Allowed

Adv.P.T.Mathew v. State of Kerala

Kerala HC14 Dec 2017Crl.Rev.Pet/783/2013

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Kerala allowed the appeal against conviction for mischief under Section 427 IPC. The Court acquitted the petitioner, finding that key prosecution witnesses had not witnessed the incident, identification was unreliable, the complaint was filed with unexplained delay, and the accused was entitled to the benefit of doubt.

What did the court decide?

The petitioner is acquitted of the offence under Section 427 IPC. The conviction and sentence in the trial court and confirmed in appellate court stands set aside.

Adv.P.T.Mathew Vs State of Kerala — Cheating and Forgery | Kerala HC (2017)

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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.UBAID

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THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939

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Crl.Rev.Pet.No. 783 of 2013 (C)

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IN CRA 424/2012 of ADDL.D.C.(SPL.COURT FOR TRIAL FOR MARADU CASES) KOZHIKODE DATED 06-02-2013

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IN CC 42/2009 of J.M.F.C.-IV,KOZHIKODE

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REVISION PETITIONER(S)/APPELLANT/ACCUSED:

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ADV.P.T.MATHEW, AGED 63 YEARS, S/O.THOMAS, PLATHOTTAM VEEDU, AMBEDKAR COLONY ROAD, VENGERI AMSOM, KOZHIKODE TALUK.

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BY ADV. SRI.R.T.PRADEEP

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RESPONDENT(S)/RESPONDENT/STATE:

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STATE OF KERALA

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

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BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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- - - - Crl.R.P. No. 783 of 2013

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- - - - Dated this the 14^th day of December, 2017

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ORDER

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The revision petitioner herein is the first accused in C.C.No. 42 of 2009 of the Judicial First Class Magistrate Court-IV, Kozhikode. He and the third accused faced prosecution before the court below on the allegation that at about 7.00 p.m. on 15.07.2008, they trespassed into the property of the defacto complainant, Balachandran Nair, as part of a design hatched by them, they demolished the boundary wall of the property, and when the defacto complainant reached there, and questioned this act of the accused, he was assaulted by them. The Police submitted final report in court under Sections 143, 147, 148, 341, 323 and 427 read with Section 149 of the Indian Penal Code, against three accused, including the revision petitioner. The case against the second accused was split up and refiled when he remained consistently absent during trial.

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Crl.R.P. No. 783 of 2013

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The accused Nos. 1 and 3 appeared before

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the trial court, and pleaded not guilty to the charge framed against them under Sections 143, 147, 148, 323, 341 and 447 read with Section 149 IPC. The prosecution examined seven witnesses, and proved Exts.P1 to P8 documents in the trial court.

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The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. They did not adduce any oral evidence in defence. However, Ext. D1 document was marked on their side.

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On an appreciation of the evidence, the trial court found the accused Nos. 1 and 3 guilty under the different Sections except 148 and 323 IPC. On conviction, they were sentenced to undergo simple imprisonment for three months each under Section 143 IPC, simple imprisonment for six months each under Section 147 IPC, simple imprisonment for 15 days each under Section 341 read with Section 149 IPC, and simple imprisonment for six

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Crl.R.P. No. 783 of 2013

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months each under Section 427 read with Section 149 IPC. They were also directed to pay a compensation of 12000/-₹ to the complainant.

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Aggrieved by the judgment of conviction, the accused Nos. 1 and 3 approached the Court of Session, Kozhikode, with Crl.A.Nos. 417 of 2012 and 424 of 2012. In appeal, the learned Special Additional Sessions Judge (Marad Cases), Kozhikode, found the accused Nos. 1 and 3 not guilty under Sections 143, 147, and 341 IPC. Accordingly, the conviction and sentence under Sections 143, 147 and 341 was set aside in appeal. However, the appellate court confirmed the conviction under Section 427 IPC without the aid of Section 149 IPC. The appellate court also modified and reduced the substantive sentence. Accordingly, the jail sentence under Section 427 IPC was set aside, and a fine sentence of 7,500/- each was imposed under Section 427₹ IPC, by the common judgment dated 06.02.2003 in the two appeals. Now the first accused is before this Court in

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revision challenging the legality and propriety of the conviction and sentence against him on the ground that there is no legal evidence against him, and that the trial court wrongly convicted him without any legal evidence.

