Kerala High Court
Asst.S.I.Of Police vs Saidumuhammed on 17 March, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
CRL.A.No.1400 OF 2005
AGAINST THE JUDGMENT IN CC 39/2001 DATED 03-05-2005 OF
JUDICIAL MAGISTRATE OF FIRST CLASS,ADIMALY
APPELLANT/COMPLAINANT:
ASST.S.I.OF POLICE,
ADIMALY, REP. BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA.
BY ADV. SRI. SUMODH. P.N., PUBLIC PROSECUTOR
RESPONDENTS/ACCUSED:
1 SAIDUMUHAMMED,
S/O.MUHAMMADU
VILAKKATHU VEEDU, PAIMATTAM KARA,
KUTTAMANGALAM VILLAGE.
2 T.B.KUNJUMON, S/O.BAKKAR
THOLAYIL VEEDU, VALARA KARA, MANNAMKANDAM
VILLAGE.
3 MUHAMMADU, S/O.MAKKAR
VADAKKEKARA VEEDU, SELLIAMPARA KARA,
VELLATHOOVAL VILLAGE.
4 ALIKUNJU, S/O.SAINUDEEN
CHATHANKOTTU VEEDU, SELLIAMPARA KARA,
VELLATHOOVAL VILLAGE.
5 DAISON C.MATHEW, S/O.MATHEW
CHELLIKUNNEL VEEDU, NADUKANI KARA, KEERAMPARA
VILLAGE.
Crl.Appeal No.1400 of 2005
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6 ABDULSALAM, S/O.MAIDEEN
PLAKKUNNEL VEEDU, IRUMPUPALAM, MANNAMKANDAM
VILLAGE.
7 NAUSHAD, S/O.MEERAN
MOOLETHOTTIYIL VEEDU, SELLIAMPARAKARA,
VELLATHOOVAL VILLAGE.
8 ALIYAR K.M., S/O.MAIDEEN KAVANATTU VEEDU
VALARA KARA, MANNAMKANDAM VILLAGE.
9 T.E.SHIHABUDEEN, S/O.IBRAHIM
THODUMALIL VEEDU, VALARA KARA,MANNAMKANDAM
VILLAGE
10 P.H.KUNJUMON, VARIKKATTU VEEDU
VALARA KARA, MANNAM KANDAM VILLAGE.
11 P.M.BASHEER, S/O.MUHAMMED
PAREKATTIL VEEDU, VALARA KARA, MANNAMKANDAM
VILLAGE.
12 SHAJI, S/O.DEVASSIA
NEDUMPURAMVEEDU, NADUKANIKARA, KEERAMPARA
VILLAGE.
13 IBRAHIM N.S., S/O.SUPI N.
NATTIKALLINKAL VEEDU, MULLARINGADU KARA,
VANNAPPURAM VILLAGE.
14 T.M.SEENA, D/O.MAKKAR
THENGUMPURAM VEEDU, SELLIAMPARA KARA,
VELLATHOOVAL VILLAGE.
15 SUBAIR, S/O.MAMMUKUNJU
KALARTHARA VEEDU, ANAVIRATTY KARA, ANAVIRATTY
VILLAGE.
16 VENUGOPALAN, S/O.THANKAPPAN
PLACHERIYIL VEEDU, IRUMPUPALAM,VAARA KARA,
MANNAMKANDAM VILLAGE.
Crl.Appeal No.1400 of 2005
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17 SATHYAN, S/O.AYYAPPANKUTTY
POLLAPPILLIYIL VEEDU, IRUMPUPALAM, VAARA KARA,
MANNAMKANDAM VILLAGE.
18 LETHA, D/O.VALSA, MOLATHU VEEDU
KALLARKUTTY KARA, VELLATHOOVAL VILLAGE.
19 C.M.GOMATHY, W/O.DEVARAJAN
THOLATHU VEEDU, MACHIPLAVU KARA, MANNAMKANDAM
VILLAGE.
20 SHEELA PATHROSE, D/O.PATHROSE
PARACKAL VEEDU, ADIMALY, MACHIPLAVUKARA,
MANNAMKANDAM VILLAGE.
21 BENOY, S/O.KUNJU
KUNNATHU VEEDU, MACHIPLAVUKARA, MANNAMKANDAM
VILLAGE.
