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Against The Order/Judgment In … vs By Advs.Sri.B.Mohanlal on 29 June, 2011

Kerala High Court Against The Order/Judgment In … vs By Advs.Sri.B.Mohanlal on 29 June, 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MRS.JUSTICE K.HEMA

FRIDAY, THE 1ST DAY OF JULY 2011/10TH ASHADAH 1933 CRL.A.No. 1569 of 2003 ( )

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AGAINST THE ORDER/JUDGMENT IN SC.279/2000 of ADDL.DISTRICT COURT (ADHOC), ALAPPUZHA

AGAINST THE ORDER/JUDGMENT IN CP.35/1998 of J.F.C.M. COURT, KAYAMKULAM IN CRIME NO.142/98 OF THE KAREELAKULANGARA POLICE STATION APPELLANTS/ACCUSED 1 & 2:

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1. PRASAD, S/O.KUNJUMON,

KOCHUTHARAYIL VEEDU,

KANICHANELLOOR MURI,

CHEPPAD VILLAGE,

ALAPPUZHA DISTRICT.

2. PRADEEP, S/O. SIVARAMAN,

KUTTIPADEETTATHIL VEEDU,

KANICHANELLOOR MURI,

CHEPPAD VILLAGE,

ALAPPUZHA DISTRICT.

BY ADVS.SRI.B.MOHANLAL

SRI.JEEVAN JOHN

SMT.MEREENA JOSEPH

RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY

THE SUB INSPECTOR OF POLICE,

KAREELAKULANGARA POLICE STATION,

ALAPPUZHA DISTRICT THROUGH THE

PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY SRI.NIKHIL SANKAR,AMICUS CURIAE

PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-07-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J.

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Crl.A No. 1569 of 2003

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Dated this the 29th June, 2011

J U D G M E N T

Appellants are accused nos.1 and 2 in a Sessions Case. They were tried along with accused Nos. 3 to 7 by the Additional Sessions Court for offences under Sections 8 and 55 (g) of Abkari Act and Sections 143, 147, 148, 506, 353 and 149 of Indian Penal Code (‘IPC’ for short). After the trial, accused nos.1 and 2 alone were convicted for offences under Sections 143, 148, 353 and 506 of Indian Penal Code.

2. The appellants were also sentenced to undergo rigorous imprisonment for 3 (three) months under Section 143 IPC, rigorous imprisonment for 1 (one) year under 148 IPC, rigorous imprisonment for 1 year and a fine of Rs.2,000/- (Two thousand only) each under Section 353 IPC and rigorous imprisonment for 1 year under Section 506 IPC. Substantive sentence of imprisonment was ordered to run concurrently and in default of payment of fine, accused was sentenced to undergo rigorous imprisonment for a Crl.A No. 1569 of 2003

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further period of two months. Set off was also allowed.

3. According to prosecution, on 26.5.1998, while PW1, the Excise Inspector, attached to the Haripad Excise Circle Office was on patrol duty along with PW2, the Excise Guard and others, they found a tin containing liquid jaggery and also 750 ml of arrack in a paddy field near the house of the accused. The articles were seized under a mahazar and they proceeded further on patrol duty.

4. While so, appellants along with co-accused formed themselves into an unlawful assembly, with common object of attacking PW1 and other officials, they committed rioting armed with deadly weapons like sword stick, cycle chain, axe, iron rod etc. They also criminally intimidated the officials and threatened PW1 and party by showing deadly weapons. They committed the above acts with intend to prevent and deter PW1 and party from discharging their duty as public servants and thereby, committed offence under Section 353 of IPC.

5. On seeing the unlawful assembly and on hearing from them that PW1 and others would be attacked, whistle Crl.A No. 1569 of 2003

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was blown and another excise party and police party which were engaged in patrol duty in the nearby locality came running to the rescue of the officials. First and second accused were arrested from the the spot and MO1 and MO2 were seized from their possession. Mahazar was prepared and report was also prepared by PW1 based on which, a crime was registered at the police station. After investigation, appellants were charge-sheeted along with other accused.

