Kerala High Court
Jose vs State Of Kerala on 25 October, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 31ST DAY OF JANUARY 2014/11TH MAGHA, 1935
Crl.Rev.Pet.No. 3230 of 2003
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CRL.A NO. 256/2001 OF III ADDITIONAL SESSIONS JUDGE (ADHOC) FAST TRACK
COURT NO.1, THRISSUR, DATED 25-10-2003.
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C.C 293/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III,THRISSUR.
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REVISION PETITIONERS/APPELLANTS 1 & 4/ACCUSED 1 & 4:
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1. JOSE,
S/O.MOOKANIPARAMBIL PYLOTH,
MARATHAKKARA DESOM,
MARATHAKKARA VILLAGE,
THRISSUR DISTRICT.
2. CHEKKUTTY ALIAS BIJU,
S/O.KAVUNGAL KOCHAPPAN,
CHIYYARAM VILLAGE, THRISSUR DISTRICT.
BY ADV. SRI.N.P.SAMUEL
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.MADHUBEN.M
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 24-01-2014 , THE COURT ON 31-01-2014 PASSED THE FOLLOWING:
Msd.
K. RAMAKRISHNAN, J.
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Crl.R.P.No.3230 of 2003
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Dated this the 31st day of January, 2014.
O R D E R
Unsuccessful accused Nos.1 and 4 in C.C.No.293/1997 on the files of the Judicial First Class Magistrate Court, No.III, Thrissur, are the revision petitioners herein.
2. The revision petitioners along with six other persons were charge sheeted by the Sub Inspector of Police, Ollur in Crime No.314/1997 under Sections 143,147,148,448,365,342,323 and 324 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the Code').
3. The case of the prosecution in nutshell was that there were some money transactions between the first revision petitioner and CW2 and they were on enmical terms due to the same. On account of that enmity, under the leadership of the first revision petitioner, on 30.10.1997 at about 1.20 p.m all the accused persons formed themselves in an unlawful assembly with deadly weapons and each one of them knowing the common object of that assembly, appeared in front of shop No.XIV/418 situated at Puthur panchayat, where CW2 was doing his cement business and for that purpose, Crl.R.P.No.3230 of 2003 2 they criminally trespassed into the shop, dragged CW2 outside and forcibly took him in a car bearing Reg.No.KL 8 H 3347 and kidnapped him and took him to building No.XIV/220 of Koorkenchrry panchayat and they wrongfully confined him in that building from 2 p.m to 7.30 p.m and inflicted injuries on him with hands and weapons and kicked him and caused voluntary hurt to him and thereby all of them committed the offences punishable under Sections 143, 147, 148, 448, 365, 342,323 and 324 read with Section 149 of the Code.
4. When the accused appeared before the court below, after hearing both sides, the learned Magistrate framed charge against all the accused for the above said offence and the same was read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, PWs1 to 12 were examined, Exts.P1 to P7 were marked on their side. After closure of the prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them for the prosecution evidence. They have further stated that they have not committed any offence. They are innocent of the same and they have been falsely implicated in Crl.R.P.No.3230 of 2003 3 the case. No defence evidence was adduced on the side of the accused. After considering the evidence on record, the learned Magistrate found accused Nos. 5 to 8 not guilty of the offences alleged and acquitted them of the charges levelled against them giving them the benefit of doubt under Section 248(1) of the Code of Criminal Procedure. But the learned Magistrate found accused Nos. 1 to 4 guilty under Sections 365 read with Section 34 of the Code, 342,324,323 and 448 of the Code and convicted them thereunder and sentenced them to undergo rigorous imprisonment for six months each for the offence under Section 365 read with Section 34 of the Code and further sentenced to undergo simple imprisonment for three months each for the offences under Section 342, 324, 323 and 448 of the Code. Further, sentenced to pay a fine of Rs.200/- each in default to undergo simple imprisonment for one month each for the offences under Sections 448, 342, 323, 365 and 324 read with Section 34 of the Code. It is further ordered that, if the fine amount is realised, the same was directed to be paid to PW2 as compensation under Section 357(1)(b) of the Code. The substantive sentences were directed to run concurrently.
5. Dissatisfied with the order of conviction and sentence Crl.R.P.No.3230 of 2003 4 passed by the learned Magistrate, accused Nos.1 to 4, who includes the revision petitioners, filed appeal before the Sessions Court, Thrissur as Crl.A.No.256/2001 and the same was made over to the Third Additional Sessions Court (Adhoc- No.1), Thrissur for disposal. The leaned Additional Sessions Judge by the impugned judgment acquitted accused 2 and 3 of the charges levelled against them and acquitted the revision petitioners for the offences under Section 324 read with Section 34 of the Code and confirmed the order of conviction and sentence passed against them under Sections 323,342,448 and 365 read with Section 34 of the Code, which is being challenged by the revision petitioners before this Court by filing the above revision.
6. Heard the counsel for the revision petitioners and the learned Public Prosecutor.
7. The counsel for the revision petitioners submitted that though there was a specific motive alleged for the first revision petitioner to commit the crime, namely some financial transaction between him and PW2, there was no evidence adduced on the side of the prosecution to prove this fact. Further, PW2 also stated that there was no such financial Crl.R.P.No.3230 of 2003 5 transaction. So, the motive for committing crime has not been established, which will break the link alleged for the first accused to form unlawful assembly with other accused persons to commit the crime. Further there is discrepancy in the evidence of PWs 2 and 4 regarding the presence of the first revision petitioner at the first place of occurrence. Further, the nature of the building where he was taken and unlawfully confined is different as stated in the scene mahazer and the version of PW2 when he spoke about the incident. Further, the entire incident happened from the road and so, no offence under Section 448 of the Code is attracted. The learned counsel also submitted that since the first place of the incident happened from the shop room of PW2, it cannot be said to be a trespass. Further, the entire evidence adduced on the side of the prosecution and also the finding of the courts below regarding other accused persons about their identity and disbelieving the version of prosecution witnesses regarding user of the weapon will go to show that the case of the prosecution is not probable and believable and both the courts were not justified in convicting the revision petitioners for the offences alleged and there is discrepancy in the Crl.R.P.No.3230 of 2003 6 evidence of the prosecution witnesses and that benefit should have been given to the revision petitioners as well. So, according to the learned counsel for the revision petitioners, the petitioners are entitled to get acquittal of the charge levelled against them giving them the benefit of doubt.
8. On the other hand, the learned Public Prosecutor argued that the evidence on the side of prosecution proved the guilt of the accused beyond reasonable doubt and no interference is called for at the hands of this Court.
9. Before going through the facts of the case, I may remind myself of the powers of the revisional court in reappraising the evidence. This Court is not expected to reappraise the evidence as in the case of the appellate court to come to a different finding. If the view taken by the court below is acceptable, this Court is not expected to upset that concurrent finding of the courts below. Total reappreciation will be possible only in a case where this Court is of the opinion that the entire finding is perverse and such finding could not be possible on the basis of the evidence adduced on the side of the prosecution. With this in mind, the facts of the case has to be considered.
Crl.R.P.No.3230 of 2003 7
10. The case of the prosecution was that on 30.10.1997 while PW2 was in his shop in another place, he got a telephone call from a shop at bypass road that somebody wants supply of cement and immediately he went to that place. At that time accused 1 and 4 came to the shop and asked for 60 bags of cement and when they were talking, they wanted PW2 to come to some place for discussion, which he was reluctant to go, at that time accused Nos.1 and 4 along with two others forcibly dragged PW2 from the shop room to the road and then put him in the car and then took him to the second place of occurrence and wrongfully confined him and all the accused persons have inflicted injuries on him by beating and kicking. Thereafter, he was taken in an auto rickshaw and left near his shop. Thereafter he was taken to a hospital and examined by PW6, who issued Ext.P2 wound certificate.
11. When PW1, the brother of PW2, came to know about the incident, immediately he gave Ext.P1 written complaint to PW10, who registered Ext.P6 First Information Report as Crime No.314/1997 of Ollur police station under Section 395 of the Code against some identifiable persons came in KL Crl.R.P.No.3230 of 2003 8 8H 3347 Ambassador car. Thereafter the investigation in this case was undertaken by PW9, the Sub Inspector of Police attached to Ollur police station. He went to the first place of occurrence and prepared Ext.P3 scene mahazer and also went to the second place of occurrence and prepared Ext.P4 scene mahazer in the presence of PWs 11 and 12 respectively. Thereafter he prepared Ext.P5 vehicle mahazer of the car involved in the incident and obtained Ext.P7 ownership certificate of building No.XIV/418 issued by PW12. He questioned the witnesses and recorded their statements. He completed the investigation and submitted final report against the accused persons including the revision petitioners herein.
