Kerala High Court
Rafeeque vs State Of Kerala on 5 November, 2024
Crl. R.P 251/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
CRL.REV.PET NO. 251 OF 2016
CRIME NO.155/2006 OF FEROKE POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 07.01.2016 IN CRA NO.253 OF
2014 OF ADDITIONAL SESSIONS COURT-III, KOZHIKODE,ARISING OUT
OF THE JUDGMENT DATED 19.03.2014 IN CC NO.379 OF 2006 OF
JUDICIAL MAGISTRATE OF FIRST CLASS-V,KOZHIKODE
REVISION PETITIONER/APPELLANTS/ACCUSED:
1 RAFEEQUE
S/O.MUHAMMED,
CHOORAKKAVIL HOUSE,
AIKARAPPADY, CHERUKAVU,
MALAPPURAM DISTRICT.
2 MUHAMMED ALI
S/O.MUHAMMED,
CHOORAKKAVIL HOUSE,
AIKARAPPADY, CHERUKAVU,
MALAPPURAM DISTRICT
3 KUNHIMOIDEEN
S/O.MUHAMMED ALI,
NAMBIVEETIL HOUSE,
AIKARAPPADY,
MALAPPURAM DISTRICT.
BY ADV.
SRI.BABU S. NAIR
SRI. SIDDHARTH K. PISHARADY
Crl. R.P 251/2016
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RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM KOCHI 682 031 - FOR
THE SUB INSPECTOR OF POLICE,
FEROKE POLICE STATION,
KOZHIKKODE DISTRICT.
BY SMT. MAYA M.N - PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 30.10.2024, THE COURT ON 05.11.2024 DELIVERED THE
FOLLOWING:
Crl. R.P 251/2016
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ORDER
Dated this the 5th day of November, 2024
This Criminal Revision Petition has been preferred by the appellants in
Crl. Appeal No.253 of 2014 on the file of the Additional Sessions Judge-III,
Kozhikode, confirming the conviction and sentence passed against them by
the Judicial First Class Magistrate -V, Kozhikode, under Section 341 and 353
r/w Section 34 of IPC.
2. The prosecution case is that PW1 was the Assistant Geologist
attached to Kerala Mineral Squad (Northern Range) during 2006. At about
10.15 a.m. on 5.7.2006, PW1 and his squad were inspecting vehicles to
ascertain whether granite stones were transported, without valid pass. At that
time, they found the lorry KL 10 Y 5257, transporting granite along the
Ramanattukara - Kondotty public road. Though they had given signal to the
driver to stop the lorry, it was sped away. In that respect, PW1 filed a
complaint before the Feroke Police at 10.45 a.m. Thereafter, they proceeded
to other places and at about 2 p.m. they reached near Ramanattukara Junction.
At that time, the same lorry came there, restrained the Jeep of PW1 and party
and attacked PW1 and PW3, a member of the squad and thereby deterred
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them from discharging their official duty.
3. The evidence in the case consists of the oral testimonies of PWs1 to
14 and Exhibits P1 to P9 on the side of the prosecution. On the side of the
accused persons, DW1 was examined and Exhibits D1 to D3 were marked.
After evaluating the evidence on record, the trial court found the accused
persons guilty of the offences under Sections 341, 353 r/w 34 of IPC and
sentenced them to undergo different terms of punishment, including simple
imprisonment for three months each and a fine of Rs.2,000/- each under
Section 353 r/w Section 34 IPC. In appeal, the Sessions Judge Kozhikode
confirmed the above finding. Dissatisfied with the above judgment of the
Appellate Court, they preferred this revision, raising various contentions.
4. Now, the point that arise for consideration is the following:
Whether the impugned judgment of the Sessions Judge,
Kozhikode confirming the conviction rendered and sentence
passed by the trial court is liable to be interfered with, in the
light of the grounds raised in the revision petition?
5. Heard Adv. Sri. Siddharth K Pisharady on behalf of the Revision
Petitioner and Smt. Maya M.N, the learned Public Prosecutor, on behalf of
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the State.
