Kerala High Court
Jameela vs The State Of Kerala on 10 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
Crl.L.P..No.408 OF 2019
AGAINST THE ORDER/JUDGMENT IN CC 60/2015 DATED 30-11-2018 OF
CHIEF JUDICIAL MAGISTRATE ,THODUPUZHA
CRIME NO.834/2013 OF Thodupuzha Police Station , Idukki
PETITIONER/S:
JAMEELA
AGED 50 YEARS
W/O. RASSAK, VANDANANICKAL (H), VADAKKUMMURIKARA-
685 585, EMPLOYEES GARDEN, THODUPUZHA GARDEN,
THODUPUZHA VILLAGE, THODUPUZHA TALUK.
BY ADVS.
SRI.K.A.HASSAN
SMT.JULIA PRIYA RESHMY
RESPONDENT/S:
1 THE STATE OF KERALA
THROUGH SI OF POLICE, THODUPUZHA POLICE STATION,
IDUKKI DISTRICT, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031
2 MATHEW VARGHESE,
PUTHENPURAYIL HOUSE, (57/17), VADAKKUMMURI KARA,
EMPLOYEES GARDEN-685 585, THODUPUZHA VILLLAGE,
THODUPUZHA TALUK.
3 A.K. DIVAKARAN,
ANITHOTTATHIL HOUSE, (62/17), VADAKKUMMURI KARA,
EMPLOYEES GARDEN, 685 585, THODUPUZHA VILLAGE,
THODUPUZHA TALUK.
4 M.N. SUKUMARAN,
MOOTHEDATHU HOUSE (63/17) , VADAKKUMMURI KARA,
EMPLOYEES GARDEN, 685 585, THODUPUZHA VILLAGE,
THODUPUZHA TALUK.
5 V.N. JALAJA KUMARI, ANITHOTTATHIL HOUSE, (61/17),
VADAKKUMMURI KARA, EMPLOYEES GARDEN, 685 585,
THODUPUZHA VILLAGE, THODUPUZHA TALUK.
6 M.N. SIVANUNNI,
MANGALAMUNDACKAL HOUSE, (59/17), VADAKKUMMURI KARA,
EMPLOYEES GARDEN, 685 585, THODUPUZHA VILLAGE,
THODUPUZHA TALUK.
R2-6 BY ADV. SRI.T.V.GEORGE
R2-6 BY ADV. SRI.JIMMY GEORGE (THADATHIL)
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON
18.10.2019, THE COURT ON 10.03.2020 PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
==================
Crl.L.P.No. 408 of 2019
==================
Dated this the 10th day of March, 2020
ORDER
The above application has been filed by the defacto complainant under Sec. 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to file criminal appeal to impugn the judgment dated 30.11.2018 rendered by the Chief Judicial Magistrate's Court, Thodupuzha, whereby the accused persons in Calendar Case, C.C.No. 60/2015 have acquitted. Respondents 2 to 6 have been arrayed as accused 1 to 5 among the five accused in the instant Calendar Case, C.C.No. 60/2015 on the file of the Chief Judicial Magistrate's Court, Thodupzha, which has arisen out of the private criminal complaint filed by the applicant herein, who is the complainant therein, alleging that the said accused persons have committed offences punishable under Secs. 143, 148, 323, 447, 406 (ii), 354, read with Sec. 149 of the I.P.C.
2. Heard Sri.K.M.Ameer, learned counsel appearing for the petitioner, Sri.Amjad Ali, learned Prosecutor appearing for R-1 State of Kerala and Sri.T.V.George, learned counsel appearing for R-2 to R-6 (accused persons).
3. The brief of the prosecution case is that on 10.4.2013 at Crl.L.P.408/19 - : 4 :-
about 7.30 a.m. at the courtyard and car porch of the residence of the complainant, the abovesaid persons, five in number, had formed themselves into an unlawful assembly in furtherance of their common object to offend hurt and to cause mischief to the complainant due to animosity against her, that the accused persons have committed criminal trespass by entering into the said place, A-1 had hit at the asbestos sheet of the house of the complainant and had criminally intimidated her, A-4 had thrown mud towards the head of the complainant and caught hold of her hair, A-5 had destroyed the chappel stand, A-3 had criminally intimidated her by brandishing a sword, A-2 pushed her with the result that the chopper with A-1 hit her thigh, that she suffered pain, A-1 caught hold of her hand, A-2 hit her, all the accused persons closed the canal and constructed a canal through her property and destroyed the trees the property of the complainant and removed mud from her property and thus caused a loss of Rs. 3,500/- to her and thereby the accused persons have committed the abovesaid offences.
4. The learned Magistrate had framed charge under the abovesaid sections, to which the accused persons had pleaded not guilty, etc. In the trial, P.Ws 1 to 3, were examined and Exts.P-1 to P-
Crl.L.P.408/19 - : 5 :-
7 were marked. In further evidence P.Ws.2 and 3 were recalled and further cross examined and accused persons were subjected to Sec. 313 Cr.P.C. questioning process. From the side of the defence, Dws 1 to 3 were examined and Exts.D-1 to D4 and P8 were marked and thereafter P.W-1 was further cross examined and Exts.D5 to D7 were also marked.