6. PWs 1 to 9 were examined and Exts.P1 to P7 and MO1 to MO5 were marked on the side of the prosecution. Accused did not adduce any evidence. According to accused (as seen from the cross-examination) some contraband articles were seized from paddy field and the officials made an attempt to falsely implicate innocent persons in Abkari case. Hence there was a hue and cry and some protest was also made (in the locality). Hence as shield, excise party falsely charge sheeted the accused in this case by making false allegations.

7. The trial court found that prosecution proved that Crl.A No. 1569 of 2003

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accused 1 and 2 committed offences under Sections 143, 147 148, 353 and 506 Part (i) of IPC. No separate conviction was found necessary under Section 147 IPC as they are convicted under Section 148 IPC. Accused nos. 3 to 7 were not proved to be members of the unlawful assembly to which accused nos.1 and 2 belonged and they were acquitted of all the offences. All accused were also acquitted of offences under the Abkari Act.

8. Heard both sides. Since certain questions of law were involved, Sri. S.Nikhil Sankar was appointed as amicus curiae to assist the court. Perused the records. Learned counsel for appellant argued that accused cannot be convicted for offence under Section 506 IPC, since no injury was caused. There was no threat. It is also argued that prosecution failed to prove that an abkari offence was detected on that day and hence motive to commit offence under Section 353 IPC against the officials is absent.

9. Learned defence counsel also argued that appellants cannot be convicted under Section 143 of Indian Penal Code since the other accused were acquitted. He also Crl.A No. 1569 of 2003

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cited decisions in support of his contentions. Learned Public Prosecutor argued that mere acquittal of co-accused is not a ground to hold that the appellants have not committed offence under Section 143 or there was no unlawful assembly. The following decisions were cited in support of his contentions.

10. Bikau Pandey & Others Vs. State of Bihar [AIR 2004 SC 997], Kam Dular Rai & Others Vs. State of Bihar [AIR 2004 SC 1043], Bokajan Cement Corporation Employees Union Vs. Cement Corporation of India Ltd [ AIR 2004 SC 245], Joshy Vs. State of Kerala [ 2005 (1) KLT SN CASE NO.99] and Shaji Vs. State of Kerala [ 2005 (3) KLT 127]

11. Learned amicus curiae also supported the view expressed by the learned Public Prosecutor and cited the decisions of the Constitution Bench of the Supreme Court in Mohan Singh & Anr. Vs. State of Punjab [AIR 1963 SC 174] to argue that the mere acquittal of co-accused for offence under Section 143 is not a reason to hold that there was no unlawful assembly.

Crl.A No. 1569 of 2003

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12. It was argued by the learned Public Prosecutor and learned amicus curiae that on an overall appreciation of evidence, it would be clear that there was a threat and the acts of the accused had caused PW1 and others even to blow whistle to attract attention of other officials who come running to the scene. Therefore there was enough evidence and circumstances to attract the offence under Section 506 (1) IPC, it is argued.

13. Threat need not be by words and no criminal force need be used to constitute offence under Section 506 of Indian Penal Code, it is strongly contended. Learned amicus curiae also argued that offence under Section 353 IPC will not be attracted since there is nothing in evidence to show that Excise officials were on duty. Only if a “public servant” is deterred from discharging his official duty, offence under Section 353 IPC will be attracted.

14. On hearing both sides and on going through the evidence adduced in this case, it is clear that several officials from different offices are examined in this case. PW1, the Excise Inspector attached to Haripad Circle Office Crl.A No. 1569 of 2003

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and PW2 is an Excise Guard attached to the same office. PW4 is also an Excise Guard attached to the same office. PW5 is the Excise Range Inspector in Karthikappally Excise Range. PW6 is also a Preventive Officer attached to Karthikappaly Range who had accompanied PW1 even though he is attached to Karthikappally Range. PW7 is the Assistant Sub Inspector from Kareelakulangara Police Station who was also examined to prove the occurrence.