6. The point: The learned counsel for the revision petitioner would
argue that, the evidence of PWs 1 to 3 are contradictory to each other on
several material points so that it is not at all safe to rely upon them to find the
accused guilty. Therefore, he prayed for acquitting the accused persons by
allowing the revision petition. On the other hand, the learned Public
Prosecutor would argue that the prosecution has succeeded in proving the
charge against the accused persons beyond reasonable doubt and therefore,
she prayed for dismissing the revision petition.
7. PW1, the Assistant Geologist, who is also the first informant would
swear that on 5.7.2006 at about 10.15 a.m. while they were inspecting
vehicles to ascertain whether there was illegal transport of granite, they found
that in the lorry KL 10 Y 5257, granite was being transported along Kondotty-
Ramanattukara road. In spite of the fact that signal was given to stop the
lorry, they sped away. Though they had chased the lorry, up to Kolarkunnu,
the driver and the persons inside the lorry ran away after abandoning the lorry
there. He prepared a mahazar in that respect and a complaint was given to
Feroke Police at about 10.45 a.m. Thereafter, they proceeded to other places
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and during the afternoon at about 2 p.m. when they reached Ramanattukara
Junction, the same lorry chased them and stopped the lorry in front of the jeep
in which they were travelling and restrained them. Three persons came out of
the lorry and they beat him, while he was sitting in the front seat of the jeep.
They pulled his hand and while so, his wrist watch was broken and lost. They
forcefully took his mobile phone worth Rs.4,500/-, kept in his pocket. When
the Peon attached to his office, namely PW3 tried to restrain them, they beat
him also and caused injury on his hand and face. According to PW1, because
of the above act of the accused persons, their duty was obstructed. At that
time the driver of the jeep informed the police and they reached there
immediately and took the accused persons as well as the lorry along with
them to the police station. Thereafter, they went to the General Hospital
Kozhikode and also given exhibit P1 FI statement to the police.
8. The reason for the attack, according to PW1 is, the complaint
given by him to police, with respect to the incident that occurred in the
morning. During the cross examination, PW1 deposed that out of the three
persons who came out of the lorry, only one person beat him. At first PW1
deposed that he could not identify, from among the accused persons present
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in the dock, as to who was the person who beat him. Though during the chief
examination, he deposed that the accused persons robbed his mobile phone,
during the cross examination he clarified that he cannot say whether his
watch and mobile phone were lost in the commotion. According to PW1, the
assailants beat PW3 and he sustained injuries on his hand and face. However,
he clarified that he does not know whether the assailants used any weapon to
assault PW3. Further, according to him, there was no injury on his body,
while there was swelling on the body of PW3.
9. PW2, was the Mineral Revenue Inspector attached to the Mining
and Geology Department, who accompanied PW1 at the time of the incident.
She would swear that on 5.7.2006 she was on duty along with PW1, that in
the morning on 5.7.2006, they found that granite was transported in the lorry
KL 10 Y 5257 and that, when signal was given to stop the lorry, it was sped
away. According to her, at about 11a.m.-12 noon, when they reached
Ramanattukara Junction, the same lorry came there and parked the same
across the jeep. PW2 would further swear that, then some persons came out
of the lorry and beat PW1 and PW3. In the incident, the spectacle of PW1
was broken and he also lost his mobile phone. Further according to her,
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because of the assault, PWs1 and 3 sustained injuries. However, she clarified
that she is not sure whether the assailants are the persons present in the dock.
Thereafter, she would swear that the police arrested the assailants and
brought them to the police station and told them that they are the assailants.
She also deposed that she does not know the motive behind that attack.
10. PW3, was a Peon attached to the squad of PW1. He also would
swear that in the morning on 5.7.2006, the lorry KL 10 Y 5257 was found
transporting granite along the Kondotti - Ramanattukara Road and sped away
when signal was given to stop. According to him, at about 1 p.m. when they
reached Ramanattukara Junction, the same lorry came there and stopped in
front of the jeep. Three persons came out of the lorry, beat PW1, robbed his
watch worth Rs.2,000/- and mobile phone worth Rs.4,500/-. When he tried to
stop them, they opened the back door of the jeep and beat him with a Jacky-
liver like weapon and inflicted injury on his left hand and left ear. Police
came there and took the accused persons to the police station. According to
him, it was the 3rd accused who beat him with an iron rod with round shape.