22 JOHNY, S/O.KURIAKOSE
NEDUMTHOTTATHIL VEEDU, ADIMALI, MACHIPLAVUKARA,
MANNAMKANDAM VILLAGE.
23 SANTHOSH MATHEW, S/O.MATHEW
PAVARKUZHIYIL VEEDU, VENGALLOOR KARA,
KUMARAMANGALAM VILLAGE(SPLIT UP).
24 BENNY SEBASTIAN, S/O.SEBASTIAN
KOTTEKAKATHU VEEDU, ADIMALY, MANNAMKANDAM
VILLAGE.
25 EMILY DEVASSIA, D/O.DEVASSIA
PARACKAL VEEDU, ADIMALY, MANNAMKANDAM VILLAGE.
26 MINI PAULOSE, D/O.POULOSE
ERAKKATHIL VEEDU, 12TH MILE BHAGOM, VALARA,
ADIMALY, MANNAMKANDAM VILLAGE.
R1-4, R6-11, R13, R15, R17-22, R24-26 BY ADV.
SRI.K.BALACHANDRAN MANGALATH
R5, R12 BY ADV. SRI.PEEYUS A.KOTTAM
Crl.Appeal No.1400 of 2005
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R14 BY ADV. SRI.SEBASTIAN JOSEPH
(KURISUMMOOTTIL)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-
03-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal No.1400 of 2005
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Dated this the 17th day of March, 2020
J U D G M E N T
The appellant is the State challenging acquittal of some of the accused in C.C.No.39/2001 on the file of Judicial First Class Magistrate Court, Adimaly and also the quantum of sentence imposed on some of the accused who were found guilty of offences punishable under Sections 341 and 427 of Indian Penal Code(for short, 'IPC')
2. The case was charge sheeted by PW5, Assistant Sub Inspector of Police, Admali on the allegation that all the accused 26 in number after having formed themselves into unlawful assembly on 10.03.2000 at 6 am came to the public road in N.H.49, Chattupara in front of the Eastern Condement Company, Adimaly armed with deadly weapons like sticks etc. and with the knowledge that each of them was member of unlawful assembly Crl.Appeal No.1400 of 2005 :-6-:
with the common object and wrongfully restrained the lorry bearing registration No.KL-6/7790 owned by the Eastern Condement Company and KL-1/1818 lorry owned by Pavalam Company and committed mischief by deflating 12 tyres of both the vehicles causing a loss of Rs.1,00,000/- to the companies and further abused and threatened PW3, the lorry driver of KL-6/7790 with death.
3. Upon the motion of PW3 who lodged Ext.P1 First Information Statement to PW4, Head Constable of Police, Adimaly, Ext.P2 crime was registered against all the accused persons for offences punishable under Sections 143, 147, 148, 341, 249(b), 506(II) and 427 read with Section 149 of IPC and the case was investigated by PW5. Scene mahazar was prepared and witnesses were also questioned. After completing investigation, PW5 laid final report against all the accused. Crl.Appeal No.1400 of 2005
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4. On the accused denying charges framed against them for offences punishable under Sections 143, 147, 148, 341, 249(b), 506(II), 427 read with Section 149 of IPC, trial commenced in the Court below and PWs.1 to 5 were examined and Exts.P1 to P3 were marked. While the accused were questioned under Section 313 Cr.P.C., they denied having been the participants of the assembly and claimed that this was one of the many false cases brought against them by the Company to see that they were removed from the service of the management.
5. PW2, the driver of KL-1/1818 lorry owned by Pavalam Company turned hostile without supporting the prosecution case to any extent. The only loyal witnesses are PW1, cleaner and PW3, the lorry driver of KL-6/7790 owned by the Eastern Condement Company. After evaluating the testimonies of these two witnesses, the Court below was of the opinion Crl.Appeal No.1400 of 2005 :-8-:
that identity of the accused Nos.4, 8 to 22, 24 to 26 was not proved and accordingly, acquitted them of the offences with which they were charged.
