Sathian vs State Of Kerala

G.Girish, J

The revision petitioner is the second accused in Crime No.369/2000 of Aluva police station, who had been convicted by the Judicial First Class Magistrate-I, Aluva in C.C.No.726/2000, for the commission of offence under Sections 452, 323, 354 and 427 I.P.C. The above conviction as well as the sentence of simple imprisonment for two years under Section 452 I.P.C, simple imprisonment for three months each under Sections 323 and 427 I.P.C and simple imprisonment for six months under Section 354 I.P.C, were upheld by the Additional Sessions Judge (Adhoc) II, Ernakulam in Crl.A.No.47/2004.

The prosecution case is that on 30.04.2000, at about 7.30 p.m, the petitioner along with the first accused in the crime, criminally trespassed into the house of the de facto complainant at Edathala Panchayat and subjected her and her mother to physical assault, in addition to outraging her modesty. It is alleged that the first accused caught hold of the neck and breasts of the de facto complainant and pushed her aside, whereas the petitioner inflicted a blow upon the left knee of the de facto complainant’s mother with an iron rod resulting in injuries. The petitioner and his co-accused are also alleged to have caused destructions to the tune of Rs.25,000/- by smashing the window glass and television of that house. In connection with the above incident, the S.I of Police, Aluva laid the final report before the Judicial First Class Magistrate-I, Aluva against the petitioner and the first accused for the commission of offence under Sections 452, 324, 323, 354 and 427 I.P.C read with Section 34 I.P.C.

In the trial before the learned Magistrate, four witnesses were examined from the part of the prosecution as PW1 to PW4 and four documents were marked as Exts.P1 to P4. Two material objects were also brought in evidence as MO1 and MO2. In the meanwhile, the first accused went absconding, and hence the case against him was split up by the learned Magistrate. After evaluating the above evidence and hearing both sides, the learned Magistrate found the petitioner guilty of commission of offence under Sections 452, 323, 354 and 427 I.P.C, and awarded the sentence as stated above.

The learned Additional Sessions Judge (Adhoc) II, Ernakulam, who considered the appeal, observed, after appreciating the facts and evidence, that the finding rendered and the order of conviction and sentence passed by the trial court against the petitioner, are not liable to be interfered with, and accordingly dismissed the appeal.

Aggrieved by the above concurrent verdicts of the trial court and appellate court, the petitioner has preferred this revision.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

The learned counsel for the petitioner would contend that the trial court as well as the appellate court committed grave error and impropriety in finding the petitioner guilty of the crime alleged against him, even though the prosecution failed in bringing forth any evidence in support of the charge levelled against the petitioner. It is pointed out that the courts below delved upon the untrustworthy oral testimony of the de facto complainant who was examined as PW1 towards finding the guilt of the petitioner, notwithstanding the absence of supporting evidence to establish the case put forward by the prosecution.

The learned counsel for the revision petitioner brought to the notice of this Court the failure of the prosecution to bring on record the scene mahazar to establish the scene of crime, and the seizure mahazar, to establish the recovery of the material objects which are marked as MO1 and MO2. It is to be noted that the above two records are vital documents for a successful prosecution in a case of this nature. It was the prime responsibility of the prosecution to get the scene mahazar marked in evidence towards showing that the incident happened inside the house of PW1 where the petitioner is alleged to have criminally trespassed after making pre-arrangements for perpetrating physical assault. Likewise, it was the incumbent obligation of the prosecution to establish the manner of recovery of the material objects and the resultant circumstances pointing to the guilt of the accused. As far as the present case is concerned, the prosecution miserably failed in fulfilling their responsibility in the above regard. Still, the courts below are seen to have ignored, or rather failed to take note of the above fatal drawbacks, and arrived at a finding on the guilt of the petitioner by reposing upon the oral testimony of PW1 alone.

It is pertinent to note that, even if the oral testimony of PW1 is accepted as such, the accusation against the petitioner herein is confined to causing destruction to the window glass panes and television at the house of PW1. All the other allegations pertaining to outraging the modesty of PW1 and inflicting voluntary hurt, are seen levelled against the first accused. However, the trial court as well as the appellate court are seen to have proceeded as if the petitioner herein had participated in all those acts constituting the offence of outraging the modesty of PW1 and inflicting voluntary hurt upon her and her mother.

As rightly pointed out by the learned counsel for the revision petitioner, the failure of the prosecution to examine the investigating officer, has also contributed to the fatality of this case. The petitioner was deprived of the opportunity to cross-examine the investigating officer about the absence of evidence pertaining to scene of crime and the lack of material particulars pointing to the recovery of material objects. It is of no doubt that the omission of the prosecution in examining the investigating officer has caused prejudice to the petitioner in defending the case.

Having regard to the frailties in the prosecution evidence discussed in the foregoing paragraphs, I am of the view that the courts below committed grave error in convicting the petitioner in the absence of the requisite evidence to establish the commission of crime by him. Therefore, the conviction and sentence resorted to by the courts below are liable to be set aside.

In the result, the revision stands allowed. The conviction of the petitioner, followed by the sentence imposed for the commission of offence under Sections 452, 323, 354 and 427 I.P.C, are hereby set aside, and the petitioner is acquitted of the aforesaid charges. The bail bond, if any, executed by the petitioner, stands cancelled and he is set at liberty as far as the present case is concerned.