5. The learned Chief Judicial Magistrate, after hearing the parties and after due appreciation of the evidence on record has conclusively found that the complainant has not led convincing and safe evidence so as to find the accused persons guilty of the alleged offences and thus, by the impugned judgment dated 30.11.2018, the learned Magistrate has acquitted all the 5 accused persons therein (respondents 2 to 6 herein).
6. The learned Magistrate has found that the sequence of events resulting in the instant case arose out of the following incidents:- The Employees' Garden Residents' Association had acquired 2.71637 acres of property for a housing scheme for its members the said property was divided into 28 plots, one plot of four ares was spared for recreation and the remaining 27 plots each measuring 7.850 cents were allotted to the members together with Crl.L.P.408/19 - : 6 :-
appurtenant common roads and drainage canals. Accordingly, such roads were constructed with the adjoining drainage canal, which was taking a total extent of 20.75 Ares. Plot No.16 measuring 7.850 cents was purchased herein by the applicant herein/complainant therein and her husband, who constructed a house therein in the year 2001. The learned Magistrate has found that there were allegations that after few years of their occupation, the complainant and her husband had diverted the drainage canal further towards the west of the road and filled up the old drainage canal and also extended their southern basement towards west and thereafter the executive committee of Association passed a resolution requiring the complainant and her husband to enclose their property bifurcating the same from the common road and the adjoining canal. According to the accused persons, after complying with the required formalities, the selected members of the Association restored the drainage canal and partially demolished the basement constructed by the complainant on 29.1.2011 and when the members of the Association were clearing the road portion, the complainant obstructed the same and therefore the Association had preferred an original suit, as O.S.No. 241/2011 before the Munsiff's Court, Thodupuzha, in which judgment and decree was Crl.L.P.408/19 - : 7 :-
rendered on 27.3.2013, declaring that the portion of the property in dispute is part of the common property of the housing colony set up for road and drainage of the residents of the colony and declaring that the Association has right and duty to protect and upkeep the same for the welfare of all the plot owners in the colony and also to see that the said road is not misused by any person outside the housing colony, etc. The suit was thus decreed on 27.3.2013. According to the complainant, the instant allegations have occurred on 10.4.2013. P.W-1 (complainant) has deposed in cross examination that there was no road or canal in front of her house and the accused built the road and the canal after the judgment and decree in the original suit and she has admitted that she had planted coconut and mango trees in the place, where the road and canal are situated. The learned Magistrate after perusing Ext.P-4 judgment and decree, has found that the total extent of the property of the society is 1.0993 hectares, the road potion is 0.2095 hectares and the plot extent is 0.0400 hectares. Plot No.16 was found to be allotted to the complainant and her husband and the extent of the property including that earmarked for the road and the other common purpose was found to be 10.055 cents and that in fact the property put in possession was only 7.850 cents and Crl.L.P.408/19 - : 8 :-
the remaining portion was common road and drainage canal. That all the 27 owners even though were having title in respect of their respective shares, common road and canal were to be spared by each plot owner. The complainant had derived title over 10.055 cents of property as per the sale deed and they were paying land tax, etc. But as per the recitals in the sale deed, the actual possession is only for
7.850 cents and the balance property will form part of the common property for road and canal for the enjoyment of all the 27 plot owners.
7. As per the evidence of P.W-3 in cross examination, on the alleged date of incident, which is after the judgment and decree of the civil suit, while he was standing in his residence, he had seen all the accused along with many other persons and Police men standing at the place of occurrence. Even though he had supported the case of the complainant during the cross examination by the counsel for the complainant with permission of the court, the above referred evidence of P.W-3 in his chief examination has remain unchallenged. In the civil suit, the complainant had alleged that on 15.8.2011, the accused and their men had destroyed one coconut tree, one mango tree and one jack tree in the property of the complainant and made Crl.L.P.408/19 - : 9 :-
attempt to construct a new canal. In this case, the complainant has alleged that the accused persons destroyed two coconut trees. The Police after investigation had earlier filed Ext.D-6 refer report, wherein the Police has found that the case is only to be referred as it is false. The Police has reported that the accused persons were clearing the canal and road in the presence of the Police and the complainant herein and that due to animosity of the complainant, she has falsely preferred the first information statement before the Police stating that she was assaulted, in which the Police filed Anx. D6 refer report, finding that the allegations raised by the complainant are false.
