Rajan vs State of Kerala

K. Ramakrishnan, J.—Accused Nos. 1 to 3 in C.C. No. 412/2011 on the file of the Judicial First Class Magistrate Court-II, Thamarassery, are the revision petitioners herein. The revision petitioners were charge sheeted by the Sub Inspector of Police, Mukkom, in Crime No. 212/2011 of Mukkom police station, alleging commission of the offence under Section 447 and 427 read with Section 34 of the Indian Penal code.

The case of the prosecution in nut shell was that, on 30.05.2011 at about 6.30 p.m., the revision petitioners criminally trespassed into the property in possession of the de facto -complainant and destroyed the crops cultivated in the property, causing loss of Rs. 50,000/- to her and thereby they have committed the offence punishable under Section 447 and 427 read with Section 34 of the Indian Penal Code. After investigation, final report was filed and it was taken on file as C.C.412/2011 on the file of the Judicial First Class Magistrate Court-II, Thamarassery. When the revision petitioners appeared before the court below, the particulars of offence were read over and explained to them and they pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 7 were examined and Exts.P1 to P4 were marked on their side. After closure of the prosecution evidence, the revision petitioners were questioned under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that, they have not committed any offence and they have been falsely implicated in the case. Further, the de facto -complainant and her husband were against giving land for formation of the road and PW1 had given some land and a road was formed, but encroaching into the road, they constructed fence which was complained by DW1, the wife of the 2nd accused by filing Ext.D1 complaint and on account of that enmity, a false case has been foisted against them. In order to prove their case, wife of the 2nd revision petitioner was examined as DW1 and Ext.D1 was marked on their side. After considering the evidence on record, the court below found the revision petitioners guilty under Section 447 and 427 of the Indian Penal Code and convicted them there under and sentenced them to pay a fine of Rs. 500/- each under Section 447 read with Section 34 of the Indian Penal Code and in default to undergo simple imprisonment for one week and further sentence to pay a fine of Rs. 3,500/- each, in default to undergo simple imprisonment for one month each under Section 427 read with Section 34 of the Indian Penal Code and further directed to pay Rs. 10,000/- if the fine is realised, as compensation to PW2 under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioners filed Crl.Appeal No. 172/2013 before the Sessions Court, Kozhikode, which was made over to 4th Additional Sessions Court, Kozhikode, for disposal and the learned Additional Sessions Judge by the impugned judgement, dismissed the appeal, confirming the order of conviction and sentence and passed by the court below. Dissatisfied with the same, the present revision has been filed by the revision petitioners/accused before the court below.

Heard both sides.

The counsel for the revision petitioners submitted that, there is a delay of eight days in filing the complaint. PWs 1 and 2 were not consistent in respect of the delay caused in making the complaint. According to PW1, the complaint was filed within two days, whereas according to PW2, it was made after five days of the incident. Further they have admitted that, two or three days prior to the alleged incident, there was some other incident occurred and some people had demolished the fence constructed by the de facto -complainant along with their property, encroaching into the path way, formed by the public and in fact except such incident, no such incident happened on 30.05.2011 involving the revision petitioners as claimed by the prosecution. Further, though they were independent witnesses, none were examined and PW4 who was cited as witness is not a person residing there. So his presence at the place is doubtful. So under the circumstances, courts below have not properly appreciated the evidence and in the absence of probable and plausible explanation for the delay, courts below should have viewed the same as suspicious and that benefit should have been given to the revision petitioners, which has not been done in this case. So according to him, the courts below were erred in appreciating the evidence and they are entitled to get the benefit of doubt and prayed for acquittal.

On the other hand, the learned Public Prosecutor argued that, the evidence of PWs 1, 2 and 4 will go to show that, they could prove the incident beyond reasonable doubt and since the public were interested in the formation of the road by causing damage, one cannot expect that the witnesses will depose against the revision petitioners and only the interested statement of the owner of the property alone will be available in such cases. Concurrent findings of the court below on appreciation of facts do not call for any interference.

The case of the prosecution as emerged from the prosecution witness was that, PW2, wife of PW1 is the owner of 22 cents of property in Resurvey No. 19/1 of Mukkom Village and there was some dispute regarding the formation of the road through the property, for which PW2 was not amenable and on account of that enmity, on 30.05.2011, the revision petitioners criminally trespassed into the property and committed mischief by cutting and damaging areca nut and plantain plants, causing a loss of Rs. 50,000/- to her. PW1, the husband of PW2 was not there at that time, as he went to Calicut. After PW1 came home from Calicut, this fact was disclosed to him and he was under the impression that the matter could be settled with them, but since it was not settled, he went to the police station on 08.06.2011 and gave Ext.P1 written complaint, on the basis of which PW6 registered Ext.P4 first information report, as Crime No. 212/2011 of Mukkom police station and investigation in this case was conducted by PW7, the head constable attached to that police station. He went to the place of occurrence and prepared Ext.P3 scene mahazar in the presence of PW5 and another. As requested by the investigating officer, PW3 the Village Officer gave Ext.P2 possession certificate of the property to prove that PW2 was in possession of that property. He questioned the witnesses and recorded their statements and he completed the investigation and submitted final report against the revision petitioners.