15. According to PW1, on 26.5.1998, he was on patrol duty along with the staff of the Haripad Circle Officer and also the staff of Karthikppally Range Office. At Muttam, the A.S.I. of Harippad and A.S.I. of Kareelakulangara joined them and they went for a raid in Kanichanellur. On reaching there, they got divided into three parties and PW1 and his party found a liquid jaggery tin and a bottle of arrack containing 750 ml. of arrack. It was found in a paddy field situated on the southern side of the second accused. Those articles were seized under a Mahazar Ext.P1.

16. PW1 further stated that when they were returning Crl.A No. 1569 of 2003

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from the above place appellants along with 5 others came from north to south and they were armed with weapons like sword stic, axe, cycle chain etc. They came bawling “keep the jaggery tin back’. When a situation arose that they would be attacked, they sounded whistles for alerting the other Excise party and the police party. Hearing the whistles they came running to the plot. On seeing them accused, except the appellants, other escaped by jumping into the channel situated on the eastern side. First accused was carrying MO3 and accused no.2 had MO4 axe in his hand. They were arrested from the spot and report was given by PW1 to the Sub Inspector Kareelakulangara Police Station which is Ext.P2.

17. PWs.2 to 7 were examined to prove the incident. PW3 is the sole independent witness but he turned hostile to the prosecution. He supported the defence version of seeing the incident. He deposed that female members and the children in the locality cried aloud. He did not see any of the the accused being arrested. When he enquired about the incident,he understood that parents of appellants were Crl.A No. 1569 of 2003

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making a hue and cry, since the police arrested appellants, following altercation between the police and the accused.

18. According to accused, they did not commit any acts as alleged. But, there was only an altercation between people of the locality and the Excise party. They were trying to implicate innocent persons in the abkari case relating to the article seized on the date of occurrence. Since the only independent witness turned hostile, the evidence of the officials requires strict scrutiny. The defence case of the accused is that the second incident did not occur at all. According to them, some seizure was effected and there was an attempt on the part of the officials to falsely implicate appellants, who are innocent person, and this was protested against and hence they were taken into custody and no incident, as alleged by the prosecution, occured at all.

19. In the nature of the defence set up, it is necessary to look into whether an incident happened, as alleged by the prosecution. In the charge framed by the court, it is not stated where exactly the incident happened. Crl.A No. 1569 of 2003

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As per Section 212 of the Cr.P.C, it is mandatory for court to state place of occurrence in the charge. This is specially so, since going by the allegations made by the prosecution, two incidents happened at different places.

20. As per the charge submitted by the police, the incident happened in a pathway. As per the evidence of PW9, the investigating officer and Ext.P4 scene mahazar also the incident happened in a pathway. PW9, the Sub Inspector, who prepared he scene mahazar, in cross- examination stated that the place of occurrence (in second incident) is lying 750 metres away from Karippuzha bridge. PW5, who is the Excise Inspector attached to Karthikappally Excise Range, who rushed to the spot on hearing the whistle, stated that the distance to the place of occurrence from Karippuzha bridge was only 300 metrs.

21. PW6, the Preventive Officer attached to Karthikappilly Range stated that the incident happened about 600 metres away from the Karippuzha bridge. The other witnesses have not stated the distance but their evidence is also inconsistent with various other details. Crl.A No. 1569 of 2003

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PW1 deposed that the incident happened when they reached at a distance of 150 metres from the place of first incident, whereas the PW2 stated that the incident happened when they reached 25 metres away from the first place of incident.

22. Regarding the nature of place of occurrence, the prosecution alleges that it is a pathway, but PW1 deposed that it was a bund and on its western side there is paddy field and on the eastern side, there is a channel. But PW2 in the cross-examination, specifically sated that on the western side there was no paddy field but it was a landed property PW4 deposed that the incident happened in a bund and from his evidence it appears that it was lying between two paddy fields.

