Partly allowed

C.P.Ali v. State

Kerala HC17 Jun 2022CRL.A/1666/2007

Case brief

AI extract

What is this about?

This Criminal Appeal by four forest timber offenders against conviction for unlawful assembly, hurt, and mischief. High Court set aside conviction for mischief to jeep due to lack of evidence linking appellants to specific acts but confirmed conviction on riot and hurt charges, altering sentences to fines.

What did the court decide?

Conviction and sentence under PDPP Act set aside and acquittal granted; conviction on IPC charges confirmed but sentence altered from imprisonment to fine.

C.P.Ali Vs State — Cheque Dishonour | Kerala HC (2022)

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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.G. AJITHKUMAR

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FRIDAY, THE 17^TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944

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CRL.A NO.1666 OF 2007

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AGAINST THE CONVICTION AND SENTENCE IMPOSED IN SESSIONS CASE NO.98 OF 2002 OF ADDITIONAL SESSIONS JUDGE(ADHOC)-II, KALPETTA

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APPELLANTS/ACCUSED:

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1 C.P.ALI AGED 44 YEARS,S/O.MOIDU, CHOLAPURATH, PUTHOOR P.O., KOTTAKKAL, MALAPPURAM DISTRICT

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2 K.M.ABDUL AZEES AGED 50 YEARS S/O.MUHAMMED, PUTHUR P.O., KOTTAKKAL, MALAPPURAM DISTRICT

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3 C.K.JANARDHARAN AGED 56 YEARS S/O.KUNDALAKUMARI, THRISSELERI, MALAPPURAM DISTRICT

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4 SIVADASAN AGED 49 YEARS S/O.NARAYANAN, PUTHUR.P.O., KOTTAKKAL, MALAPPURAM DISTRICT

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BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH

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RESPONDENT/COMPLAINANT:

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STATE REPRESNTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM

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SMT MAYA M.N- P.P

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THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 14.06.2022, THE COURT ON 17.06.2022 DELIVERED THE FOLLOWING:

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Crl.Appeal.No.1666 of 2007

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P.G. AJITHKUMAR, J

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Crl.Appeal No. 1666 of 2007

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Dated this the 17^th day of June, 2022

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JUDGMENT

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This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973.

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The appellants were accused Nos.1 to 4 in S.C.No.98 of 2002 before the Additional Sessions Judge (Adhoc)-II, Kalpetta. They along with 10 others were charged by the Circle Inspector of Police, Mananthavady, for the offences punishable under Sections 143, 147, 353, 332 and 395 read with Section 149 of the Indian Penal Code, 1860 and Section 3(1) of the Prevention of Damages to Public Property Act, 1984. The allegations against them are that at about 7.30 a.m on 06.04.2000, they after forming themselves into an unlawful assembly, in prosecution of their common object, assaulted PW1 to 4, who are the forest officials on duty at the road near Vattoli Estate in Periya Village and took away two lorries loaded with timber, which were under the surveillance of the said forest officials. The

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accused pulled down PW1 to 4 from the jeep of the Forest Department causing them hurt and thereby caused obstruction to their public duty. The accused also deflated three tyres of the jeep and tore its front side seat, thereby committed mischief in respect of the public property.

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Trees standing on the property in the Vattoli Estate were cut and the timber was loaded in two lorries for being transported away. The forest officials saying that trees were illegally cut and removed restrained the lorries. PWs1 to 4 were deputed for guarding the lorries. While so, the accused persons allegedly had done the aforesaid acts with a view to drive away the lorries loaded with timber. PWs1 to 4 went to the District Hospital for treatment. On knowing the incident, PW11, the Divisional Forest Officer, North Wayanad, reached the place of occurrence. She had lodged the first information statement, on the basis of the details gathered by her and PW12 registered the crime as per Ext.P10(a). Ext.P10 is the first information statement. PW13 took over the investigation. He was the Sub Inspector of Police, Mananthavady Police Station. It was PW14, the Circle

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Inspector of Police, who laid the charge.

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The learned Sessions Judge tried the accused, except accused No.5, 6, 8, 13 and 14, who were then absconding. The charge for offences punishable under Section 143, 147, 332, 353, 395 read with Section 149 of the I.P.C. and Section 3(1) of PDPP Act was framed against the accused. At trial, PW1 to 14 were examined and Exts.P1 to P12 were marked on the side of the prosecution. In the 313 examination, the accused had denied the evidence against them. Their case was one of total denial. Accused produced Exts.D1 to D3. The learned Sessions Judge, after evaluating the evidence in detail, found accused Nos.1 to 4, who are the appellants, alone guilty of the offence punishable under Sections 143, 147 and 323 read with Section 149 of the I.P.C. and Section 3(1) of the PDPP Act.

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The learned counsel appearing for the appellants would submit that for the very reason of acquitting the appellants of the offence under Section 395 of the I.P.C on the ground that they did not do any illegal act, no conviction for an unlawful assembly could be possible. Regarding

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conviction for the offence under Section 323 of the I.P.C. the learned counsel vehemently contended that without even an iota of evidence to prove infliction of any injury or bodily infirmity to any one among PWs1 to 4, they were convicted and therefore, it is illegal.