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Of the seven witnesses examined in the trial

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court, PW1 is the defacto complainant who lodged complaint in this case alleging mischief and assault, and Ext.P1 is the First Information Statement given by him. PW2 is only an attestor to the scene mahazar. PW3 and PW4 are the other material witnesses relied on by the prosecution. Of them, PW3 is the nephew of PW1. The alleged incident happened at or after 7.00 p.m.. Admittedly, the defacto complainant had not witnessed the alleged incident of mischief. According to him, he reached the spot of incident on getting information from PW3. When he reached there and questioned the accused, he was assaulted by the accused. But the trial court did not find the accused guilty under Section 323 IPC, and the conviction under Section 341 IPC

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stands set aside in appeal by the appellate court. So the scope of enquiry in this revision is only as regards the alleged mischief punishable under Section 427 IPC.

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PW3 gave evidence that he reached the

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scene of occurrence on getting information from one Babu and one Rajan. He stated this fact in cross examination. In examination in chief, he stated that he reached there at about 7.00 p.m. on getting information. At that time he saw the accused and some others at the property, being armed with weapons, and he also saw them demolishing the compound wall. The statements given by PW3 in cross examination will show that this witness had not actually witnessed the alleged demolition of compound wall. Regarding the assault also he has given evidence, but that part need not be now examined because the conviction under Sections 323 and 341 IPC stands set aside. When cross examined by the defence, he fairly conceded that he came to the scene on getting information from Babu and

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Rajan. This evidence gives an indication that PW3 had not in fact witnessed the alleged acts of mischief, and his statement is only on the basis of what Babu and Rajan told him. If so, that part of the evidence given by PW3 regarding mischief will have to be treated as hearsay evidence.

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The evidence of PW4 is that the incident happened in the night. PW3 has no case that he had seen PW4 anywhere there. According to PW3, the persons who actually witnessed the incident are Babu and Rajan. But none of them is seen examined by the prosecution. PW4 does not say how exactly he saw and identified the accused. He has no case that there was some sort of light there. He stated in cross examination that the incident happened in the night. There is nothing to show that there was any sort of light at the place of incident, or anywhere near the place of incident. If so, it must be explained how exactly PW4 saw and identified the different accused. Here, his evidence becomes suspicious.

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There is a very material aspect in this case. The alleged incident happened on 15.07.2008. But the complaint in this case was filed only on 20.07.2008. There is no explanation why PW1 waited for five days to file the complaint. When PW1 has no explanation for the delay in making complaint, the explanation given by PW3 cannot be accepted by the court. PW1 does not say why he waited till 20.07.2008 to make complaint. This also creates some doubt regarding the prosecution case.

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Thus, as discussed above, I find that PW3 had not probably witnessed the incident, and the evidence of PW4 cannot be accepted, because he does not say how he saw and identified the accused in the night. The delay of 5 days in making complaint stands not explained in this case. These are the areas where the prosecution case becomes doubtful. The benefit of this doubt must go to the accused. 11. The definite case of the accused is that the

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compound wall of the complainant was demolished in a

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mass action by the people of the locality when he put up the compound wall in such a way as to obstruct free flow of rain water, thus causing nuisance to the public. Anyway, those aspects need not be now examined because, even otherwise, the accused is entitled for the benefit of doubt by way of acquittal.

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In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Sections 427 IPC, and accordingly, he is acquitted of the said offences in revision. The conviction and sentence against the revision petitioner in C.C. No. 42 of 2009 of the trial court, confirmed in appeal by the Court of Session, Kozhikode, in Crl.A.No. 424 of 2012, will stand set aside.

Sd/-

P.UBAID

JUDGE

ds 16.12.2017

//True copy//

P.A. to Judge

Adv.P.T.Mathew v. State of Kerala

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Adv.P.T.Mathew v. State of Kerala

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