Koyakkudy Thiruthiyil Aslam Manzil v. P.T. Sulaiman Para Tharipoil and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942** ## **Crl.Rev.Pet.No.2762 OF 2004(A)** **CRA 509/2000 OF ADDITIONAL SESSIONS COURT-III, KOZHIKODE** ## **CC 168/1995 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, THAMARASSERY** ## **REVISION PETITIONER/S:** - **1 KOYAKKUDY THIRUTHIYIL ASLAM MANZIL, KARUTHAPRAMB, KARASSERY P.O.** - **2 JOSEPH THOMAS, S/O.THOMASVALAYANOLIKKAL ELANGAL, NELLIKKAPARAMB.** - **3 ABDURAHIMAN P.C., S/O.KUHNOYI HAJI PARACHATHAMMAL, NELLIKKAPARAMBA P.O.** - **4 ABDUL RASHEED, S/O.MUHAMMED KOZHILKKULAVAN, P.O.KARASSERY.** - **5 KRISHNANKUTTY, S/O.KORAPPAN MAPPLIAKUNNATH, ELENGAL, P.O.NELLIKKARPARAMBA.** - **6 MUHAMMED, S/O.IBRAHIM HAJI KANNATTUKUZHYIL HOUSE, P.O.NELLIKKAPARAMB.** - **7 SURESH KUMAR, S/O.GOPALAN KOLLAMALA P.O.MYSOREMALA.** - **8 KOMU, S/O.ALI PALATTUKUZHIYIL INTHUMKANDI, P.O.MYSORE MALA.** - **9 AUGUSTINE, S/O.JOSEPH MUKKILAKKAD P.O.MYSORE MALA.** - **10 RAJENDRAN NAIR, S/O.KRISHNAN THAMBI ELLANGAL COLONY, P.O.NELLIKKAPARAMBA.** - **11 MUHAMMED, S/O.SYEDHOOTTY THAZHATHEL, P.O.NELLLIKKAPARAMB.** - **12 SUBRHAMANYAN, S/O.CHANDUKUTTY** Crl.RP No.2762/2004 ..2.. **PUTHUSSERY, ELLANGAL, P.O. NELLIKKAPPARAMBA.** - **13 ALIKUTTY, S/O.ISMAILKUTTY THAZHEPOYIL, ELLANGAL, P.O. NELLIKKAPARAMBA.** - **14 MANI, ELLANGAL, P.O.NELLIKKAPPARAMBA.** - **15 ALI KANHIRAKKUTTIYIL S/O.AHAMMED KUTTY, ARODE P.O. NELLIKKAPARAMB.** - **16 VIJAYAN ELLANGAL, S/O.APPU NAIR P.O.KARASSERY.** - **17 ABDUL RASHEED, S/O.KESAVAN ELLENGAL COLONY P.O. NELLIKKAPARAMBA.** - **18 SWAMIKUTTY, S/O.KARIYATHAN ELLENGAL COLONY, P.O.NELLIKKAPARAMB.** - **19 MUHAMMED, S/O.KUNHON KALATHINGAL CHENAPARAKKAL, P.O. NELLIKKAPARAMB.** - **20 SURESH BABU, S/O.VELAYUDHAN PATTAMBI AROOTT, P.O.NELLIKKAPARAMB.** - **21 SUNDARAN, S/O.KANNA ELLENGAL COLONY P.O.NELLIKKAPARAMB.** - **22 ABDUL MAJEED, S/O.NAGAN ELLENGAL COLONY, P.O.NELLIKKAPARAMB.** - **23 BALAKRISHNAN, S/O.KANNAN ELLENGAL COLONY, P.O.NELLIKKAPPARAMB.** - **24 AYYAPPAN, S/O.MOOTHORAN ELLENGAL COLONY, P.O.NELLIKKAPARAMB.** - **25 NEELANDAN, S/O.KANNAN KUTTY ELLENGAL COLONY, P.O.NELLIKKAPARAMB.** - **26 OLERI VELAYUDHAN, S/O.KEERAN ELLENGAL COLONY P.O. NELLIKKAPARAMB.** - **27 ABDUL KAREEM MUTTATH, S/O.MAMMU ELLENGAL COLONY, P.O.NELLIKKAPARAMB** - **28 CHERIYATHAN, S/O.CHERIYAMAN ELLENGAL COLONY, P.O.NELLIKKAPARAMB.** Crl.RP No.2762/2004 ..3.. - **29 KARIKUTTY, S/O. PENAPPARAKKAL KUNHAN ELLENGAL COLONY, P.O. NELLIKKAPARAMB.** - **30 SUBAI, S/O.MUHAMMED PENAPPARAKKAL COLONY, P.O.NELLIKKAPARAMB.** - **31 APPU NAIR, S/O.NARAYANAN NAIR AMBALAKUNNATH, ELLENGAL COLONY, P.O.NELLIKKAPARAMB.** - **32 PAITHAL.P., S/O.POYILIL ALIKUTTY KARUTHAPARAMB, P.O.KARASSERY.** - **33 N.A.THOMAS, S/O.AUGUSTINE NADUVILAKKAL, P.O.MYSORE MALA.** - **34 ABDUL SALAM, S/O.KUNHOYI HAJI NEDUMKANDAM, KARUTHAPARAMBA, P.O.KARASSERY.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.C.S.SUNIL SRI.P.R.SREEJITH SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN** ## **RESPONDENT/S:** - **1 P.T.SULAIMAN PARA THARIPOYIL, AFSAL MAHAL. KAKKAD AMSOM,, KARASSERY DESOM.** - **2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **R1 BY ADV. SRI.E.NARAYANAN** ## **OTHER PRESENT:** ## **SR.PP. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-10-2020, THE COURT ON 28-10-2020 PASSED THE FOLLOWING:** Crl.RP No.2762/2004 **==> picture [31 x 8] intentionally omitted <==** ## **ORDER** Dated this the 28[th] day of October, 2020 Revision petitioners 1 to 34 were the accused in CC No. 168 of 1995 on the file of the Judicial First Class Magistrate Court, Thamarassery and the appellants in Crl.Appeal No. 509 of 2000 on the file of the Additional Sessions Court-III, Kozhikode. The offences alleged against the accused are punishable under Sections 143, 147, 148, 447, 427 and 506(ii) r/w Section 149 of the Indian Penal Code (hereinafter referred to as, “IPC”). 2. By the judgment dated 11.11.2000, the learned magistrate found all the accused except accused No.34 guilty of the offences punishable under Sections 143, 447 and 427 of the IPC. All the accused except accused Nos.20, 31, 34 and 35 were found guilty of the Crl.RP No.2762/2004 **==> picture [31 x 8] intentionally omitted <==** offences punishable under Sections 147 and 148 of the IPC. All the accused were found not guilty of the offence under Section 506(ii) of the IPC. Accordingly, they were acquitted. The trial court awarded sentence to the convicts under various counts including simple imprisonment for a period of two years for the offence punishable under Section 148 of the IPC. The judgment of the learned magistrate dated 11.11.2000 was later confirmed in Crl.Appeal No. 509 of 2000 of the Additional Sessions Court-III, Kozhikode. Assailing the conviction and sentence, the revision petitioners are before this Court. 