Further according to him, all the three accused persons fisted him as well as
PW1, while 3rd accused alone beat him with iron rod.
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11. As argued by the learned counsel for the revision petitioner, the
evidence of PWs1 to 3 are contradictory to each other on several material
aspects. While according to PW1, only one of the assailants beat him, PW3
would swear that all the three assailants fisted him and PW1. As per the
prosecution case, the assailants robbed the wrist watch and mobile phone of
PW1. During the chief examination, PW1 claimed that when the assailants
pulled his hand, his wrist watch was broken and lost in the incident.
Thereafter, he claimed that the assailants forcefully took his mobile phone
worth Rs.4,500/- from his pocket. Though the accused were charged under
Section 494 IPC also, they were acquitted of the aforesaid offence, by the trial
court itself and the said finding is not challenged by anybody. According to
PW2, in the incident, the spectacle of PW1 was broken and he also lost his
mobile phone. However, PW2 had not spoken about the loss of the wrist
watch. PW1 has no case that in the incident his spectacle was broken.
During the cross examination, PW1 clarified that he is not sure whether in the
commotion his wrist watch and mobile phone were lost. That means, during
the cross examination, PW1 has no case that the assailants robbed his wrist
watch and mobile phone. However, according to PW3, the assailants robbed
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the wrist watch of PW1 worth Rs.2,000/- and also mobile phone worth
Rs.4,500/-.
12. While according to PW1, he could not identify the assailant, who
beat him, according to PW2, the police arrested the accused persons, brought
them to the police station and told them that they are the assailants. Even
then, PW2 could not properly identify the accused. While according to PW3,
the 3rd accused attacked him with a Jacky-liver like weapon, during the cross
examination he stated that the weapon used was an iron rod with round shape.
It is interesting to note that the weapon produced in this case is an iron rod
and during the examination of PWs1 to 3, the same was neither shown to
them, nor got them identified. According to PW14, the investigating officer,
MO1 iron rod was produced by the witness CW4 and the same was certified
by PW8 also. Since MO1 was not identified by PWs 1 to 3, there is nothing
to connect MO1 with the alleged incident.
13. According to PW1, his driver informed the police and immediately
the police party came to the spot and took them along with the accused
persons and the lorry to the police station. According to PW2, though PW1
informed the police, they did not come and when they were at the police
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station, the police party arrested the accused persons, brought them and
informed them that they are the assailants. The version of PW3 is that the
police came at the spot and took the accused persons also along with them, to
the police station. His version is to the effect that though the police took
them as well as the accused persons to the police station, the lorry was not
taken to the police station.
14. PW4 was a Police Constable, who accompanied PW14 to
Ramanattukara taxi stand where the incident occurred. According to him,
when he along with the Sub Inspector reached the spot, the lorry was seen
parked, blocking the jeep. Therefore, as per the evidence of PW4, when the
police party reached the place of incident, the lorry was very much available,
at the spot. However, the version of PW14, the investigating officer, is to the
effect that, when he reached the spot, the lorry was not there and later on, it
was produced before him by PW10, the owner of the lorry on 17.7.2006.
However, according to PW6 and 10, attestors to Exhibit P3 seizure mahazar
for the lorry, the lorry was seized by police from the house of PW10, the
owner of the lorry.
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15. The version given by PW4 is to the effect that, when they
reached the place of incident, PWs 1 and 3 were not present, but the accused
persons were present there. The claim of PW14 is that he had arrested the
accused persons on 5.7.2006 at 3 p.m. On a perusal of the evidence of PWs 1
to 4 and 14, it can be seen that their evidence are contradictory to each other
on several material points. Further, PW14 would swear that, during the
investigation, he could not trace out the watch as well as the mobile phone of
PW1. Further according to him, he could not even identify the number of the
mobile phone lost by PW1.