PW1 is not an eye witness to the incident. He is the husband of PW2, who is the owner of the property. The fact that, PW2 is the owner of the property is not in dispute and it was proved by PW3, the Village Officer by issuing Ext.P2 ownership cum possession certificate and that was not challenged by the revision petitioners as well. The case of PW1 was that, on 30.05.2011, he was not in station. He went to Calicut and he came back during night and PW2 his wife told about the incident. It is true that, it was brought out in the evidence of PW1 that, there was some incident happened two or three days prior to this incident, in which, the fence put up by them was damaged by some persons, but he had categorically stated that, this is not connected with that incident and he had not falsely implicated the revision petitioners. It is true that, in his evidence, he had stated in the earlier portion of the deposition that, he gave complaint to the police within two days of the incident, but in the later part, he had stated that, it was after five days that he filed the complaint. But he had categorically stated that, he was under the impression that, the matter could be settled, as both the revision petitioners and themselves belong to same locality and since the matter was not settled, he was compelled to file the complaint.

PW2 is the person, who saw the incident. She had categorically stated that, on 30.05.2011 at about 6.30 p.m., all the 3 accused persons came there and committed the mischief. Though she was cross examined at length, nothing was brought out to discredit her evidence, regarding this aspect. Further she had stated that, since her husband was not there, she waited for her husband to come to file the complaint. She had stated that, within five or six days of the incident a complaint was given to the police.

It is true that in a case where there was delay in intimating the police, unless it is satisfactorily proved, court must view the same with suspicion and unless there is convincing evidence to prove the incident, court cannot base the conviction on the basis of such allegation in the delayed first information statement. It is also settled law, that delay is not always fatal to disbelieve the case of the prosecution in toto. But if it is explained convincingly, court can ignore the delay and enter conviction on the basis of evidence adduced by the prosecution. In this case, PW1 had categorically stated that, since he was under the impression that the matter could be settled by talking over between the parties, due to the intervention of the well-wishers of both parties, as they belongs to the same locality and since it was not settled, he was compelled to file this complaint. Further it is also in away brought out in evidence that, there was some dispute regarding the formation of public road through the property of several persons including that of PW2 and the de facto -complainant and earlier for forming a road, a portion of the property was given and again they wanted to provide some more portion for another road, which was not acceptable to the de facto -complainant and his wife. So when something was happened in connection with formation of the road, quite natural that, people will wait for a settlement, before rushing the court, unless the possibility of settlement even at that stage is bleak. Further it is seen from Ext.D1 proved through DW1, the wife of 2nd accused that, there was some dispute regarding the encroachment said to have been made by the de facto -complainant and his wife and the complaint was made in respect of the same. It is also in away admitted that, some incident happened by demolishing the fence, some days prior to the incident in this case. So all these things will go to show that, the delay is not fatal in such cases and the hope of PW1 to get it resolved by settlement also cannot be said to be unreasonable as well. Merely because, there is some discrepancy regarding the number of days delay in filing the complaint in the evidence of PW1 and PW2 is not a ground to dis-believe their case as such, especially when Ext.P3 scene mahazar shows the damage caused to the areca nut and plantain plants in the property in the possession of PW2.

Further Ext.D1 and evidence of DW1 is not sufficient to come to the conclusion that, there was no incident as alleged by the prosecution, especially when Ext.P3 scene mahazar shows the nature of damage caused to the crops in the property in possession of PW2. PW4 is an independent witness examined. He is not a man from that place and he had stated that he came there to see PW1 in connection with some transaction between them and since PW1 was not there, he wanted to go back and at that time, he happened to see the incident. He had identified the revision petitioners, as the persons who had committed the mischief. There is no enmity for PW4 to give any false evidence against the revision petitioners. It is true that, he is a chance witness. Merely because he is the chance witness, it is not necessary that, his evidence has to be eschewed in toto as unbelievable. If he can able to convince the court regarding the possibility of his presence at that time, at that place, there is nothing wrong for the court to rely on the evidence of chance witness to base conviction. It is also settled law that, merely because the local witnesses were not examined is not a ground for disbelieving the case of the prosecution. It was in respect of formation of the road. The persons who were present there may be the persons interested in the formation of the road. So one cannot expect that, they would support the case of the prosecution. So under the circumstances, non examination of the local people, who were said to have been present at the time of the incident is not fatal in the circumstance of this case. So the evidence of PWs 1, 2 and 4 in this case proved beyond reasonable doubt that the revision petitioners have criminally trespassed into the property belonging to PW2 and in the possession and management of PW1 and committed mischief by causing damage to the crops in the property and thereby they have committed the offence punishable under Section 447 and 427 read with Section 34 of the Indian Penal Code and the courts below were perfectly justified in convicting the revision petitioners for the said offence. So the concurrent findings of the court below on this aspect do not call for any interference.

As regards the sentence is concerned, court below had only imposed fine alone with default sentence as sentence in this case, which cannot be said to be excessive. The courts below were perfectly justified in awarding compensation out of the fine and that also cannot be said to be excessive. Maximum leniency has been shown by the court below in imposing the sentence as well, which this court does not require any interference. So the revision fails and the same is hereby dismissed. Office is directed to communicate this order to the court below at the earliest.