3. Prosecution case, in brief, is as hereunder; The 1[st] respondent's father, Imbichi Moyi, is the owner in possession of 7.34 acres of land comprised in Re.Sy.No.67 in Kalakkamchola, wherein the 1[st] respondent is residing along with his father. On 11.12.1993 at about 10 pm, Crl.RP No.2762/2004 ..6.. all the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object, trespassed into the property owned and possessed by the 1[st] respondent and others, threatened that they will be done away with, and cut open a road forcibly by committing waste therein. Accused Nos. 1 to 3 are the leaders and workers of the Congress party and the Muslim League and other accused are their henchmen. It is alleged that the accused had destroyed valuable trees in the property and thereby, the 1[st] respondent and his family had incurred a loss of Rs.1.2 lakh. 4. The 1[st] respondent filed a private complaint before the court on 12.05.1994 alleging commission of the aforesaid offences. The complaint was referred to the police for investigation under Section 156(3) of the Code Crl.RP No.2762/2004 **==> picture [31 x 8] intentionally omitted <==** of Criminal Procedure (hereinafter referred to as, “Cr.P.C.”). After the investigation, the police filed final report referring the case. Consequently, therefore, the 1[st] respondent filed a protest complaint before the court. The complaint was enquired into; the witnesses were examined; and the trial court issued summons to accused 1 to 35. All the accused except accused No.34 entered appearance. Accused No.34 died pending proceedings. Hence, the case against him stood abated. 5. After having heard both sides, the trial court framed charge against the accused for the offences punishable under Sections 143, 147, 148, 447, 427 and 506(ii) r/w Section 149 of the IPC. All the accused denied the charge, pleaded not guilty and claimed to be tried. The accused were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the Crl.RP No.2762/2004 **==> picture [31 x 8] intentionally omitted <==** evidence against them. 6. During the trial, PWs 1 to 6 were examined and marked Exts.P1 to P8 on prosecution side. DWs 1 to 4 were examined and marked Exts.D1 to D4 on the side of defence. 7. Heard Sri.Sandeep T.K., the learned counsel for the revision petitioners; Sri.P.V.Anoop, the learned counsel for the 1[st] respondent; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent State. 8. The 1[st] respondent was examined as PW1. He lodged Ext.P1 complaint before the court. According to him, his father, Imbichi Moyi, is the owner in possession of 7.34 acres of land comprised in R.Sy.No.67 in Kalakkamchola and he has been residing therein along with his father. It is his specific case that since his father is aged and ailing and his other brothers are working in different places, he Crl.RP No.2762/2004 **==> picture [31 x 8] intentionally omitted <==** has been managing the property and other properties of his father. According to him, the accused formed a Road Development Association under the name and style, “Karuthaparamba - Mysore Mala Road Vikasana Samithi” and on 11.12.1993 at about 10 pm, all the accused formed themselves into an unlawful assembly, armed with dangerous weapons such as spade, pick-axe etc., and without the consent of his father, trespassed into his property and annexed a portion of the same for widening a road. It is his grievance that they had destroyed valuable trees in the property and committed waste therein and thereby, his father sustained a loss of Rs.1.2 lakh. He also stated that they were identified in the light of petromax carried by them and also in the light emanated from his house on the southern side. According to him, accused Nos.4 to 35 had done the wrongful acts under the Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** leadership of accused 1 to 3. 