6. On further analysis of evidence, the trial court found that the offence of unlawful assembly was not proved against any of the accused at all since the accused were the striking workers of the Company having every right under law to assemble and protest against the lockout declared by the Company. The accused were therefore absolved of offence of forming unlawful assembly and related offences. It was further held that the alleged conduct of using abusive words and putting PW3 de facto complainant to criminal intimidation was also not proved. Ultimately, the court below found A1 to A7 guilty of offence punishable under Section 341 of IPC and sentenced them to pay fine of Rs.500/-
each with default sentence. A2, A6 and A7 were Crl.Appeal No.1400 of 2005 :-9-:
found guilty of offence punishable under Section 427 IPC and sentenced them to pay fine of Rs.1,000/- each with default sentence. The conviction and sentence for offences punishable under Sections 341 and 427 of IPC are not under challenge at the instance of the offenders. The State is aggrieved by the inadequacy of sentence imposed under Sections 341 and 427 IPC. The order of acquittal of accused Nos.4, 8, 22, 24 to 26 is challenged in this appeal, contending that the court below did not correctly appreciate the evidence which connected these accused with the offences in question.
7. Among the respondents/accused, 23rd respondent was reported dead. Respondents 5 and 12 are represented by a counsel. I have heard the learned Public Prosecutor as well as the learned counsel for respondents 5 and 12.Crl.Appeal No.1400 of 2005
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8. It is contended by the learned Public Prosecutor that the sentence imposed on A1 to A7 is quite inadequate and it ought to be increased taking into account the gravity of offences committed. It was further argued that the evidence on record justified reversal of order of acquittal and therefore those acquitted are to be found guilty and sufficiently sentenced for the offences with each of them are charged.
9. After hearing both sides, I am of the opinion that either the impugned order of acquittal or the quantum of sentence imposed does not require any interference, having regard to the nature and reliability of evidence adduced and brought on record by the prosecution. The incident on 10.3.2000 at 6 a.m. was in NH-49 in Chattupara right in front of Eastern Company. It is an admitted fact that the Company declared lockout and Crl.Appeal No.1400 of 2005 :-11-:
the workers of the Company went on strike. The prosecution allegation is that when two loaded lorries were about to enter into the Company premises, the accused person proceeded forming unlawful assembly and deflated 12 tyres of the lorries, causing mischief to the tune of Rs.1 lakh, after wrongfully restraining the vehicles and lorry drivers. Other allegations of causing threat and using abusive language were also made.
10. On re-appreciation of evidence, I do not find that allegations as to formation of unlawful assembly, use of abusive language and criminal intimidation were proved. The court below rightly held that the workers of the Company had legal right to form assembly and participate in the strike and under no circumstances, such assembly could be termed as unlawful assembly. PW1-cleaner nor PW3-lorry driver could prove the participants Crl.Appeal No.1400 of 2005 :-12-:
in the strike to be members of the unlawful assembly or having committed offences with which they were charged. It was pointed out by respondents 5 and 12 that the accused were arrested at different points of time and that too, after a long interval since the date of occurrence. Anyway, the prosecution has not produced any records to prove either the arrest or the dates of the respective arrest of the accused. There is no evidence to prove that Pws.1 and 3 who are the two supportive witnesses had previous acquaintance with the accused who were acquitted. Their testimonies do not indicate that the accused who are acquitted were correctly identified in court also. For these reasons, the order of acquittal appears to be justified and there is no legitimate ground which could call for any interference in this appeal.
11. Coming to the quantum of sentence imposed Crl.Appeal No.1400 of 2005 :-13-:
also, I am of the opinion that the court below had taken only a reasonable view. There is no allegation that accused 1 to 7 were deliberate in their action. There is enough reason to think that the wrongful restraint of the lorries and the consequent deflation of tyres were done in a heat of action while exercising right to protest against lock out. No heavy loss was caused to the Company, except that tyres were deflated. Moreover, these accused were persons going on strike a few days ago against the lockout declared by the Company. Considering the circumstances in which, the criminal activities were committed, I am of the view that the court below rightly imposed the maximum sentence of fine under Sections 341 and 427 IPC. Even otherwise also, after a long lapse of time, namely 15 years, right from the date of conviction and sentence, there is no meaningful Crl.Appeal No.1400 of 2005 :-14-:
purpose also in modifying the sentence of fine into imprisonment. Looking it from any angle, I am of the opinion that the sentence imposed by the court below is just and reasonable. There is no cause made out for interference with the impugned order of acquittal and quantum of sentence. In the result, the appeal fails and it is dismissed.
All pending interlocutory applications are closed.
Sd/-
T.V.ANILKUMAR JUDGE ami/SCS