MURALIKRISHNAN & ORS. vs STATE

The revision petitioners herein are the accused in C.C 236/1998 of the Judicial First Class Magistrate Court, Koothuparamba. They faced

prosecution in the court below under Sections 143, 147, 448 and 427 read with 149 I.P.C, on the allegation that at about 9.30 p.m on 25.1.1998,

they trespassed into the ration shop of one Valsan as part of a criminal design hatched by them, and they committed some acts of mischief there by

destroying the furniture and other articles.

All the accused appeared before the learned Magistrate and pleaded not guilty when the substance of the accusation was read over and

explained to them. The prosecution examined 8 witnesses in the trial court and proved Exts. P1 to P3 documents. All the accused denied the

incriminating circumstances when examined under Section 313 Cr.P.C. They did not adduce any evidence in defence. On an appreciation of the

evidence, the trial court found all the accused guilty. On conviction they were sentenced to undergo different terms of sentence. Aggrieved by the

judgment of conviction dated 16.10.2001, the accused approached the Court of Session, Thalassery with Crl.A 590/2001. In appeal, the learned

Addl.Sessions Judge (Adhoc-II) confirmed the conviction, but modified the sentence. Accordingly, the jail sentence was set aside and a sentence

of fine was imposed under the different sections by judgment dated 26.10.2006. Now the accused are before this Court in revision challenging the

legality and propriety of the conviction and sentence.

On a perusal of the entire materials, and on hearing both sides, I find that the conviction concurrently made by the courts below is liable to be set

aside. Of the eight witnesses examined in the trial court, PW1 to PW3 are the material witnesses. PW7 and PW8 are the Police Officers who

registered the crime and investigated the case. PW4 and 5 are only mahazar witnesses. PW6 has only a hear-say information. Ext.P1 is the

complaint made by PW1 to the Police. This is a very short complaint which does not contain the necessary details of the alleged trespass and

mischief.His case in the complaint is that he sustained a loss of Rs.2000/- due to the alleged mischief committed by the accused. But in evidence,

he stated that he had sustained a loss of Rs.12000/-. He does not explain this difference, or how he sustained that much loss. His case in evidence

is that he witnessed the incident at about 9.30 p.m while he was at his father''s house. He has no such case in the complaint. The Ext.P1 complaint

and also the examination of PW1-inchief would show that he was in fact at his house at the time of the alleged incident. He stated in cross-

examination that his house is 1.50 kms away from the scene of incident. In court, the witness could not clearly and specifically identify the accused

as the persons who allegedly committed mischief at his shop. In a case like this, the material witnesses are expected to say who is who of the

accused and also the overt-acts committed by each and every accused.

PW2 is the brother of PW1. His evidence also shows that he had not actually witnessed the incident. He also did not specifically and clearly

identify the accused in this case as the persons who committed mischief at his brother''s ration shop. PW3 claims to be an independent witness. But

his evidence shows that he had not actually witnessed the incident. When the complainant says that he sustained a loss of Rs.12,000/-, PW3 would

say that the complainant had sustained a loss of Rs.3000/-. Anyway, his evidence shows that he had not actually seen the accused , and he

identified them by voice. When PW1 would say that there was electric light at the premises, PW3 would say that he saw the accused in torch light.

This means that the case of PW1 is false that there was electric light there. PW3 stated first that he identified the accused by voice, but he stated in

the next breath that he saw the accused in torch light. It is not known how he could identify ten persons by voice. His evidence appears to be really

artificial. I am not inclined to accept the evidence of PW3 as independent evidence. PW1 has no consistent and acceptable case in evidence. In the

complaint itself, necessary details are not there. I find that there is no proper and legal evidence to connect any of the accused with the alleged

crime. It is quite unfortunate that the Assistant Public Prosecutor did not bring out the necessary details regarding the identity of the persons or the

mischief allegedly committed. In the absence of proper and satisfactory legal evidence. the conviction and sentence against them will have to be set

aside.

In the result, this revision petition is allowed. The revision petitioners are found not guilty of the offences under Sections 143, 147, 448 and 427

read with 149 I.P.C, and they are acquitted of the said offences in revision. Accordingly, the conviction and sentence against them in C.C

236/1998 of the court below and confirmed in appeal, will stand set aside, and the revision petitioners will stand released from prosecution.