23. While some of the witnesses stated that by the side of the place of occurrence, there was thick growth of bushes, some others stated that only on the eastern side there was any growth. Thus, there is no clear picture of where actually the incident happened. The evidence of witness is contradictory and inconsistent with each other Crl.A No. 1569 of 2003

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regarding the distance, the nature and also lie of the place of occurrence. This itself probabilises the case of the accused that no incident could have happened as alleged by the prosecution at the alleged place of occurrence and the accused would have been taken into custody under other circumstances.

24. In this context, it is also to be seen that there are other contradictions also in the evidence of alleged eye- witnesses. While PW1 stated that all the accused including appellants were carrying weapons MOs.3 and 4 and they were apprehending danger at the hands of the appellants, evidence of PW4 who is also in the raiding party shows that accused were keeping the weapons hidden at their back side. While PW1 stated that the accused came there with an oral direction to Excise Inspector to keep back jaggery tin , PW2 does not have no such case.

25. PW2 he did not say any words either in chief examination or in cross-examination that the accused were guilty of making any such statement as alleged by PW1. He has no case that any of the accused bawled at the Crl.A No. 1569 of 2003

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Excise officials making them to keep back jaggery tin. None of the witnesses has a case that accused was guilty of making any other gesture carrying weapons like MOs. 3 and

4. They have no case that they armed with weapons or brandished weapons so as to cause any alarm to them. They do not have have any case that any of the accused threatened any of the officials with injury to their person.

26. It is also relevant to note that there is nothing in the evidence to show that either the first accused or the second raised any protest while the weapons were taken away from them. In the circumstances, I find it difficult to believe the case set up by the prosecution that an incident happened at the second place of occurrence as alleged by the prosecution. Even if the entire prosecution case is accepted, offence under Section 143, 147 and 148 will not be attracted in this case, since the prosecution failed to prove that the unlawful assembly was constituted with the common object as referred to in clauses (1) to (5) of Section 141 of the Code.

27. The prosecution has no case, nor in the charge Crl.A No. 1569 of 2003

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framed by the court it is stated that the accused formed unlawful assembly with any common object involving criminal assault or other facts which are stated in clauses (1) to (5) in Section 141. A reading of Section 143, 147 and 148 IPC will show that offences under the above Sections relate to offence committed by the members of unlawful assembly. If there is no unlawful assembly and the prosecution does not prove the existence of unlawful assembly, none of the offences under Sections 143, 147 and 148 IPC will lie.

28. The allegations made in the charge framed by the court below does not reveal any unlawful assembly involved in this case. It is not the number of persons alone which is relevant to constitute an unlawful assembly. In the absence of anything to show that the common object of the alleged unlawful assembly falls under any of the clauses in (1) to (5) of Section 141 IPC, no unlawful assembly as referred to in Section 141 of the Code is constituted.

29. On the facts of this case, there is nothing to show that the allegations made against accused fall under any of Crl.A No. 1569 of 2003

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the clauses in (1) to (5) of Section 141 IPC. Therefore, there can be no “unlawful assembly” and appellants cannot be convicted for offence under Sections 143, 147 and 148 of IPC. The trial court failed to understand what constitutes an unlawful assembly under Section 141 IPC.

30. The appellants were convicted for offence under Section 506 IPC, but it is not specified stated under which of the sub clauses in Section 506 IPC, the conviction was entered. As per charge no.4 in the charge framed by the court against the appellants, all the accused who are seven in number committed criminal intimidation, by threatening PW1 and party by pointing at them deadly weapons such as sword stick, cycle chain, iron road etc. Though it will appear from the charge framed that all the accused were guilty of committing criminal intimidation by threatening PW1 and the excise party, it is not mentioned in the charge who exactly had threatened PW1 etc.

