Kerala High Court
N.Sabith vs State Of Kerala on 7 November, 2024
1
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024/16TH KARTHIKA, 1946
CRL.REV.PET NO. 212 OF 2015
AGAINST THE CONVICTION AND SENTENCE IN C.C. NO.261/2008 OF
JUDICIAL FIRST CLASS MAGISTRATE, VATAKARA DATED 27.03.2014 AND
THE JUDGMENT IN CRL.APPEAL NO.290/2014 DATED 17.7.14 ON THE FILE
OF THE SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES), KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:
ISMAYIL
S/O. ABDULLA, MANAYALATH HOUSE,
PONMERY PARAMBIL P.O., PERAKKOOL,
VADAKARA, KOZHIKODE DISTRICT.
BY ADVS.
SRI.SALIM V.S.
SRI.P.V.JEEVESH
SRI.H.NUJUMUDEEN
SRI.SHANAVAS.S
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
ADV.SRI.C.N. PRABHAKARAN.- SR .P.P
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 07.11.2024, ALONG WITH CRL.REV.PET.1741/2014, 1766/2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.REV.PET NO. 1741 OF 2014
AGAINST THE COMMON JUDGMENT IN CRA NO.267 OF 2014 OF
SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES) KOZHIKODE ARISING
OUT OF THE JUDGMENT IN CC NO.261 OF 2008 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, VADAKARA
REVISION PETITIONER/APPELLANT/ACCUSED NO.2:
N.SABITH
S/O.ASEES, NELLIYOTTE HOUSE,
PONMURI PARAMBIL, PARAKOOL,
KOZHIKODE DISTRICT.
BY ADV SRI.K.RAKESH ROSHAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE GOVT.PLEADER,
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 07.11.2024, ALONG WITH CRL.REV.PET.212/2015 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.REV.PET NO. 1766 OF 2014
CRIME NO.1330/2008 OF VADAKARA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 17.07.2014 IN CRA NO.273 OF
2014 OF SPECIAL ADDITIONAL SESSIONS JUDGE (MARAD CASES) KOZHIKODE
ARISING OUT OF THE JUDGMENT IN CC NO.261 OF 2008 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, VADAKARA
REVISION PETITIONER/APPELLATN/3RD ACCUSED:
NASAR
AGED 38 YEARS
S/O. AMMED, THIRUVANGOTH KUNIYIL HOUSE,
PONMERI PARAMBIL P.O., VILLIAPPALLY,
VATAKARA TALUK, KOZHIKODE.
BY ADV SRI.SANTHARAM.P
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 07.11.2024, ALONG WITH CRL.REV.PET.212/2015 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
4
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
P.G. AJITHKUMAR, J
-------------------------------------------------
Crl. Rev. Pet. Nos.1741 of 2014, 1766 of 2014
& 212 of 2015
-------------------------------------------------
Dated this the 07th day of November, 2024
ORDER
Petitioners along with one Mohammed stood trial before the
Judicial Magistrate of the First Class, Vadakara, in C.C. No.261 of
2008. They were indicted for the offences punishable under
Sections 448, 427, 506(1) and 294(b) read with Section 34 of
the Indian Penal Code, 1860. The trial court convicted the
petitioners for the offences punishable under Sections 448 and
427 of the IPC. Each of them filed appeals. The appeals, Crl.
Appeal Nos.267 of 2014, 273 of 2014 and 290 of 2014 were
heard together by the Special Additional Sessions Judge (Marad
Cases), Kozhikode and as per a common judgment dated
17.07.2014 conviction and sentence were confirmed. Hence,
they filed these revisions petitions.
2. Heard the learned counsel for the respective
petitioners and the learned Public Prosecutor.
3. The prosecution was launched with the following
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
allegations:
PW1 was the resident of house bearing door No.2/355A
situated at Perakkool. Her children, including PW2 were also
residing along with her in the house. Petitioners were on inimical
terms with them. At about 7.30 p.m. on 03.03.2008 petitioners
and the 4th accused in furtherance of their common intention
criminally trespassed into the said house. They smashed off the
windowpanes of the house, electric bulbs and pushed down the
television and tape recorder kept inside. They abused PW1 and
threatened her also.
4. On the said charge, a trial took place. PWs 1 to 6
were examined and Exts.P1 to P6 were marked on the side of
the prosecution. MOs 1 to 5 were identified as well. The defence
set up by the petitioners was that such an incident did not occur.