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As regards the alleged mischief caused to the jeep of the Forest Department, he contends that evidence is too scanty to find involvement of any of the appellants. The learned counsel accordingly seeks to set aside the said finding as well.

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The learned Public Prosecutor, on the other hand, would submit that even in spite of the finding that there was nothing illegal in the appellants' attempt to take away the lorries, in the light of Ext.D1-no objection certificate and the admissions made by PW11, the Divisional Forest Officer, the accused have no business of taking away the lorries forcibly and to cause hurt to the officials. That was a highhanded act certainly inviting punishment for the offences, for which the learned Sessions Judge, found them guilty. The learned Public Prosecutor would contend that evidence of PWs1 to 4

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is cogent enough to find involvement of the appellants in the offence and their oral testimony, coupled with the evidence tendered by PW10, the Doctor, the said charges are proved. The learned Prosecutor would concede that PWs1 to 4 did not say as to who among the appellants did the mischief of causing damage to the jeep, but she contends that their evidence certainly would prove, especially in the light of the observations in Ext.P6 scene mahazar, that the jeep was damaged.

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PWs1 to 4 deposed in court almost in tandem with respect to the alleged incident. They were on duty guarding the lorries loaded with timber for avoiding taking away the same by anyone. They were sitting in the Department jeep bearing Registration Number KL-12/1560. It was at that time, that the appellants, who are accused Nos.1 to 4 along with a group of persons, approached and asked them to move away. They did not oblige and therefore, the accused pulled them out of the jeep. The jeep was pushed aside and the lorries were tried to be driven away. PWs1 to 4 identified the appellants alone before the court. They deposed that

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they knew the appellants even before. Of course, on the basis of their statements, the remaining accused were also implicated in the case. But these witnesses failed to identify any of them before the court. To that extent, their evidence may be said to be contradictory. But there is absolutely nothing in evidence to show that PWs1 to 4 knew any of the accused other than the appellants before. In such a circumstance, failure of PWs1 to 4 to identify other accused shall not be a reason to disbelieve them in regard to their identification of the appellants before the court.

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The learned counsel appearing for the appellants contended that in the absence of stating about specific overt acts of each of the persons who participated in the commission of the crime, no conviction of any of the members of the so-called unlawful assembly can be entered into. A few more inconsistencies also were pointed out by the learned counsel and canvassed for discarding the prosecution case. The inconsistencies pointed out are that the version of PW11 regarding the presence of PWs1 to 4 at the time when she reached the spot is contradictory. While

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Ext.P10 was termed as the first information statement, the version of PW1 is that he informed in police even before. It is therefore contended that genesis of Ext.P10 gets shaky and the defence case that it is a foisted case and the forest officials are the real culprits is strengthened.

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The incident occurred at about 7.30 a.m on 06.04.2000. PW11 had submitted Ext.P10 complaint to police at 12.30 p.m. As could be seen from Exhibits P7, P8 and P9, PWs 2, 3 and 4 were examined by PW10 Doctor at the District Hospital, Mananthavadi from 1.40 p.m onwards. While examined in Court, PWs 1, 2, 3 and 4 deposed regarding the incident with cohesion. Their oral testimonies with respect to the incident and involvement of the appellants are devoid of any serious inconsistency.

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It is not in evidence as to when PW1 informed about the incident to police. What is stated is that his statement was recorded by the police, but no signature was taken in it. So the probability is that he deposed about the statement recorded by the police under Section 161 of the Code. Therefore, it cannot be said that even before Ext.P10,

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any information or complaint necessitating registration of a crime was received by police.

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It has come out that following the incident, the police party came to the spot and prevented the assailants from taking away the lorries loaded with timber. Regarding the place where the lorries were located, an inconsistency between the versions PW11 and the others was pointed out. While PW11 stated that lorries were near the gate of the estate, the others stated that the lorries were taken some distance from the estate. It has come out that the lorries were moved ahead from where those were parked. Nobody has a case that lorries were taken away by the assailants from the vicinity. Therefore the so-called discrepancy is only in the manner in which the fact was described and it is not a material inconsistency.

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When the oral testimonies of PWs 1 to 4 agree each other and are devoid of any inconsistencies with reference to the material particulars and the facts stated by them in court get corroboration from the attending circumstances including Exts.P7 to P10, there is no reason to

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disbelieve them. As regards the facts that such an incident occurred, PWs 1 to 4 went to the District hospital, Mananthavadi, where they took treatment and soon an investigation regarding the incident ensued are beyond challenge. Taking all such evidence and circumstances into consideration it can only be held that the learned Sessions Judge rightly found that there occurred such an incident where the appellants had involved.

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In the light of the admission of PW11 that she had issued Ext.D1-No Objection Certificate, the learned Sessions Judge held that the attempt made to take away the lorries could not be said to be an illegal activity. That finding is relied upon by the learned counsel appearing for the appellant to contend that no offence or unlawful assembly can be attributed to the appellants. It is contended that there was no attempt from the part of the appellants to overawe any authority or resist the execution of any law and as such, the assembly of them along with a few others cannot be said unlawful.