31. If a person merely stands in front of another armed with a deadly weapon, such person cannot be said to have committed offence defined under Section 503 IPC, which is Crl.A No. 1569 of 2003

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punishable under Section 506 IPC. It is not sufficient if the prosecution proves that such standing caused alarm to the victim. It is essential that accused threatened another person and that such threat is made with intend to cause alarm or to cause such other things as referred to in Section 503 IPC. In the absence of the proving these facts, offence under Section 506 IPC cannot be said to have been committed by the accused.

32. It can be seen from evidence of PW1, the alleged victim that a statement was made by the first accused alone. Though in the chief examination it is stated all the accused had shouted ‘keep back jaggery tin’, in the cross- examination he stated that first accused had made such statement. But, PW2 who was present along with PW1, has no case that any of the accused made any such statement as spoken to by PW1. PWs 4 and 5 also did not say that the accused made any such statement to PW1 or the excise party. Of course, PW4 stated generally that accused made a statement but he also did not say which accused had made such statement.

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33. Thus, even if the entire prosecution case is accepted it is quite clear that no statement was made by any of the accused threatening PW1 or any other person with any injury to his reputation, or his property. The mere standing by the accused carrying weapons in front of the victim and asking him to keep an article in his possession alone is not sufficient to hold that he committed offence under Section 506 IPC. What is relevant is the intention of accused to cause alarm by making a statement with injury to the person, reputation or property of the victim. But, there is no evidence in this case to establish such intention. Hence, on the facts of this case, appellants cannot be said to have committed offence of criminal intimidation as alleged by the prosecution.

34. Now coming to the offence under Section 353 IPC , as per the prosecution case, and as per the charge framed by the court, the accused committed acts of rioting and criminal intimidation with intent to prevent and deter PW1 and party from discharging the duty as public servants. I have already found that the accused have not committed Crl.A No. 1569 of 2003

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offence of rioting under Section 147 or 148. They have also not committed criminal intimidation. The allegations in the charge are not proved.

35. A reading of Section 353 IPC shows that to constitute offence under Section 353 IPC, commission of assault or use of criminal force to a public servant is an essential factor. Admittedly, no criminal force was used in this case, as defined under Section 350 IPC. But, learned Public Prosecutor strongly argued that the accused 1 and 2 were guilty of assault, as defined under Section 351 of IPC.

36. A reading to illustrations to Section 351 IPC will be an answer to to the above arguments. illustration (a) is “A shakes his first at Z”. Illustration (b) is ” A begins to unloose the muzzle of a ferocious dog”. Illustration (c) is “A takes up a stick saying to Z” I will give you a beating”. It is made clear in those illustrations that the words used by A alone will not amount to assault. So also, the mere gesture of picking up a stick alone will not constitute assault unless accompanied by other circumstances. The gesture explained by the words alone amounts to assault. Crl.A No. 1569 of 2003

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37. Therefore, mere preparation of carrying a weapon and standing before the victim without making any gesture which will disclose the intention or knowledge will not constitute assault. As seen from illustration (c), mere carrying a stick without being accompanied by a statement which will disclose the intention or knowledge will not constitute assault. But there is nothing in evidence to reveal commission of any of the overt acts to constitute offence under Section 353 IPC. The prosecution has failed to prove any of the offences alleged against appellants.

38. The argument whether offence under Section 143 will lie consequent to acquittal of co-accused need not be considered in the light of the findings already entered since there is no evidence to show that unlawful assembly stated in Section 141 was constituted in this case. It is also not necessary to consider the other arguments advanced in this case, since accused cannot be convicted on the basis of the evidence adduced in this case, for the reasons already discussed.

Crl.A No. 1569 of 2003

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In the result the following order is passed: 1) The conviction and sentence passed against the appellants under Sections 143, 148, 353 and 506 are set aside.

2) Appellants are found not guilty and they are acquitted of the offence under Sections 143, 148, 353 and 506 IPC.

3) Appellants are set at liberty forthwith. This appeal is allowed.

(Sd/-K.Hema, Judge)

ma/krs

/True copy/

P.A to Judge

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