Kerala High Court
Ammini vs The Sub Inspector Of Police on 2 November, 2024
2024:KER:81777
Crl.R.P.No.619 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH KARTHIKA,
1946
CRL.REV.PET NO. 619 OF 2014
CRIME NO.134/2008 OF Aranmula Police Station,
Pathanamthitta
AGAINST THE ORDER/JUDGMENT DATED 22.03.2013 IN CC
NO.136 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
I,PATHANAMTHITTA ARISING OUT OF THE ORDER/JUDGMENT DATED
07.12.2013 IN CRA NO.84 OF 2013 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - IV, PATHANAMTHITTA / IV ADDL.
M.A.C.T.
REVISION PETITIONERS/APPELLANTS/ACCUSED:
1 AMMINI
AGED 41 YEARS
W/O.NANDAKUMAR, MELEKUZHIYIL VEEDU, KADAMANITTA
MURI, NARANGANAM VILLAGE, PATHANAMTHITTA
DISTRICT.
2 RAJAN
AGED 44 YEARS
S/O.PODIYAN, MELEKUZHIYIL VEEDU, KADAMANITTA
MURI, NARANGANAM VILLAGE, PATHANAMTHITTA
DISTRICT.
3 RAJENDRAN
AGED 42 YEARS
S/O.RAMAN PODIYAN, MELEKUZHIYIL VEEDU,
KADAMANITTA MURI, NARANGANAM VILLAGE,
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Crl.R.P.No.619 of 2014
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PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.V.SETHUNATH
SRI.S.JUSTUS
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 THE SUB INSPECTOR OF POLICE
ARANMULA, PIN - 689 533.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682
031.
SRI. NAUSHAD . K.A PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 02.11.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2024:KER:81777
Crl.R.P.No.619 of 2014
:3:
P.G.AJITHKUMAR, J.
------------------------------------
Crl.R.P.No.619 of 2014
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Dated this the 02nd day of November, 2024
JUDGMENT
The petitioners along with two others were the
accused in C.C.No.136/2008 on the files of the Judicial
Magistrate-I, Pathanamthitta. They were charged with
offences punishable under Sections 143, 147, 148, 447,
427 and 294(b) read with 149 of the Indian Penal Code,
1860. The Trial Court found the petitioners alone guilty
of offences under Sections 143, 147, 148, 447 and 427
read with 149 of the IPC. Besides imprisonment of
various terms, fine was also imposed. Fine was ordered
to be paid as compensation. Appeal filed by petitioners
was dismissed by the Additional Sessions Judge IV,
Pathanamthitta in Criminal Appeal No.84/2013.
Aggrieved thereby the petitioners filed this revision
petition invoking the provisions of Sections 397 and 401
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of the Code of the Criminal Procedure, 1973.
2. Heard the learned counsel for the
petitioners and the learned Public Prosecutor.
3. The learned counsel for the petitioners by
placing reliance on the decisions of the Apex Court in
Ramanlal v. State of Haryana [(2015) II SCC I]
would submit that having three among the five persons
charged alone were convicted, offences under Sections
143, 147 and 148 could not be attracted. It is submitted
that unless involvement of five persons is established by
cogent evidence, no conviction with the aid of Section
149 of the IPC could be had, whereas the Trial Court
wrongly convicted the petitioners in spite of a finding that
involvement of three persons alone was proved.
4. In Ramanlal (Supra), the Apex Court
took the view that Section 149 cannot be taken aid of
since involvement of four persons alone in the
commission of the offence was proved. In order to
attract the offence of unlawful assembly, a minimum of
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five persons should have joined in commission of the
offence. If the prosecution failed to prove that there
were five persons in committing the offence, no
conviction for the offence of unlawful assembly and
consequent invocation of Section 149 would be possible.