8. The specific case of the complainant is that she is the owner of 10.055 cents of property as per the registered sale deed and 7.850 cents are her possession and the remaining properties set apart for common road and canal, but as per the lay out, the complainant is entitled for more, because there are some others also got in possession of more land. The learned Magistrate has found that the said claim of the complainant itself shows that this is the real reason behind the disputes between the rival parties. The learned Magistrate has found that as per the internal arrangements made by the said Crl.L.P.408/19 - : 10 :-
association, for the beneficial enjoyment of the colony and for the entire 27 plot owners, some portions from each owners are set apart for common road and canal and that the complainant is claiming that property also for her exclusive use, which has been resisted by other 26 members of the colony, which has resulted in the instant dispute.
P.W-1 has admitted in cross examination that even though she had preferred an appeal against the judgment and decree of the Munsiff's Court, the said appeal has been dismissed with cost. Further it has been ordered in the appeal that there was already a canal, which the Municipality is bound to protect. From the admissions of P.W-1 itself, it is clear that she had preferred very many complaints against the accused persons and the residential association and she does not remember how many complaints had been preferred. The learned Magistrate after due appreciation of evidence has found that P.W-1's version is exaggerated and embellished and that though many residents in the housing colony had seen the incident, none of them were witnesses in this case and the complainant examined P.W-3, who is an outsider, admitted in cross examination that on the basis of the judgment of the court, the members of the society with the aid of the Police restored the canal and road.
Crl.L.P.408/19 - : 11 :-
9. P.W-3 is the only eye witness to the said incident and he has supported the version of accused in the beginning of the chief examination and therefore, the counsel appearing for the complainant was permitted to put questions that may be put by the opposite party to the witnesses. P.W-3's earlier deposition in the court has been marked Ext.P-6. Thereafter, P.W-3 has supported the case of the complainant and deposed that he had seen the incident. The learned Magistrate has found that the incident in the civil case, O.S.No. 241/2011, is in respect of a different incident and in that case also P.W-3 was a witness, in which the learned Magistrate has found that he has given divergent versions. On this basis, the learned Magistrate has found that the version of P.W-3 is highly contradictory. The learned Magistrate has found that even from the evidence of P.W-3 it has been stated that the accused persons and residents of the colony were found to standing at the place of occurrence along with the Police party.
10. P.W-2, doctor has stated that P.W-1 was suffering from tenderness on the back of chest and tenderness on the left shoulder and the doctor has deposed in cross examination that names of the assailants were not stated to him by the patient and that the injuries Crl.L.P.408/19 - : 12 :-
noted by her were minor in nature and that such injuries are possible in other type of altercations also. The learned Magistrate has found that though, as per the evidence of P.W-1 she is said to have suffered tenderness on the back of her chest and left shoulder, etc. the accused cannot be compelled to explain as to how the complainant has suffered the said injury and that apart, even injuries claimed to have been suffered by her are found to be minor in nature even going by the evidence of the doctor (P.W-2) and on this basis, the learned Magistrate has said that it cannot be inferred or presumed that those injuries are inflicted by the accused persons.
11. After appreciating the defence evidence the learned Magistrate has found that DW3, who is residing in the same colony, has deposed that at 6.30 a.m. on the alleged day of the incident, he has seen the complainant pouring mud to the canal and all the neighbouring residents came to the place of occurrence and demanded that it has to be stopped and that the matter was accordingly informed to the Police. That later the Police came to the place of the occurrence and removed the said mud from the canal. Even though D.W-3 was cross examined at length, nothing was brought out to discredit the said testimony and he has deposed that Crl.L.P.408/19 - : 13 :-
during the time of the alleged incident, he was the president of the residents' association. After appreciating the evidence the learned Magistrate has found that the evidentiary version given by P.W-1 and P.W-3 are not reliable and safe for sustaining a conviction, more so, particularly in the light of the evidence of D.W-3 and hence the learned Magistrate has taken the considered the view that it will be highly unsafe to rely on the embellished and uncorroborated testimony of P.W-1 to hold that the accused persons are guilty of the abovesaid alleged offence. Hence the learned Magistrate has found conclusively and categorically that all the accused persons are entitled for the benefit of doubt.
12. After hearing both sides this Court of the considered view that the abovesaid views and conclusions made by the learned Magistrate are after due appreciation of evidence on record and that the said views and conclusions of the learned Magistrate cannot be said to be manifestly perverse or unreasonable. On the other hand, this Court is also inclined to take the view that the abovesaid incidents occurred in the course of civil disputes between the parties and the learned Magistrate is right in holding that it will be unsafe to convict the accused persons on the said unreliable testimony of P.W-
Crl.L.P.408/19 - : 14 :-
1 and P.W-3, more so particularly in the light of the evidence of D.W-
3.
13. It is in the light of abovesaid considered findings of facts that the trial court has come to the considered conclusion that the accused is entitled to the benefit of acquittal. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal.
14. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:-
"In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence."
Further, in the case Pudhu Raja and another Vs. State reported in (2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430 , the Apex Court has held that, "The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence".
15. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the Crl.L.P.408/19 - : 15 :-
evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the above Leave Petition is bereft of any merit and accordingly, the same is dismissed.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE