Musthan Koya and others v. The Deputy Superintendent of Police, Perinthalmanna and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936** **CRL.A.No. 2075 of 2003 ( E ) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 65/2001 of SPECIAL COURT (COURT OF SESSIONS), MANJERI DATED 28-11-2003.** **AGAINST THE ORDER/JUDGMENT IN CP 21/2000 of J.M.F.C.-II, PERINTHALMANNA.** **APPELLANT(S)/ACCUSED 1, 3 TO 10 :** **-------------------------------** **1. MUSTHAN KOYA, S/O UMMER, PARAYINKAL HOUSE, KAPPIL PO, WANDOOR VIA., PIN - 679 328 MALAPPURAM DISTRICT.** **2. MOHANAN, S/O CHANTHU, PULIKKAL HOUSE, KAPPIL, VADAKKEKKARA, WANDUR AMSOM, MALAPPURAM DISTRICT.** **3. RAMESH, S/O BALAN, KADANBATH HOUSE, WANDOOR AMSOM, KAPPIL.** **4. BASHEER, S/O MOIDEEN, PUTHOORAN HOUSE, KAPPIL, WANDUR.** **5. PRADEEP, S/O VELAYUDHAN, THARIYARA HOUSE, VADAKKEKKARA, WANDOOR AMSOM.** **CRL.A.No. 2075 of 2003 ( E ) -2-** **6. RADHAKRISHNAN, S/O RAMAN, PALLIKKATHODI, KAPPIL, WANDOOR AMSOM.** **7. PRASAD, S/O VASU, PERIKKATHRA HOUSE, WANDUR.** **8. ANEESH, S/O VIJAYAN, KARANAT HOUSE, KAPPIL.** **9. UNNIKRISHNAN, S/O KELU, THRIYARA HOUSE, KAPPIL.** - **BY ADV. SRI.K.M.SATHYANATHA MENON.** ## **RESPONDENT(S):** - **-------------** **1. THE DEPUTY SUPERINTENDENT OF POLICE, PERINTHALMANNA, MALAPPURAM DISTRICT.** **2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **amk** **A.HARIPRASAD, J. -----------------------------------------------Crl. Appeal No.2075 of 2003 -----------------------------------------------Dated this the 7[th] day of April, 2014.** ## **J U D G M E N T** Appeal filed under Section 374(2) Cr.P.C. The accused 1 and 3 to 10 in S.C No.65/2001 before the Special Court (Court of Session), Manjeri constituted for trial of offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act') have come up in appeal challenging the conviction and sentence imposed on them. 2. Prosecution case as borne out from the final report is as follows : On 14-09-1997, at about 7.00 p.m., the accused persons, as members of an unlawful assembly armed with weapons, committed rioting, trespassed into the courtyard of the house of CW3 and PW3, voluntarily caused hurt to PW's 1 to 3 and 7 to 10 by beating with hands and sticks and they uttered obscene **Crl. Appeal No.2075 of 2003 2** words towards the prosecution witnesses and thereby committed the offence under Sections 294(b) I.P.C, 143, 147, 148, 323, 324, 447 and r/w Section 149 I.P.C. Further, the accused intentionally insulted PW's 1 and 2 by calling their caste name in public view and thereby committed an offence under Section 3 (1)(x) of the Act, 1989. 3. On the information received regarding the offence, a crime was registered and the Deputy Superintendent of Police, Perinthalmanna conducted the investigation. After closing the investigation, a charge sheet was filed before the learned Magistrate. Finding that, this is an offence exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, Manjeri. Learned Sessions Judge (Special Judge) after framing the charge tried the case. Eleven witnesses were examined on the side of the prosecution and two defence witnesses were also examined. Exts.P1 to P18 and Exts.D1 to D11 marked. MO's 1 ## **Crl. Appeal No.2075 of 2003 3** and 2 are the material objects. 4. It is seen from the records that after the examination of all the injured witnesses, they were recalled by the trial court at the request of the accused by invoking Section 311 Cr.P.C. Simultaneously, all the injured witnesses and the accused filed a petition before the trial court intimating the court that they have amicably settled the matter out of court. It is specifically stated in the petition that the injured witnesses have no complaint against the accused persons. After recalling the material witnesses, they testified before the court that they have settled the matter out of court. Nevertheless, the trial court did not accept composition and convicted the accused and imposed fine on them. Aggrieved by this finding, the accused persons have preferred this appeal. 5. Heard the learned counsel for the appellants and the learned Public Prosecutor. ## **Crl. Appeal No.2075 of 2003 4** 6. Learned counsel for the appellants submitted that the conviction under Section 3(1)(x) of the Act is not maintainable for the reasons stated hereunder. PW1 is the member of Mannan Community. Ext.P12(a) is the community certificate issued by the Tahsildar, Nilambur and proved through PW5. The incident was on 14-09-1997. Learned counsel for the appellant would contend that as per the notification issued by the Government of Kerala dated 23-12-2003, a revised SC/ST list in respect of Kerala was published, after making amendments to the existing list. As per the amended list, Mannan Community was introduced from the above date as Entry No.37 by the Constitution (S.C) Orders (2[nd] amendment) Act, 2002. Therefore, it is evident that the community called 'Mannan' happened to be a Scheduled Caste only subsequent to the alleged incident. PW7 is also having a case that he is a member of Mannan Community. Both PW's 1 and 7 had contended that ## **Crl. Appeal No.2075 of 2003 5** the accused intentionally insulted and intimidated with an intent to humiliate them within public view. However, their case cannot hold good for the reason that the community to which they belong was enlisted as a Scheduled Caste only in 2002. Therefore, the conviction of the appellants in respect of this allegation is not sustainable. 