Balakrishnan Aji, Sahadevan Shaji, Balakrishnan Babu, Balakrishnan Sahadevan, Janaki Savithri v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935** ## **Crl.Rev.Pet.No. 884 of 2002 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN CC 48/1993 of J.M.F.C.-I, ATTINGAL DATED 08-11-1996** **AGAINST THE JUDGMENT IN Crl. A 327/1996 of I ADL.SESSIONS JUDGE, THIRUVANANTHAPURAM DATED 27-05-2002** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED 1 TO 5::** **--------------------------------------------------------------------------------------** **1. BALAKRISHNAN AJI, VALIAVILAKATHU VEEDU, PANDAKASALA, NEAR PULIMOOTTUKADAVU, SARKARA VILLAGE.** **2. SAHADEVAN SHAJI, DO. DO.** **3. BALAKRISHNAN BABU, DO. DO.** **4. BALAKRISHNAN SAHADEVAN, DO. DO.** **5. JANAKI SAVITHRI, KOPRAKODU VEEDU, KOTTUMVATHUKKAL PANDAKASSALA DO.** **BY ADVS.SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM)** ## **RESPONDENT/RESPONDENT/COMPLAINANT::** **------------------------------------------------------------------------------** **STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/03/2013 , THE COURT ON 22-05-2013 PASSED THE FOLLOWING:** _acd_ ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.884 of 2002 ---------------------------------------------Dated this the 22[nd] day of May, 2013 ## **ORDER** Revision petitioners were convicted by the Judicial First Class Magistrate-I, Attingal U/s. 143, 147, 341 225B, 426, and 353 r/w. 149 IPC and sentenced to undergo rigorous imprisonment for different periods under the above Sections. The sentences were directed to run concurrently by the trial court. The appeal filed was dismissed by the Additional Sessions Court-I, Thiruvananthapuram. Challenging the above judgment, the accused preferred this revision. 2. The prosecution case is that on 17.11.1992 at 9 a.m. the Preventive Officer and party attached to Chirayinkeezhu Excise Range conducted a search in the shop of the 5[th] accused at Pulimootu Kadavu in Pandakassala and seized a plastic container containing 10 litres of illicit arrack and arrested the 5[th] accused from there. The relatives of the 5[th] accused and others gathered there, formed themselves into an unlawful assembly and in Crl. R.P.No.884/02 2 furtherance of their common object, Accused 1 to 4 forcibly taken the 5[th] accused from the custody of the Excise party and 1[st] accused kicked PW1, 2[nd] accused snatched the plastic container from PW1, accused 3 and 4 assaulted and torn the uniform of PW1 and accused 1 to 7 managed to escape the 5[th] accused from the lawful custody of PW1. On the basis of information, Chirayinkeezhu Police registered the above crime and after investigation laid charge in the trial court. 3. To prove the case, the prosecution examined PWs 1 to 9 and marked Exts.P1 to P6. The incriminating circumstances brought out in evidence were denied by the revision petitioners, while questioning under Section 313 Cr.P.C. Exts.D1 and D2 were marked, while examination of PW2. The trial court after analysing the oral and documentary evidence, convicted the accused. The appeal preferred by them was dismissed by the court below. 4. Now the question that arises for consideration is whether there is any illegality or irregularity in the finding recorded by the court below? If so, the conviction and sentence passed by the court below U/s. 143, 147, 341 225 (b), 426, 353 r/w. 149 IPC are sustainable in law? 3 Crl. R.P.No.884/02 5. The structure of the prosecution case was erected on the basis of oral testimony of the the Preventive Officers attached to the Excise Range Office, Chirayinkeezhu, who conducted a search in the shop of the 5[th] accused on 17.11.1992. According to PW1, the excise party seized 10 litres of illicit arrack from the shop of A5 after preparing a mahazar, at that time, accused 1 to 4 restrained them and after assaulting them they took the arrack from their custody and they torn the uniform of PW1 while he was on his official duty. For this incident, PW1 gave Ext.P1 statement to the Chirayinkeezhu Police and deposed that 1[st] accused kicked on his abdomen. PW2 also supported the evidence of PW1 and deposed that he was present there at the time of raid. According to him, a white Kannas was recovered and colour of the lid was black. The denied portion of statement of this witness was marked as Exts.D1 and D2. 6. PW3 who is an occurrence witness deposed that the Excise party took two kannas containing illicit arrack from the shop of the 5[th] accused at that time the accused obstructed the Excise party and the 1[st] accused assaulted PW1 and the 4[th] accused called obscene words towards PW1. According to him, Crl. R.P.No.884/02 4 they seized a black kannas from that shop. PW4 the Preventive Officer supported the evidence of PW1. He deposed that on 17.11.1992, he got information that the 5[th] accused was selling arrack in her shop, immediately, he reached at the shop and seized black kannas with arrack. When they proceeded 15 feets, the accused forcefully seized the kannas and 1[st] accused assaulted PW1, torn the uniform and permitted the 5[th] accused to escape from the official custody. Even though these witnesses deposed so, no evidence has been adduced by them to show that PW1 sustained any injury in the incident. Ext.P4 is the wound certificate issued by PW7, it shows that there was complaint of pain in lower abdomen. No injuries are noted by the doctor, who treated PW1. No tenderness was noted in the lower abdomen, no symptom of pain was present at the time of examination. 7. PW5 attested Ext.P3 mahazar. The Excise Range Officer, who was examined as PW8, deposed that PW1 was working in his office as Excise Guard. On 17.11.1992 at 9 a.m. PW1 was on official duty, for that, he issued Ext.P2 certificate. He did not examined general diary before issuing Ext.P2. PW8 recorded Ext.P1 statement. On the basis of that, Crl. R.P.No.884/02 5 he registered Ext.P5 F.I.R. He arrived at the place of occurrence and prepared Ext.P3 mahazar. Witnesses were questioned. After identifying the accused, he submitted Ext.P6 report. PW5 attested Ext.P3 mahazar. PW9 verified the investigation and laid charge before the Court. 