16. From the evidence of PW14, it is revealed that the place of
occurrence is at Ramanattukara Junction, in front of the taxi stand. He also
admitted that, near the place of incident, there was Forest Check-post as well
as Police Aid-Post. Even then, PW14 could not find out any independent
witnesses, who had witnessed the incident. Since the allegation is that, at a
busy junction, in broad day light, PWs1 and 3 were attacked by the assailants
after blocking their jeep using a lorry, the evidence of PW14 that, nobody else
including the Policemen in the Police Aid Post or the staff in the Forest
Check-post have seen the said incident, is surprising and also unbelievable.
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17. The version given by PW3 is an exaggerated one, when
compared to the evidence of PW1. PWs 1 and 2 could not properly identify
the accused persons before the court. It is true that, PW3 identified the
accused persons, before the court. According to him, the 3 rd accused attacked
him with a Jacky-liver like weapon. However, later on he changed his
version and stated that the weapon used was an iron rod with round shape. As
already stated, MO1 in this case was produced before the investigating officer
by a witness, who was not examined and it was not identified by any of the
witnesses.
18. PW9 was the Assistant Surgeon, General Hospital, Kozhikode,
who had examined PWs 1 and 3 and issued Exhibit P5 and P6 wound
certificates. The alleged cause given by them to PW9 was that they were
assaulted by the driver and two other persons, who came in the lorry.
However, according to PW14, during investigation, he could not find out the
driver of the lorry. Therefore, it appears that the driver of the lorry involved in
the incident was not made an accused in the case. As per the evidence of
PWs 1 to 3, the driver of the lorry had a major role in the commission of the
offence. It was he who sped away the lorry, while transporting granite in the
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morning, when signal was given to stop. Thereafter the assailants came in the
same lorry in the afternoon, allegedly chased the jeep and stopped the same at
Ramanattukara Junction, across the jeep. As per the evidence of PWs 1 to 3, it
was thereafter three persons came out of the lorry and attacked PW1 and 3. In
the above circumstances, the role of the driver of the lorry in the commission
of the offence could not be doubted. In spite of reaching the spot
immediately after the incident and thereafter seizing the lorry, PW14 had no
qualm in deposing before the court that he could not identify the driver of the
lorry, who had a major role in the commission of the offence.
19. According to PW4, the Police Constable who accompanied
PW14 to the place of occurrence immediately after the incident, when he
along with PW14 reached the spot, the lorry was seen parked, blocking the
jeep. It appears that, in spite of that, the lorry was not seized at once, but later
on it was caused to be seized from the residence of its owner. The above
conduct of PW14 can never be a bonafide one. The above conduct of PW14,
in the light of the alleged history given to PW9 and the evidence of PWs1 to
4, casts serious doubt in the manner in which investigation was conducted in
this case.
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20. As per the charge, all the assailants together robbed PW1 and
assaulted him. According to PW1, only one person beat him, while according
to PW3, the 3rd accused beat him with a weapon and the other three persons
assaulted him as well as PW1 using their hands. If all the three assailants beat
PW1, he would not have deposed that only one of them beat him. Therefore,
the evidence of PW1 that he was beat by one of the assailants alone, can be
the correct version. In that case, it is to be held that the evidence of PW3 is
not at all believable. PW1 could not identify the person who beat him. In the
above circumstance, the evidence of PW3 identifying the assailants before the
court also could not be believed. Moreover, according to PW2, the police
arrested the assailants and brought before the Police Station and told them
that they are the assailants. In the light of the above circumstance, I am
constrained to hold that the prosecution could not prove the charge against the
accused persons beyond reasonable doubt and as such, this revision petition is
liable to be allowed.
21. In the result, this revision petition is allowed. The impugned
judgment of conviction and sentence passed by the Sessions Judge,
Kozhikode in Crl. Appeal No.253 of 2014, as against the revision petitioners
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are set aside. The accused/revision petitioners are acquitted under section
386 (b)(i) Cr.P.C. They are set at liberty, cancelling their bail bonds.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