9. PWs 2, 3 and 4 supported the prosecution case. The trial court mainly relied on the oral evidence of PWs 1 to 4 and entered a finding that the accused trespassed into the property owned and possessed by PW1's father and committed waste therein. It is clear from their evidence that accused 4 to 35 under the leadership of accused 1 to 3 had succeeded in widening a road to the detriment of PW1 and his family. - 10.In connection with the incident, PW1's father, Imbichi Moyi, filed OS No. 88 of 1994 before the Sub Court, Kozhikode, claiming damages. Exts.P7 and P8 are the decree and judgment passed in the said case. In Ext.P8, the following were arrayed as defendants; 1. Karuthaparamba Mysore Mala Road Vikasana Samithi 2. Joseph Thomas (Accused No.2) 3. P.C.Abdurehiman (Accused No.3) 4. Koyakutty Thiruthiyil (Accused No.1) Crl.RP No.2762/2004 ..11.. 5. Poyilil Paithal (Accused No.32) 6. Appu Nair (Accused No.31 7. Abdul Salam (Accused No.35) 8. Krishnan Kutty (Accused No.5) 9. Rajendran Nair (Accused No.10) 10. Panchayath 11.Going by Ext.P8, it does not contain any specific allegation against defendants 2 to 9 other than a general allegation of trespass and mischief. It is further alleged that around 70 persons under the leadership of defendants 2 to 9 had trespassed and committed waste in the property. The trial court granted a decree of mandatory injunction, directing the defendants to restore the plaint B schedule property to the corresponding sides of the plaint A schedule. The trial court also restrained the defendants from trespassing into the property of PW1's father. PW1's father was allowed to realize a sum of Rs.1 lakh from defendants 2 to 9 personally, jointly and severally in case of failure on Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** the part of the defendants to obey the decree. The cost of the suit was also awarded. Exts.A1 to A4 documents produced before the civil court would indicate that PW1's father, Imbichi Moyi, was the owner in possession of the property on the date of the suit. Imbichi Moyi filed the suit as plaintiff and sought a decree for both prohibitory and mandatory injunctions and other reliefs. PW1 was examined in the said suit for and on behalf of his father. Strangely enough, PW1's father was neither questioned by the police nor was he examined before court to prove the possession in accordance with law. So far as Section 441 of the IPC is concerned, it is necessary to prove that the accused criminally trespassed into the property for committing waste therein. The term “criminal trespass” is defined under Section 441 of the IPC. It is necessary on the part of PW1 to prove that he Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** has been in possession of the property on the date of alleged trespass. The mere statement that PW1 has been residing along with his father itself is not sufficient to infer that he has been in possession of the property. The non examination of PW1's father in this case is material in the facts and circumstances of the case. It has come out in evidence that PW1's father lodged a civil suit before the civil court subsequent to the occurrence and he prosecuted the matter as plaintiff in the said case. 12.The occurrence in this case took place at 10 pm on 11.12.1993. According to the prosecution, all the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and they criminally trespassed into the property of PW1's father. There is no evidence to show that all the accused were armed with deadly Crl.RP No.2762/2004 ..14.. weapons on the date of occurrence. In fact, the presence of all the accused were not proved in evidence. In **Suresh** v. **State of Kerala** [2006 (1) KLT 78], a Division Bench of this Court held that the conviction of the accused for the offence under Section 148 of the IPC without a finding that those, who were so convicted, were armed with deadly weapon, is unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for the mere reason that they were members of an unlawful assembly. The identification of the accused in the court room is not clear. The specific overt acts were not proved in evidence. The presence of accused 1 to 35 was also not proved in evidence. It is very difficult for this Court to believe that PWs 1 to 4 identified accused 1 to 35 during night hours as spoken by them. Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** When a dispute arises as to the identity of the accused, which is required in situations where a group of persons assembled and in furtherance of their common object committed the offences as alleged during night hours, it is practically not possible to identify them at a later stage with various mechanisms such as body structure, height etc. before the court. Merely because a civil suit was decreed against some of the accused, it could not be taken as a ground to convict the accused in a criminal case. The occurrence in the criminal case took place long before the institution of the suit. In the civil suit, the claim of PW1's father was allowed and decree was granted in his favour. The civil court decree in favour of PW1's father is not a ground to convict the accused for the offences alleged against them. 13.The occurrence in this case was on 11.12.1993 Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** at 10 pm. The private complaint was filed before the court alleging commission of the aforesaid offences on 12.05.1994. There was inordinate delay in lodging the complaint before the court. According to PW1, various complaints filed before the police having no avail, PW1 was constrained to file a complaint before the court on 12.05.1994. The civil suit was filed in 1994. Having considered the facts of the case, this Court is of the view that the delay in filing the criminal complaint has not been properly explained. 14.Section 149 of the IPC incorporates principles of vicarious liability. Before a person is held vicariously liable for the offence committed in prosecution of the common object, there must be some proximate connection between the common object of the members and the common object of that assembly. Prosecution must prove that the accused were Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** not only the members of the unlawful assembly but also they shared the common object of the said assembly at the time of occurrence. No such evidence was adduced in this case. - 15.The allegation of criminal trespass and mischief was not proved in evidence. There is no legal evidence to prove that the accused committed criminal trespass and mischief on the date of occurrence. The finding by the civil court is not a guideline to convict an accused in a criminal case. Appreciation of evidence in a civil case is based on preponderance of probability, whereas, in a criminal case, it is based on proof beyond doubt. In the case on hand, the prosecution has not succeeded in proving the offences alleged against the accused beyond doubt. 16.Pending revision, the following persons died as per the statement submitted by the learned counsel for the revision petitioners; Crl.RP No.2762/2004 **==> picture [37 x 8] intentionally omitted <==** 1. Abdurahiman P.C.(Accused No.3) 2. Abdul Rasheed (Accused No.4) 3. Muhammed Thazhathel (Accused No.11) 4. Alikutty Thazhepoyil (Accused No.13) 5. Mani (Accused No.14) 6. Abdul Rasheed (Accused No.17) 7. Abdul Majeed (Accused No.22) 8. Balakrishnan (Accused No.23) 9. Velayudhan (Accused No.26) 10. Appu Nair (Accused No.31) 11. Paithal (Accused No.32) 12. Muhammed (Accused No.34) Hence, the sentence of imprisonment as against them stands abated. The sentence of fine does not abate. Since common questions of law and facts are to be decided in this revision, it is necessary on the part of this Court to decide the legality of conviction and sentence imposed against all the accused, who preferred this revision. 17.The revision petitioners have been facing criminal prosecution since 11.12.1993. They have undergone the agony of criminal prosecution before various courts. Out of the accused, 13 are no more. PW1's father Crl.RP No.2762/2004 ..19.. instituted a civil suit and redressed his grievance. Under the circumstances, the conviction and sentence imposed against the revision petitioners are liable to be set aside. The trial court appreciated the evidence in a criminal case based on a decision of the civil court. It is patently wrong. In the result, the revision petition is allowed. The judgment of conviction and sentence passed by the trial court, which is later confirmed in appeal, is set aside. The revision petitioners are acquitted. Cancelling their bail bond, this Court directs that they be set at liberty. Fine, if committed, will be released to the revision petitioners in accordance with law. ## **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/- Crl.RP No.2762/2004 ..20..