12. It is true that though a motive was alleged, the prosecution was not able to prove that motive. But in a case where the incident can be proved by ocular witnesses, then non establishment of motive became irrelevant in such cases. Non establishment of motive may be relevant and important in a case where the case has to be decided on the basis of the circumstantial evidence as non proving of this may break the link and broke the chain and that benefit must be given to the accused. So, in this case, the incident is being proved Crl.R.P.No.3230 of 2003 9 throughthe injured victim and also eye witnesses to the incident. So in such circumstances, if the prosecution is able to establish the case through ocular witnesses, non proving of motive loses importance and that cannot be said to be fatal in this case.
13. PW1 is not an eye witness to this incident and he only gave Ext.P1 written complaint immediately when he came to know about the incident. He had no direct knowledge about the incident.
14. PW2 is the injured victim. According to him, while he was in his shop, he got a telephone call regarding the business transaction of cement and he was asked to come to the shop at bypass road and immediately he went to that shop and at that time accused Nos. 1, 4 and two others came to him and asked for cement and for having discussion about the same, they wanted him to come to a particular place, for which he was not agreeable. Immediately they forcibly took PW2 by dragging him from the shop to the road and thereafter forcibly put him in the car in which they came and he was taken to a building after tying his eyes and thereafter he was confined in that room for sometime and he was beaten by them. It is true that Crl.R.P.No.3230 of 2003 10 he had categorically stated that there was no weapon used for beating him, though police had such a case in the 161 statement recorded by the investigating officer of this witness. But he had categorically stated regarding the involvement of both the revision petitioners in the incident. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding this aspect. Ext.P2 wound certificate also will go to show that he sustained some injuries on his body and the doctor has deposed that this could be possible as alleged. So, his evidence will go to show that the revisions petitioners have criminally trespassed into the shop and forcibly taken him in the car and caused injury to him.
15. PW3, another eye witness, who is an employee of PW2 also deposed about the first part of the transaction namely kidnapping PW2 from the shop in the car. He had identified the first accused as one of the persons present and took active role in that part of the incident. Though he was cross examined at length, nothing was brought out to discredit his evidence regarding this aspect.
16. PW4 also deposed about this part of the incident. He had also identified the first revision petitioner as one of the Crl.R.P.No.3230 of 2003 11 persons present and took active part in kidnapping PW2 in the car. Though there is some discrepancy in the evidence of PW2 when compared to the evidence of PW3 about the first revision petitioner, that is not a material contradiction or discrepancy which makes his evidence unbelievable.
17. The submission made by the counsel for the revision petitioners that since the first part of the transaction had alleged to have been taken place from the shop of PW2 and from the public road, no offence under Section 448 of the Code is attracted. It may be mentioned here that entry of the accused persons to the shop of PW1 though lawful, if it ended in commission of an offence, then that entry became unlawful and that entry will amount to criminal trespass. So, the courts below were perfectly justified in convicting the revision petitioners for the offence under Section 448 of the Code.
18. The evidence of PWs 2 to 4 will go to show that in furtherance of common intention of the revision petitioners, PW2 was kidnapped from his shop and thereafter he was wrongfully restrained in a building and voluntarily caused hurt to him and thereby they have committed the offences punishable under Sections 323, 342,448 and 365 read with Crl.R.P.No.3230 of 2003 12 Section 34 of the Code and the courts below were perfectly justified in convicting the revision petitioners for the above said offences. The discrepancy in the nature of the building mentioned in the scene mahazer and PW2 is not of much consequence as the possibility of making such mistake by the witness after lapse of time when he was examined. If other portion of the evidence is believable, it is not sufficient to disbelieve the prosecution case in toto. So the courts below were perfectly justified in convicting the revision petitioners for the offences under Sections 342,448,365 and 323 read with Section 34 of the Code. I do not find any reason to interfere with the finding of the courts below on this aspect.
19. The counsel for the revision petitioners submitted that the sentence imposed is harsh. Considering the sentence imposed, the courts below were perfectly justified in not invoking the provision of the Probation of the Offenders Act in this case. Further, considering the gravity of the offence and the manner in which it was executed by the revision petitioners, the sentence imposed by the courts below also cannot be said to be excessive and harsh. I do not find any reason to interfere with the sentence imposed by the courts below as it Crl.R.P.No.3230 of 2003 13 appears to be just and proper and maximum leniency has been shown by the courts below while awarding sentence to the revision petitioners. I do not find any reason to interfere with the sentence imposed by the courts below as well. So, the revision is without any merit and the same is liable to be dismissed and I do so.
In the result, this revision petition is dismissed and the order of conviction and sentence passed by the court below as modified by the appellate court are hereby confirmed.
Office is directed to send the records to the court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
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