7. PW2 is a witness belonging to Kalladi Community. Going by the notification referred to above, 'Kalladi' is a community falling within the definition of Scheduled Caste in the State of Kerala. PW2 would contend that he went to the place, where a melee was happening between the accused persons and the prosecution witnesses. The incident happened in the courtyard of PW3. When PW's 1 and 2 went to the place of occurrence, they were beaten up and asked as to what was the authority or business of a 'Mannan' and a 'Kalladi' to question the accused persons. PW2 stated that he was annoyed by calling ## **Crl. Appeal No.2075 of 2003 6** his caste name. The actual sentence spoken against PW2 by the accused persons read as follows : '' ഞങള ക�ണ�നത CW4ന�യ��, CW3യ�ന�യ�� പ�ത�കള വട�കക�ണ��, കകകക�ണ�� അട�ക�നത��, ചവ�ട നത�ക!�കകയ�ണ. . എക%�കകയ�ണ ക�ണ�ക�നത എന& ഞങള നച�ദ�ച . ഇത നച�ദ�ക�ന !ണ�ന!�ര�� കള�ട�കള � (written in the deposition as 'കല1�ട�കള �') വളരന�ട�ല1 എന& �റഞ& പ�ത�കള ഞങകള അട�ച '' The question to be decided is whether these statements of the accused persons would constitute an offence under Section 3(1) (x) of the Act. 8. In order to attract the offence under Section 3(1)(x) of the Act, the following ingredients will have to be satisfied : _1. The accused must not be a member of the Scheduled Caste or Scheduled Tribe._ _2. The complainant must be a member either of a Scheduled Caste or Scheduled Tribe._ _3. The accused must have intentionally insulted with intend to humiliate a_ ## **Crl. Appeal No.2075 of 2003 7** _member of Scheduled Caste or Scheduled Tribe._ _4. The accused must have intimidated a member of Scheduled Caste or Scheduled Tribe with intend to humiliate.._ _5. The above said acts must have been done within public view._ 9. Learned counsel for the appellants contended that the deposition of PW2 if read in its entirety would not show the satisfaction of any of the ingredients mentioned above. To support this contention, reliance is placed on the decision of the Apex court in _**Asmathunnisa v. State of A.P**_ ( _**A.I.R 2011 SC 1905)**_ . In that decision, the Supreme Court approved the principle of law stated by a Single Judge of this Court in _**E.Krishnan Nayanar v. Dr.M.A.Kuttappan**_ ( _**1997 Crl.L.J 2036)**_ . 10. Considering the essential requirements of the Section, I am of the opinion that the statement allegedly made **Crl. Appeal No.2075 of 2003 8** by the accused persons against PW2 do not constitute an offence falling under Section 3(1)(x) of the Act. Therefore, I am of the opinion that the conviction of the appellants under the provision of the Act, 1989 is legally not sustainable. 11. The trial court had taken note of the fact that the parties have settled the matter pending trial. Nevertheless, we find in paragraph 40 of the trial court's judgment that the court was rightly of the view that the offences under Sections 143, 147 and 148 I.P.C are not compoundable. Furthermore, the offence under Section 294(b) I.P.C is also not compoundable. If we go through the evidence of PW's 1, 2, 3, 7, 8 and 9, we find that there was an intense fight between two groups in the courtyard of PW3, wherein the above said witnesses sustained injuries. In spite of cross examination on the said witnesses, the defence was unable to establish that the incident did not happen as suggested by the prosecution. The injured witnesses, though ## **Crl. Appeal No.2075 of 2003 9** made minor contradictions at the time of examination, basically adhered to the prosecution case that the accused persons as members of an unlawful assembly armed with deadly weapons trespassed into the courtyard and caused hurt to the witnesses. However, reckoning the fact that the injured witnesses and the accused persons entered into a valid compromise and the injured compounded the offences, I am of the view that the conviction of the accused persons under Section 323, 324 and 447 I.P.C could not be sustained. Therefore, that part of the judgment needs to be interfered with. However, the conviction under Sections 143, 147,148 and 294(b) will have to he upheld. 12. Learned counsel for the appellants submitted that the first accused could secure an employment in Kerala State Electricity Board as 'Masdoor'. The matter has been settled between the parties as is evident from the judgment of the court below. Deposition of material witnesses also would show the ## **Crl. Appeal No.2075 of 2003 10** factum of composition. Learned Public Prosecutor submitted that the court below is legally correct in disallowing the composition in respect of offences under Sections 143, 147, 148 and 294(b). The dictum in _**Gian Singh v. State of Punjab and Another ((2012) 10 SCC 303)**_ deals with the power of this court under Section 482 Cr.P.C to quash a criminal compliant involving non compoundable offences in view of the compromise arrived at between the parties. However, this court's power while dealing with a criminal appeal cannot be equated to that under Section 482 Cr.P.C. The appellate powers are coextensive and co-terminus with that of the trial court. Therefore, I am of the view that the composition cannot improve the case of the accused in respect of non compoundable offences mentioned above. But considering the fact situation borne out from the records, I am of the view that the fine imposed by the court below can be reduced. ## **Crl. Appeal No.2075 of 2003 11** In the result, the appeal is partly allowed. Convictions of the appellants under Sections 323, 324 and 447 I.P.C are hereby set aside. Likewise, the conviction of the appellants under Section 3(1)(x) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also set aside. Convictions of the appellants under Sections 143, 147, 148 and 294(b) I.P.C are upheld. Each appellant shall pay a fine of Rs.200/- (Rupees two hundred only) for each of the offence under Sections 143, 147,148 and 294(b) I.P.C and in default of payment of fine each appellant shall undergo simple imprisonment for a period of fifteen days on each count. All pending interlocutory applications will stand dismissed. **Sd/-** amk //True Copy P.A to Judge