8. During the course of investigation, the Investigating Officer is required to make a search for the person and property connected with a crime. No scrap of paper has been produced by PW1 to prove that he followed the procedural formalities under Section 165 Cr.P.C. [Relied decisions in _**State of Rajasthan**_ v. _**Rehman**_ (AIR 1960 SC 210)]. The powers of a police officer to make a search without warrant are defined in Sec.165 of the Cr.P.C. and these powers are given to an officer-in-charge of a police station or to a police officer making an investigation in a case. These powers are not conferred on police officers generally but only to an officer in charge of police station or a police officer making investigation. Under Sec.165, four conditions are imposed: (1) the police officer must have reasonable grounds for believing that anything necessary for the purpose of an investigation of an offence cannot, in his opinion, be obtained otherwise than by 6 Crl. R.P.No.884/02 making a search, without undue delay; (ii) he should record in writing the grounds of his belief and specify in such writing as far as possible the things for which it is to be made; (iii) he must conduct the search, if practicable, in person; and (iv) if it is not practicable to make the search himself, he must record in writing the reasons for not himself making the search and shall authorize a subordinate officer to make the search after specifying in writing the place to be searched, and so far as possible, the thing for which search is to be made. When all these conditions are fulfilled, if the officer decides to make a search, he must record in writing the grounds on his belief and is to specify it in writing the thing that he is searched for. According to Sec. 100 of the Cr.P.C. before making the search, he is to call upon two or more independent and respectable inhabitants of the locality to attend and witness the search which is to be in their presence. Only after complying these procedure formalities the CR.P.C. authorizes him to search or cause search to be made for such thing. 9. In this context, I have considered what offences are proved in this case. In order to attract offence under Section 353 of IPC, the prosecution has to prove that revision 7 Crl. R.P.No.884/02 petitioners assaulted or used criminal force against public servants in execution of their duty as a public servant or intend to prevent or deter them from discharging that duty. No documentary evidence has been adduced by the prosecution to show that PW1 was discharging the official duty. PW1 sustained injury and his shirt was torn, but the torn shirt was not recovered. No evidence has been adduced by the Excise Officials to show that, after this incident, they registered any excise crime and what happened to the Kannas and arrack. According to PW1, they arrived at the place of occurrence on the basis of reliable information. But, PW4 deposed that he was conducting the patrol duty and reached there. This inconsistent version create a doubt in the credibility of the prosecution case. In short, the prosecution failed to prove that the victim was in execution of his official duty. No evidence has been adduced by the prosecution to show that he was assaulted by the revision petitioners anything done in consequence of his official duty and attempted to do something in the lawful discharge of his duty. 10. The evidence of Pws2, 3 and 4 are inconsistent each other with regard to the colour of the Kannas. It shows that Crl. R.P.No.884/02 8 they were not present at the time of incident. The arrest of the 5[th] accused and seizure of arrack were not recorded by the Excise Officials. If they recovered arrack from the shop of the 5[th] accused, it is their responsibility to prepare a search memorandum, seizure report and property list. All these were not prepared and forwarded to the Court. The reason for not obtaining search warrant was also not explained. 11. Any intentional resistance or illegal obstruction to the lawful apprehension of the 5[th] accused was made by the revision petitioners or they help the 5[th] accused to escape from the lawful custody of the excise officials. No documents have been produced by the prosecution to show that the 5[th] accused was arrested in due course. No evidence has been produced by the prosecution to show that there was resistance to lawful apprehension or escape of the accused from the custody of the Excise officials. Prosecution has to prove that arrest must be legal and the custody contemplated must be a careful custody. There is no lawful detention and no attempt was made to prevent the escape from the custody. Therefore, I am of opinion that the prosecution failed to prove the offence under Section 225(b) IPC also. Crl. R.P.No.884/02 9 12. When there is no direct evidence regarding the unlawful assembly and the alleged offence, the accused are entitled to get the benefit of doubt. In this context, I rely the Apex Court decision in _**Sharad Birdhichand Sarda**_ v. _**State of Maharashtra**_ [AIR 1984 SC 1622], in which it is held that; “it is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.” In view of the discussion of the above legal principle, I am of the view that the prosecution utterly failed to prove the case beyond reasonable doubt. Serious pitfalls are found in the search and seizure and in the oral evidence of PWs 1 to 4. In the result, the conviction and sentence passed by the trial court are set aside and accused are set at liberty. Accordingly, the revision petition is allowed. ## **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.884/02 10 Crl. R.P.No.884/02 11