No defence evidence was let in.
5. The trial court considered the evidence in detail.
Several contradictions, exaggerations and embellishments were
said to have occurred in the evidence of PWs1 and 2 who
deposed about the incident. The trial court held by relying on the
law laid down by the Apex Court in Lal Bahadur v. State of
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
N.C.T of Delhi [2013 (4) SCC 557] that the contradictions and
inconsistencies pointed out by the petitioners did not have the
effect of brushing aside the evidence of PWs 1 and 2. It was
further held that on the material particulars their evidence was
cogent and consistent. In the light of the attending
circumstances that evidence was acted upon to find that the
offences punishable under Sections 448 and 447 of the IPC were
proved. Accordingly, the petitioners were found guilty for those
offences.
6. The Appellate Court re-appreciated the evidence and
did not find sufficient reasons to interfere with the findings of the
trial court. The Appellate Court placed reliance on the proposition
of law laid down by the Apex Court in Balachandran v. State
of Tamil Nadu [2012 (12) SCC 701] in order to hold that the
discrepancies and inconsistencies pointed out in the evidence of
PWs 1 and 2 were insufficient to discredit them altogether.
Accordingly, the conviction and sentence were confirmed.
7. The contentions of the learned counsel for the
petitioners are similar. It is submitted that the delay occurred in
launching the prosecution although not inordinate, in the peculiar
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
circumstances of this case, is fatal. Police personnel came to the
spot immediately after the incident, but no crime was registered
despite their getting information regarding such a cognizable
offence. The prosecution did not offer any explanation for that
flaw. The admitted case of PWs 1 and 2 is that they were inside
the house and therefore there was no possibility for them to see
and identify the assailants. The presence of PW2 in the house is
quite doubtful since the initial version of PW1 was that PW2 was
at the family house from where only he informed the police. That
necessitates discarding the evidence of PW2 insofar as his
identification of the assailants is concerned. No witness deposed
categorically that any of the assailants entered inside the house.
No independent witness, though available, has been examined
by the prosecution. Even the mother and daughter of PW1, who
were cited to depose about the incident were given up. It is
urged that the cumulative effect of the said flaws in the evidence
obligate to discard the prosecution case, but in disregard of all
those aspects the courts below took the view that evidence of
PWs 1 and 2 was trustworthy. The said finding in the
aforementioned circumstances is totally perverse and according
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
to the learned counsel for the petitioners, the impugned
judgments are liable to be set aside on the grounds of illegality,
impropriety and irregularity.
8. The learned Public Prosecutor, on the other hand,
would submit that the inconsistency pointed out are only minor
in nature and even accepting that the police personnel reached
the place of occurrence immediately after the incident, failure to
register a crime was for sufficient reason. PW1 did not give a
statement regarding the incident soon. When on the very next
day a complaint was lodged and a crime was registered, the
aforesaid flaw cannot be a reason to fail the prosecution. It is
further submitted that none of the grounds set forth by the
petitioners spell out any perversity, impropriety and illegality in
the concurrent findings of the courts below and therefore, this is
not a case where the revisional jurisdiction of this Court under
Section 401 of the Code can be invoked to set at naught the
conviction.
9. PW1 is the mother and PW2 is her son. They alone
deposed about the incident, which occurred at about 7.30 p.m.
Going by the version of PWs 1 and 2, the incident lasted for a
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
long duration. What they stated is that at about 7.30 p.m., the
petitioners and the 4th accused came there with weapons,
threatened them and committed the mischief. Continued for
quite a long period and only on knowing that the police
personnel were coming they left. If so, there would have been
enough witnesses who could have deposed before the court
about the incident. No such person was cited by the prosecution.
Even the mother and the daughter of PW1 cited as witnesses
were not examined. Therefore, there is inadequacy in the
investigation and prosecution. The question then is, whether for
those reasons the evidence of PWs 1 and 2 is liable to be
discarded.
10. As rightly pointed out by the learned Public
Prosecutor, unless the findings of the courts are perverse or
totally against the evidence, this Court cannot interfere with
those findings in the exercise of revisional jurisdiction. The
power of revision under Section 401 of the Code is not wide and
exhaustive. The High Court in the exercise of the powers of
revision cannot re-appreciate evidence to come to a different
conclusion, but its consideration of the evidence is confined to
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
find out the legality, regularity and propriety of the order
impugned before it. When the findings rendered by the courts
below are well supported by evidence on record and cannot be
said to be perverse in any way, the High Court is not expected to
interfere with the concurrent findings by the courts below while
exercising revisional jurisdiction. [See: State of Kerala v.
Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC
452; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke (2015) 3 SCC 123; Kishan Rao v. Shankargouda
(2018) 8 SCC 165].
11. If police personnel reached the spot immediately after
the incident, considering the nature of the offences involved, a
crime should have been registered. A cognizable offence was
certainly revealed. Both PWs 1 and 2 deposed that the police
reached the spot. Of course, the learned counsel for the
petitioners has a contention that the said fact was not confirmed
by PW6, the investigating officer and therefore the version of
PWs 1 and 2 in that regard cannot be believed. I am unable to
agree with the said submission. PWs1 and 2 categorically stated
that police reached the place and on knowing that the assailants
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
left the scene. They were not cross examined on that aspect.
Therefore, the fact that the police came soon after the incident
stands proved. The said aspect goes a long way in support of the
version of PWs 1 and 2 that such an incident occurred.
12. Of course, there was delay and inconsistencies in the
versions of PWs 1 and 2. The submissions of the learned counsel
for the petitioners that the said witnesses exaggerated the
incident has substance. However, regarding the core of the
allegations that the assailants came in front of the house and
committed mischief by smashing off the windowpanes and
electric bulbs is consistent. After appreciating the evidence in
detail and considering the impact of such inconsistencies in the
light of the law laid down by the Apex Court in the decisions
referred to above took the view that the evidence of PWs 1 and 2
to the extent of the assailants' entry to the property of PW1 and
commission of the mischief can be believed.
13. Going by the versions of PWs 1 and 2, it is impossible
to find that any of the assailants entered the house. The
consistent version of PWs 1 and 2 is that the doors were closed.
They deposed that they did not open the door. They have no
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
2024:KER:84578
case that the assailants forcibly opened the doors. Therefore,
there is absolutely no evidence to show that any of the assailants
entered inside.
14. The remaining question is whether inserting a stick so
as to push down the television and other articles inside amounts
to an offence of house trespass. Even regarding such an act, the
evidence is not consistent. PW1 deposed that the television was
pushed down and thereby it broke down. But, in Ext.P2 scene
mahazar, there is no description to the effect that the television
was broken, although it was noticed that the television fell down.
Therefore, the facts noticed in Ext.P2 go against the version of
PW1 that the assailants pushed down the television by inserting
some objects and broke it. Therefore, the finding of the courts
below that the assailants committed house trespass is without
any evidence. The said finding cannot be sustained. It follows
that the conviction under Section 448 of the IPC is not legal.
Accordingly, I find that the petitioners are liable for conviction for
the offences punishable under Sections 447 and 427 of the IPC.
15. The learned counsel for the petitioners pointed out
that the trial court convicted the petitioners under Sections 448
Crl. Rev.Pet. Nos.1741 of 2014
1766 of 2014 & 212 of 2015
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and 427 without considering the scope of invocation of Section
34 of the IPC. True, the trial court committed an error in that
regard. Applicability of Section 34 of the IPC was not considered,
but the proved facts certainly indicate that the persons reached
the house in furtherance of their common intention. Therefore, a
conviction for the offences under Section 447 and 427 of the IPC
with the aid of Section 34 of the IPC is very much legal and
possible.
Accordingly, these revision petitions are allowed in part.
The conviction is altered as aforementioned. Having considered
the nature of the offence, the delay occasioned and the fact that
the persons hail from the same locality, I am of the view that the
sentence of imprisonment can be avoided. The petitioners are
convicted for the offences punishable under Sections 447 and
427 of the IPC. Each of them is sentenced to pay a fine of
Rs.5,000/- for the offence under Section 427 of the IPC and
Rs.500/- under Section 447 of the IPC. In default of payment of
fine, each of the petitioners has to undergo simple imprisonment
for a period of one month and seven days respectively. In the
event of realization of fine an amount of Rs.15,000/- shall be
Crl. Rev.Pet. Nos.1741 of 2014
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paid to PW1 as compensation. If any of the petitioners already
deposited any amount towards fine or as security the same can
be appropriated towards the fine.
Sd/-
P.G. AJITHKUMAR
JUDGE
SMF
