Kerala High Court
Puliyakuth Kunhayammu vs State Of Kerala on 12 June, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.960 OF 2005 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942
CRL.A.No.960 OF 2005
AGAINST THE JUDGMENT IN SC 284/2002 DATED 23-05-2005 OF
ADDITIONAL DISTRICT COURT (ADHOC), MANJERI
APPELLANTS/ACCUSED 1 AND 2:
1 PULIYAKUTH KUNHAYAMMU
S/O.SOOPI, VALAMBUR AMSOM, DESOM.
2 ABDUKURIKKAL, PATTIPPARAMBATH HOUSE
S/O.AVARANKURIKKAL,
VALAMBUR AMSOM DESOM.
BY ADVS.
SRI.T.H.ABDUL AZEEZ
SRI.K.J.THOMAS STANLEY
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.960 OF 2005 2
JUDGMENT
Dated this the 12th day of June 2020 The appellants are the accused in Sessions Case No.284 of 2002 on the file of the Additional Sessions Judge, Fast Track Court No. I (Adhoc), Manjeri. The above case is charge sheeted by the S.I. of Police, Perinthalmanna Police Station against the appellants alleging offences punishable under Sections 447, 427, and 286 read with Section 34 IPC and Section 3 of the Explosive Substance Act.
2. The prosecution case is that at about 2 P.M., on 5.8.2000, the accused in this case in furtherance of their common intention to cause damages to the defacto complainant's house, due to the previous enmity in connection with a property dispute, criminally trespassed into the partially constructed house and blasted explosive substance. The further case of the prosecution is that consequently, the house's four walls were damaged, resulting in loss to the tune of Rs.50,000/-.
3. To substantiate the case, the prosecution examined PW1 to PW10. Exts.P1 to P14 are the exhibits.
4. On going through the evidence and the documents, the trial court found that the accused committed the offences CRL.A.No.960 OF 2005 3 punishable under Section 447 and Section 3 of the Explosive Substance Act. The accused are sentenced to undergo rigorous imprisonment for two months under Section 447 Cr.P.C. The accused are also directed to undergo rigorous imprisonment for three years and to pay fine of Rs.30,000/- each under Section 3 of the Explosive Substance Act. In default of payment fine, the accused are directed to undergo imprisonment for two years. If the fine is paid, there was a direction to pay Rs.50,000/- to the property owner. Aggrieved by the conviction and sentence, this Crl. Appeal is filed.
5. Altogether ten witnesses were examined on the side of the prosecution. The prosecution witness No.1 is the Village Officer through whom Ext.P1 sketch is marked. PW2 is the scene mahazar witness through whom Ext.P2 scene mahazar is marked. PW3 is the defacto complainant. PW4 and PW5 are neighbours of PW3. PW6 is the Head Constable who recorded Ext.P6 FIR. PW7 is the Sub Inspector of Police who investigated this case. PW8 is the Scientific Assistant who collected remnants of the explosives substances from the house's premises under construction. PW9 is the Circle Inspector who conducted the further investigation in this case. PW10 is the Additional District Magistrate through whom Ext.P14 sanction certificate is marked. CRL.A.No.960 OF 2005 4
6. Heard the learned counsel for the appellants and the learned Public Prosecutor.
7. The learned counsel for the appellants submitted that there is absolutely no evidence, in this case, to connect the appellants in this case. No witnesses deposed that the accused trespassed into the property, and no witnesses deposed that the accused committed any offence under Section 3 of the Explosive Substance Act. Therefore, the counsel submitted that there is nil evidence in this case to convict the appellants.
8. The learned Public Prosecutor submitted that it is a fact that there is no direct evidence in this case. But according to the learned Public Prosecutor, there is a motive to the appellants to attack the accused. Moreover, one of the accused is conducting a quarry near the place of occurrence. Therefore the court can safely conclude that the accused committed the offence.
9. After hearing both sides, the point for consideration is whether there is any legal evidence to convict the accused under Section 447 IPC and Section 3 of the Explosive Substance Act.
10. Even if the entire evidence adduced by the prosecution is accepted, there is no direct evidence to connect the appellants with the incident. This part of the fact is conceded by the prosecutor. The prosecutor submitted that there is a strong CRL.A.No.960 OF 2005 5 motive alleged against the accused in this case. Even if there is a motive, there cannot be any conviction against the appellants without any corroborating evidence. The motive alleged is that there is a civil dispute pending between the father of the 1 st accused and the de facto complainant, in which the defacto complainant succeeded. An appeal is also pending. I am surprised to see; the lower court convicted the accused solely because of this motive. There is absolutely no evidence to connect the appellants in this case to the alleged incident. It is a fact that an incident happened, which is evident from Ext.P2 scene mahazar and the oral evidence of the other witnesses. There is no other evidence that the accused committed the offence. Simply because the incident is proved, the accused cannot be convicted. As I stated earlier, simply because a motive is proved, there cannot be a conviction in a criminal case.
11. In addition to all these, the trial court convicted the accused under Section 447 IPC and Section 3 of the Explosive Substance Act. Section 447 IPC says about the punishment for criminal trespass. The criminal trespass defined in Section 441 IPC. Section 441 IPC says whoever enters into or upon the property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in CRL.A.No.960 OF 2005 6 possession of such property or having lawfully entered into or upon such property, unlawfully, remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass." No prosecution witness has got a case that the appellants, in this case, committed criminal trespass. The only evidence adduced by the prosecution is that there is a motive to the accused against the defacto complainant. Even if the prosecution can prove the motive without any corroborating evidence, there cannot be a conviction under Section 447 IPC. Moreover, the conviction under Section 3 of the Explosive Substance Act is also not maintainable. Section 3 of the Explosive Substance Act deals with the punishment for causing an explosion likely to endanger life or property. Section 7 of the Explosive Substance Act, 1908, says that no court shall proceed to the trial of any person for an offence against this Act except with the District Magistrate's consent. When Section 7 of the Act clearly says that only the District Magistrate can give consent for prosecution, the Additional Magistrate cannot issue such a consent order. This point is considered by this Court and the Apex Court in Nadukandy Bijukumar & others v. State of Kerala and others (2018(3) KHC 839 and State of M.P v. CRL.A.No.960 OF 2005 7 Bhupendra Singh (2000(1) SCC 555). Therefore, the prosecution under Section 3 of the Explosive Substance Act is also not maintainable.
Hence this appeal is allowed. The conviction and sentence imposed on the appellants as per the judgment dated 23.5.2005 in S.C.No.284/2002 on the file of the Additional Sessions Judge, Fast Track Court No.I, (Adhoc), Manjeri is set aside. The appellants are set at liberty. The bail bond, if any, executed by the appellants is canceled.
Sd/-
P.V.KUNHIKRISHNAN JUDGE ab