Here the finding of the Trial Court is that there were more
persons than petitioners 1 to 3, but the prosecution could
establish involvement of petitioners alone. The finding of
the Trial Court is not definite as to how many more
persons than the petitioners took part in the destruction
of the boundary structure. Since there is no definite
finding that five or more persons involved in the
commission of the offence, conviction of the petitioners
for the offence of unlawful assembly and allied offences
cannot be justified. The proposition of law in Ramanlal
(Supra) has application in this case.
5. The question next arises is whether the
petitioners could have been convicted without the aid of
Section 149 of the IPC. The definite allegation of the
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prosecution is that the assailants came possessed with
spade, pickaxe etc., criminally trespassed into the
courtyard of the house of PW1 and destroyed the
boundary structure. The Trial Court resting on the
evidence of PWs 1 and 2 found that the said overt acts
have been proved. From the said finding a common
intention on the part of the assailants could certainly be
infarred. Therefore, the charge against the petitioners
implies existence of a common intention among them,
and a conviction with aid of Section 34 of the IPC is
possibly in this case.
6. The essential offences proved to have
been committed by the petitioners are under Sections
447 and 427 of the IPC. As stated, the petitioners came
with weapons, trespassed upon the courtyard of PW1 and
destroyed the boundary structure. The learned counsel
for the petitioners would submit that on the basis of
evidence of PWs 1 and 2 alone a conviction is impossible.
It is further submitted that the possible evidence as
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regards the destruction of the boundary structure is the
scene mahazar, but the scene mahazar which was
marked as Ext.P4 was not proved by examining the
attesting witnesses in it. In the view of the learned
counsel Ext.P4 cannot therefore be received in evidence
and acted upon. The learned counsel avails support for
the said proposition from the decisions of the Apex Court
in Mohinder Kaur and others v. Hira Nand Sindhi
(Ghoriwala) [(2015) 4 SC 434]. It was held in that
decision that unless, atleast one of the witnesses to the
recovery mahazar is examined, no credibility can be
attached to the mahazar. Of course, PW3, the
investigating officer who prepared Ext.P4 deposed
substantiating the contents of Ext.P4. In the light of the
law laid down in Mohinder Kaur it may be
inappropriate to place reliance on Ext.P4.
7. Even excluding Ext.P4 the version of PWs
1 and 2, which was found trustworthy by both the Courts
below is enough to prove the entry of the petitioners to
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the courtyard and destruction of the boundary structure.
The said fact is percievable and PWs 1 and 2 who
witnessed the incident deposed in Court convincingly.
Therefore the findings of the Courts below that
petitioners 1 to 3 criminally tresspassed upon the
property of PW1 and destroyed the boundary structure
has the support of sufficient evidence. Therefore, I find
no reason to interfere with the finding of the Courts
below that the petitioners did the alleged acts.
8. In view of what are stated above, the
petitioners are liable to be convicted for the offences
under Sections 447 and 427 read with 34 of the IPC.
Their conviction is modified accordingly. Coming to the
sentence imposed on the petitioners, the submission of
the learned counsel is that having elapsed more than a
decade after the incident and the dispute is concerning
the boundary structure regarding which civil litigation
was pending between the parties, incarceration of the
petitioners is absolutely unwarranted. Having considered
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the submissions of the learned counsel for the petitioners
and also the learned Public Prosecutor, I am of the view
that this is a case where imposition of imprisonment of
long term can be avoided. Accordingly, each of the
accused is sentenced to undergo imprisonment till the
rising of the Court and to pay a fine of Rs.10,000/-
(Rupees Ten Thousand Only) for the offence punishable
under Section 427 of the IPC and to pay Rs.500/- (Rupees
Five Hundred Only) under Section 427 of the IPC. In
default of payment of fine, the petitioners shall undergo
simple imprisonment for a period of one month and five
days respectively. If the fine is realized, an amount of
Rs.25,000/- shall be paid as compensation to PW1.
Sd/-
P.G.AJITHKUMAR,
JUDGE
Raj.
