Allowed

Abdul Gafoor v. Sub Inspector of Police

Kerala HC9 Mar 2020Crl.Rev.Pet/2949/2004

Case brief

AI extract

What is this about?

In a criminal revision petition challenging conviction and sentence for offences under the IPC and Prevention of Damage to Public Property Act, the High Court acquitted the revision petitioners. The Court held there was zero evidence to prove their identity or involvement in the mischief causing damage to a bus, holding that the lower courts erroneously appreciated the evidence.

What did the court decide?

Conviction and sentence set aside; revision petitioners acquitted of offences under Sections 341 and 427 read with Section 34 IPC; bail bonds cancelled and petitioners set at liberty.

Abdul Gafoor Vs Sub Inspector of Police — Cheque Dishonour | Kerala HC (2020)

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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 N.ANIL KUMAR

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MONDAY, THE 09TH DAY OF MARCH 2020/19TH PHALGUNA, 1941

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Crl.Rev.Pet.No.2949 OF 2004(C)

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AGAINST THE JUDGMENT IN Crl.A.303/2003 DATED 04-08-2004 OF SESSIONS COURT, KOZHIKODE

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AGAINST THE JUDGMENT IN CC 438/2001 DATED 07-05-2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,THAMARASSERY

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REVISION PETITIONERS/APPELLANTS/ACCUSED 1 & 2:

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1 ABDUL GAFOOR, S/O.MOIDEEN, KURUVANGAD VEEDU, KAITHAPOYIL.

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2 P.K.ABBAS, S/O.MUHAMMED, PARACKAL VEEDU, KAITHAPOYIL.

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BY ADV. SRI.K.A.HASSAN

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RESPONDENTS/RESPONDENT/COMPLAINANT:

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1 SUB INSPECTOR OF POLICE, THAMARASSERY, KOZHIKODE.

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2 STATE OF KERALA.

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BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZE

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.2949 OF 2004

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..2..

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ORDER

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Revision petitioners 1 and 2 are accused Nos.1 and 2 respectively in C.C.No.438/2001 on the file of the Judicial First Class Magistrate Court-I, Thamarassery arising from Crime No.354/2000 of the Thamarassery Police Station for the offences punishable under Sections 143, 147, 148, 341 read with Section 149 of the Indian Penal Code and Section 3(2)(e) of the Prevention of Damage to Public Property Act.

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By judgment dated 07.05.2003, the learned Magistrate convicted accused Nos.1 and 2 for the offences punishable under Sections 341 and 427 read with Section 34 IPC and sentenced to undergo simple imprisonment for two years for the offence punishable under Section 427 of IPC and simple imprisonment for one month for the offence punishable under Section 341 of IPC respectively. The above sentences were ordered to run concurrently.

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Challenging the conviction and sentence, accused 1 and 2 preferred Crl.A.No.303/2003 before the Sessions Court, Kozhikode Division. By judgment dated 4.8.2004 the learned

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Crl.Rev.Pet.No.2949 OF 2004

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Sessions Judge allowed the appeal in part whereby the sentence was modified. Accordingly, the accused 1 and 2 were sentenced to pay a fine of Rs.5,000/- each in default of payment of fine to undergo simple imprisonment for a period of three months each for the offence punishable under Section 427 of IPC and sentenced to pay a fine of Rs.500/- each in default of payment of fine to undergo simple imprisonment for ten days each for the offence punishable under Section 341 of IPC.

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4. The prosecution case in brief is herein below:-

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On 06.12.2000 at 7.50 am, on the public road

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leading to Kozhikode-Wayanadu at Elikkad, accused 15 in number formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object to destroy public property consequent to the demolition of Babari Masjid, wrongfully restrained KSRTC bus driven by PW1 and pelted stone towards the bus and thereby the KSRTC sustained damage for an amount of Rs.1,000/-.

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Crl.Rev.Pet.No.2949 OF 2004

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..4..

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During the trial, PWs.1 to 7 were examined and marked Exts.P1 to P5 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313 of Cr.P.C. Their defence is one of total denial. After having heard both sides, the trial court acquitted all the other accused except A1 and A2 as indicated herein above. In appeal, the conviction was maintained. However, the sentence was modified.

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The learned counsel for the revision petitioners submitted that the trial court went wrong in appreciating the evidence of PW7, the Sub Inspector of Police, who was the person registered the case and investigated the offence. It was submitted that accused Nos.1 and 2 were not known to PWs.1 and 2, the bus driver and the conductor of the bus, earlier. According to the learned counsel for the revision petitioners, the dock identification made before conducting test identification parade in accordance with law in an offence relating to an unlawful assembly is totally unsustainable. It was further submitted that no evidence was adduced by PWs.1

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Crl.Rev.Pet.No.2949 OF 2004

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and 2 touching the identity of accused Nos.1 and 2 before the trial court.

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Heard Sri.K.A.Hassan, the learned counsel for the revision petitioners and Sri.M.S.Breeze, learned Public Prosecutor for the respondents.

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An assembly of five or more persons is designated as an “unlawful assembly” as defined under Section 141 of Indian Penal Code. PW7 who registered the case and investigated the case set the criminal law in motion alleging that accused 1 to 15 formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting. Evidently, the case is political in nature consequent to the demolition of Babari Masjid. More than 15 persons had participated in the occurrence. However, the trial court entered a finding that except A1 and A2, all others were not guilty for the offences alleged against them. However, A1 and A2 were convicted on the strength of the evidence adduced by PWs.1 and 2. On going through the oral evidence of PWs.1 and 2, there is nothing on record to show that PWs.1 and 2 identified

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..6..

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Crl.Rev.Pet.No.2949 OF 2004

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A1 and A2 before the trial court. Merely because, KSRTC bus sustained damages to the tune of Rs.1,000/-, it is not proper to award moral conviction when there was zero evidence against them. In this case, no evidence was adduced by the prosecution to prove that A1 and A2 had wrongfully restrained PWs.1 and 2 and caused mischief to the extent of Rs.1,000/as alleged by the prosecution. In the absence of reliable evidence, the only course available before this Court is to set aside the conviction and sentence imposed by the trial court as partly modified and confirmed by the appellate court. Both the trial court as well as the appellate court erroneously appreciated the evidence on record and imposed conviction and sentence against A1 and A2. Hence, the conviction and sentence imposed by the trial court as partly modified and confirmed by the appellate court stand set aside.

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In the result, the revision petition is allowed. The conviction and sentence imposed by the trial court as partly modified and confirmed by the appellate court are set aside. The revision petitioners 1 and 2/accused Nos.1 and 2 are

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Crl.Rev.Pet.No.2949 OF 2004

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acquitted for the offences under Sections 341 and 427 read with Section 34 IPC. Cancelling their bail bonds, this Court directs that they be set at liberty.

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Sd/-

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N.ANIL KUMAR, JUDGE

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skj

Abdul Gafoor v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Abdul Gafoor v. Sub Inspector of Police

Case brief

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