Aneesh. N vs State Of Kerala

The revision petitioner was the 1st accused in CC No.131 of 2005 on the file of the Judicial First Class Magistrate Court, Koothuparamba and the appellant in Crl.Appeal No.383 of 2006 on the file of the Additional Sessions Court (Adhoc 1), Thalassery. The offences alleged against the accused are punishable under Sections 143, 147, 447, 452, 435 r/w 149 of the Indian Penal Code.

The prosecution case in brief is that on 01.02.2001 at about 9.30 p.m at Thrikadaripoli of Thalombra amsom, the accused 1 to 7 who are sympathizers of Communist Party of India (Marxist) (CPIM) formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting due to political enmity and in prosecution of their common object, trespassed in the court-yard of PW5's house, who is a sympathizer of the Bharathiya Janatha Party (BJP). It is further alleged that the accused kicked the door of the house and then the 1st accused set fire to the autorickshaw bearing registration No.KL 11/7124 and the other accused broke window glass of the autorickshaw with sticks and thereby PW5 sustained a loss of Rs.30,000/-. Hence, the accused alleged to have committed the aforesaid offences.

During the trial of the case, PWs 1 to 6 were examined and marked Exts.P1 to P4 and MOs 1 and 2 on the side of the prosecution. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. However, no defence evidence was adduced on their side.

Challenging the conviction and sentence, the 1st accused along with the 5th accused preferred Crl.Appeal No.383 of 2006 before the Additional Sessions Court (Adhoc 1), Thalassery. By its judgment dated 28.01.2012, the learned Additional Sessions Judge allowed the appeal in part and accordingly the revision petitioner was convicted and sentenced for the offence under 447, 435 r/w 34 of the IPC. However, the revision petitioner/1st accused was found not guilty for the ofences under Section 143, 147 r/w 149 of the IPC and accordingly, he was acquitted thereunder. During the pendency of the appeal, the 5th accused, who preferred the appeal along with the revision petitioner passed away. Hence, the case against him stood abated.

PW3 initially lodged Ext.P1 FIS before police against accused seven in number for the offence punishable under Section 143, 147, 447, 452, 435 r/w 149 of the IPC. Pursuant to the summons issued by the trial court all the accused except A1 and A5 entered appearance. The accused 1 and 5 were reported absconding and hence the case against them was split up for trial. The trial court proceeded as against the remaining accused and ultimately convicted and sentenced the 2nd accused. However, A3, A4, A6 and A7 were acquitted. Challenging the conviction and sentence, the 2nd accused preferred Crl.Appeal No.253 of 2005 before the Additional Sessions Court (Adhoc III), Thalassery. By judgment dated 06.08.2010, the learned Additional Sessions Judge found the 2nd accused not guilty of the offences alleged and accordingly he was acquitted. Subsequent to the judgment in Crl.Appeal No.253 of 2005, A1 and A5 surrendered before the trial court. The trial court framed charge against the accused for the offences punishable under Section 143, 147, 447, 452, 435 r/w 149 of the IPC. After trial, on appreciation of the evidence, the trial court found that the accused 1 and 5 were not guilty for the offence under Section 452 of the IPC and accordingly they were acquitted thereunder. However, the accused 1 and 5 were convicted for the offences punishable under Section 143, 147, 447, 435 r/w 149 of the IPC. In appeal, the appellate court found that the 1st accused was not guilty for the offence under Section 143, 147 r/w 149 of the IPC. Hence, he was acquitted thereunder. In modification of the conviction and sentence imposed by the trial court, the appellate court maintained the conviction and sentence against the 1st accused for the offence punishable under Section 447 and 435 of the IPC with the aid of Section 34 of the IPC.

Heard, Sri.C.P.Peethambaran, the learned counsel for the revision petitioner and Sri.Chandrasenan.D, the learned Senior Public Prosecutor for the State.

The learned counsel for the revision petitioner contended that the evidence let in by PWs 3 and 4 are unreliable as they are closely related.

According to the learned counsel for the revision petitioner, Ext.P1 scene mahazar prepared by PW2, the Head Constable who has conducted a part of investigation would inter alia show that PWs 3 and 4 were not able to actually witness the occurrence from the nearby house. It is further contended that all other accused except A1 Were acquitted finding not guilty. According to the learned counsel for the revision petitioner, the occurrence took place at night and the source of light was not proved in evidence.

Refuting the contentions of the learned counsel for the revision petitioner, the learned Public Prosecutor submitted that the trial court and the appellate court concurrently held that the accused committed the offences punishable under Section 447 and 435 of the IPC. Elaborating on the submission, the learned Public Prosecutor submitted that the findings of the trial court and appellate court are reasonable and no interference in revision is warranted. It is further submitted that sitting in revision, the revisional court is not justified in interfering with the concurrent findings of fact unless the findings are perverse in nature.

PW5 is none other than the husband of PW3.

PW4 is their daughter. According to PWs 3 and 4, they are followers of the BJP and the accused are the sympathizers of CPI(M). Both the political parties have long term enmity due to political and empirical reasons. According to PW3, on 01.02.2001 at 9.30 p.m, all the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object criminally trespassed into her house and set fire to an autorickshaw parked infront of her house. PWs 3 and 4 were present at the time of occurrence whereas, PW5 was not in station. PWs 3 and 4 stated that the accused were in search of PW5 due to political reasons and wanted to do away with him. PWs 3 and 4 stated that they had trespassed into the house and kicked on the door in search of PW5. It is their case that the 1st accused set fire to the autorickshaw owned by PW5 infront of their residence. PW3 lodged Ext.P2 complaint before police on 02.02.2001 at 10 a.m whereupon, the police registered Ext.P3 FIR. The main grievance of PW3 is that the autorickshaw bearing registration No.KL11/7124 was owned and possessed by her husband. It was parked infront of her house on the date of occurrence. According to her, the accused set fire to the said autorickshaw at 9.30 p.m at night. Since the occurrence took place at night, it was the duty of the prosecution to prove the source of light to witness the occurrence. Going by Ext.P1 mahazar, there is nothing to indicate that electric light was present infront of the house. PWs 3 and 4 stated that they had occasion to see the 1st accused from the light emanated from the fire. In Ext.P1 complaint, the source of light was not divulged. The sum and substance of the complaint is narrated by PW3. It does not contain the source of light. PWs 3 and 4 stated that immediately the accused 1 to 7 entered into the house and when the accused started threatening them, they had left the premises through the kitchen door and took asylum at the residence of one of their relatives. Ext.P1 mahazar narrates the details of the nearby houses where the alleged occurrence took place. However, the house where PWs 3 and 4 took asylum has not been described in Ext.P1 mahazar. It appears from the facts and circumstances that the autorickshaw was parked infront of the house whereas PWs 3 and 4 left the premises through the back portion of the house. Mere statement that they had occasion to witness the occurrence from the nearby house itself is not sufficient especially when the occurrence took place at night. The reason alleged is political in nature and there is every chance of implicating innocent persons as accused in this case. Unless and until clear cut evidence is adduced to prove the identity of the accused, mere suspicion is not a substitute to prove the identity of the accused. In fact the identity of the accused has not been established from the attending circumstances involved in the case including Ext.P1 mahazar prepared by the investigating officer during the investigation.

It is a fact that all the persons were charged for the offence relating unlawful assembly including rioting. There is nothing on record to show that all the persons were armed with deadly weapons for the purpose of rioting on the date of occurrence. All other accused were acquitted after a full-fledged trial. The 1st accused alone was convicted. So far as the 1st accused is concerned, no reliable evidence is adduced to substantiate that he had actually committed the offence punishable under Section 435 of the IPC. To sustain conviction under Section 435 of the IPC it is necessary on the part of the prosecution to prove that the accused in fact committed mischief by fire intending to cause damage to any property to the amount of one hundred or upwards. In the case on hand, PW5, the husband of PW3, who was not available in station at the time of occurrence deposed that he had sustained a loss of Rs.30,000/- on account of the occurrence. However, he failed to prove that he was the owner of the autorickshaw in question on the date of occurrence. Apart from the oral evidence of PWs 3 and 4, no reliable evidence was adduced to prove the factum of ownership over the autorickshaw involved in the case. When it comes to mischief by fire and consequent damage, it is necessary to prove the ownership of the property destroyed by fire. The ownership has not been established. In view of the facts and circumstances involved, this Court is of the view that the prosecution has not succeeded in proving the offence punishable under Section 447 and 435 of the IPC as against the 1st accused. The two courts below analysed the evidence without considering the fact that the occurrence took place at night and that PWs 3 and 4 left the residential house to the house of one their relatives and they had no occasion to witness the occurrence.

Judged by the above standards, this Court is of the view that the conviction and sentence imposed by the trial court, which has been confirmed in appeal are liable to be set aside.

In the result, these revision petition is allowed. The revision petitioner/1st accused is found not guilty of the offences under Sections 435 and 447of the IPC, and accordingly he is acquitted thereunder. Cancelling his bail bond this Court directs that he be set at liberty. If any fine amount is deposited by the accused during the pendency of the revisional proceeding before the trial court, pursuant to an interim order issued by this Court, the same shall be re-funded to the revision petitioner/1st accused, in accordance with law. Pending applications, if any, stand disposed of.