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The third clause of Section 141 of the IPC is to

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the effect that if an assembly of 5 or more persons had the common object of committing any offence, that assembly

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becomes unlawful. The learned counsel immediately contended that there is no evidence to prove infliction of hurt to PWs 1 to 4. It is urged that although PWs1 to 4 stated that they sustained injuries, there is no medical evidence to support, and therefore the finding of the Sessions Judge in this regard is wrong, and if so the charge for unlawful assembly also fails.

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Section 319 of the I.P.C defines hurt. Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. In Exts. P7, P8 and P9 which were issued relating to PWs 2, 3 and 4 by PW10, the Doctor, no external injury has been stated. Pain and myalgia alone were noticed. During cross examination PW10 stated that pain can be a pretension. Pointing out those aspects, it has been contended that there is no proof for sustaining of hurt by any of the said witnesses.

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PWs 1 to 4 stated that they were pulled down

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from the jeep and thereafter the jeep was pushed aside. It is

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their version that in that course, they sustained bodily pain and bruises. Of course, the Doctor did not notice any external injury, PW11 deposed in court that when she reached the spot, the forest guards were having bruises on their body. Since no serious external injuries were noticed by the Doctor, the infirmities that might have caused in the brawl might not be serious to be noticed. PW10 was not asked whether he ascertained on an examination of PWs 2 to 4 as to whether the pain they complained of was a pretention. PWs 1 to 4 categorically deposed in court that they suffered pain and bodily infirmities in the incident. They stated the same before the doctor without there having much time gap. There is no reason to disbelieve the injured, PWs 1 to 4. Though they did not sustain any visible bodily injuries, it stands proved that they suffered pain and bodily infirmities as a result of the assault on them by the appellants and others along with them. In view of that matter, the finding of the trial court that the appellants have committed the offence punishable under Section 143, 147, and 323 read with 149 of the IPC does not suffer from any

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infirmity or illegality.

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In order to sustain an offence under Section 3(1) of the PDPP Act, the prosecution is bound to prove the commission of mischief to the public property by the accused. Of course, PWs 1 to 4 deposed that 3 tyres of the department jeep were deflated and its front seat was torn. Deflation was allegedly by pricking the tyres. Undoubtedly, some weapon or implement should be used if tyre is to be punctured. Likewise, some implement is necessary for tearing of the seat cover. None of the witnesses stated that any one of the accused had a weapon with him. When specific questions were put, no witness had answered that any of the accused was carrying a weapon. Of course, they stated that it was the accused persons who pushed the jeep aside for giving way to the lorries. They made vague statements that the accused had deflated the tyres and torn the seat. But it has not been stated who among the accused did so and using what implement it was so done. On a thorough analysis of the evidence, it is not able to say that any of the witnesses claimed to have seen the accused

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causing damage to the jeep. When PW6, the Assistant Motor Vehicle Inspector, inspected the vehicle on 10.04.2000, the

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seat of the jeep was found torn resulting damage of Rs.500/-. Ext.P3 is the report prepared by PW6. In Ext.P6 Scene Mahazar, PW13 noticed that three tyres of the jeep were found deflated and the front side seat was torn. No mark of piercing in the tyres was noticed. Ext.P6 was prepared on the same day. i.e. 06.04.2000. From the said evidence, it may be able to say that damage to a tune of Rs.500/- was caused to the department jeep bearing registration No.KL-12/1560. The evidence adduced by the prosecution does not prove beyond doubt that it was the appellants who had caused damage to the jeep.

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In the said circumstances, I am of the view that evidence is lacking to find that the appellant or any other member of the assembly had caused damage to the jeep. Therefore the conviction of the appellants for the offence under Section 3(1) of the PDPP Act is unsustainable in law and the same is set aside.

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Appellants were sentenced to undergo simple

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imprisonments for two weeks, two months and one month respectively under Sections 143, 147 and 323 of the I.P.C.

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The incident occurred 22 years before. The appellants had undergone the trauma of facing the trial and other proceedings all throughout. They have their own justification for attempting to take away the lorries loaded with timber. In that course, they, at any rate, should not have committed any offence. Considering the mitigating circumstances as aforesaid, I am of the view that incarceration of the appellant can be avoided. Imposing of fine alone will satisfy the interest of justice.

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In the result, the appeal is allowed in part. Conviction and sentence of the appellants under Section 3(1) of the PDPP are set aside and they are acquitted of that offence. While confirming the conviction of the appellants under Sections 143, 147 and 323 read with 149 of the IPC, the sentence is altered to one of fine. Each of the appellants is sentenced to pay a fine of Rs.5,000/- under Section 143 of the IPC, Rs.10,000/- under Section 147 of the IPC and Rs.1000/- under Section 323 of the IPC. In default of

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payment of the fine, each of the appellants has to undergo simple imprisonment for 15 days, one month and 15 days

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against each of such fine amounts.

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Sd/-

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P.G. AJITHKUMAR JUDGE

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C.P.Ali v. State

Case brief

What is this about?

What did the court decide?

C.P.Ali v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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