State of Kerala v. Raphel and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **MONDAY, THE 24TH DAY OF SEPTEMBER 2012/2ND ASWINA 1934** ## **CRL.A.No. 1430 of 2004 ( )** **-------------------------AGAINST THE ORDER IN CC.654/2001 of J.M.F.C.-I,KOCHI** ## **APPELLANT(S)/COMPLAINANT: ------------------------** **STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV. GOVERNMENT PLEADER** ## **RESPONDENT(S)/ACCUSED:** **----------------------** **1. RAPHEL, S/O.VINCENT, KURISUNKAL VEETTIL, CHELLANAM VILLAGE SOUTH CHELLANAM.** **2. MOHANAN, S/O.KURIKILAN, THAREPPARAMBIL, MARUVAKKADU DESOM, CHELLANAM.** **3. SOURI @ XAVIER, S/O.ARNOSE, AKKUVEETTIL, CHELLANAM.** **4. JOY, S/O.EEASI, MADATHILPARAMBIL VEETTIL, MARUVAKKADU, CHELLANAM.** **5. REVI, S/O.RAMAN, MANJADIPARAMBIL VEETTIL, CHELLANAM.** **6. VARGHESEKUTTY @ VARGHESE, S/O.JOSEPH, MUNDUPARAMBIL VEETTIL, CHELLANAM.** **7. KUNJUMON @ FRANCIS XAVIER, S/O.JOSEPH, THAREPARAMBILVEETTIL, CHELLANAM VILLAGE.** **8. JOHN, S/O.ARNOSE, KALLUVEETTIL, CHELLANAM VILLAGE.** **9. JOSSY @ JOSEPH, S/O.XAVIER, AMATTUKULANGARA VEETTIL, CHELLANAM, VILLAGE CHELLANAM.** **10. ANTHONY @ ANTONY, S/O.FRANCIS, MUNDUPARAMBILVEETTIL, CHELLANAM VILLAGE, CHELLANAM.** **11. JOJI @ ANDREWS, S/O.PATHROSE, ARATTUKULANGARAVEETTIL, CHELLANAM VILLAGE CHELLANAM.** 2 **CRL.A.No. 1430 of 2004** **12. JOSEPH, S/O.PATHROSE, ARUKULASSERIVEETTIL, CHELLANAM VILLAGE, CHELLANAM.** **13. JOSHI @ MAICHEL, S/O.THANKACHAN, ARATTUKULANGARA VEEDU, CHELLANAM.** **14. XAVIER, S/O.JOSEPH, VELUTHA MANNUNAKAL VEETTIL, CHELLANAM.** **15. ANTI @ XAVIER, S/O.PETER, ARAYASSERI, CHELLANAM.** **16. CLEMENT @ JOSEPH, S/O.VASTHIAN, KUTTIVEETTIL, CHELLANAM VILLAGE, CHELLANAM.** **17. JOSSY @ ILLIYAS, S/O.VARGHESE, EERASSERIVEETTIL, CHELLANAM VILLAGE.** **18. SEBU @ SEBASTIAN, S/O.JOSEPH, MUNDUPARAMBIL VEETTIL, CHELLANAM.** **19. BABU @ JOSEPH, S/O.PETER, ARAYASSERI VEETTIL, CHELLANAM.** **20. VARGHESE, S/O.JAMES, VELUTHAMANNUNKAL VEETTIL, CHELLANAM.** **21. XAVIER, S/O.MICHIAL, ARATTUKULANGARAVEETTIL, CHELLANAM.** **22. BABU @ RAPHEL, S/O.SIRIL, MUNDUPARAMBIL, CHELLANAM.** **23. THOMAS, S/O.JOSEPH, ALUNKALVEETTIL, CHELLANAM.** **24. JOHNKUTTY @ JOHN, S/O.JAMES, VELUTHAMANNUNAKKAL, CHELLANAM.** **25. JAICO @ JOSEPH, S/O.XAVIER, ARUKULASSERIVEEDU, CHELLANAM VILLAGE.** **26. NELSON @ VARGHESE, S/O.XAVIER, THAIPARAMBIL, CHELLANAM VILLAGE.** **27. ANTONY @ THOMAS, S/O.VARGHESE, VELUTHAMANNUNKAL, CHELLANAM VILLAGE.** **28. PETER, S/O.PEELI, ARAKKALVEETTIL, CHELLANAM.** **29. XAVIER, S/O.PONCHO, MUNDUPARAMBIL VEETTIL, CHELLANAM.** 3 **CRL.A.No. 1430 of 2004** **30. KUNJUMON @ SANDHYAVU, S/O.BENCHAMIN, THAIVEETTIL, CHELLANAM VILLAGE.** **31. JACKSON, S/O.ANTONY, KUNNELVEETTIL, CHELLANAM.** **32. SEBASTIAN @ VASTHINKUTTY, S/O.PONCHO, MUNDUPARAMBU VEEDU, CHELLANAM VILLAGE.** **33. MAICHAL, S/O.BASTIAN, KUTTIVEETTIL, CHELLANAM.** **34. TONY @ SAIMON, S/O.CLEMENT, ARUKLULASSERI VEETTIL, CHELLANAM.** **35. SHIBU @ JOSEPH, S/O.ANTONY, KUTTIVEETTIL, CHELLANAM.** **36. CHINNAPPAN @ PATHROSE, S/O.JUSEA, ARATTUKULANGARA VEEDU, CHELLANAM.** **37. SAIMON, S/O.VINCENT, KAITHAVALAPPIL, CHELLANAM.** **38. THANKACHAN @ NELSON, S/O.MICHAEL, ARATTUKULANGARA, CHELLANAM.** **39. SABU @ PIOUS, S/O.VARGHESE, THAIVEETTIL, CHELLANAM.** **40. KUNJAPPAN @ XAVIER, S/O.JOSEPH, THAREPPARAMBIL.** **41. THOMAS @ ANTONY, S/O.XAVIER, KADAPPURATHUVEETTIL, CHELLANAM.** **42. HENTRY @ THADEVOOS, S/O.JOHN, KAITHAVALAPPIL, CHELLANAM VILLAGE, CHELLANAM.** **BY ADV. SRI.K.C.ELDHO FOR RESPONDENTS BY ADV. SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.1430 of 2004** ## **------------------------------Dated this the 24[th] day of September, 2012.** ## **J U D G M E N T** State is the appellant and the challenge is against the judgment dated 13.4.2004 in C.C.No.654 of 2001 of the court of Judicial First Class Magistrate-I, Kochi, by which the learned Magistrate acquitted all the 42 accused under section 248(1) of Cr.P.C. who faced the prosecution for the offence punishable under section 143, 147, 447, 379 r/w 149 of IPC. 2. The first respondent, who is the first accused, is no more and therefore the above appeal is abated as far as the 1[st] accused is concerned. 3. The case of the prosecution is that the defacto complainant one Valiyaparambil Kunjappan is an agriculturist engaged in fish farming at Chellanam village at Maruvakkad desom situated about 500 mtrs. north-east 2 ## **Crl.A.No.1430 of 2004** of the Velamkanni church at Chellanam. According to him, he is carrying out fish-farming in an extent of 5 acres of land in Sy.No.27/1 of the Chellanam village. According to the defacto complainant, on 22.1.2000 at 7 a.m., the accused in prosecution of their common object formed themselves into an unlawful assembly and committed criminal trespass into his fish-farm and committed theft of prawns from his field causing a loss of `10,00,000/- to the defacto complainant. On the basis of the above allegation, crime no.7/2001 was registered in the Kannamali police station for the said offences. On completing the investigation, report was filed in the trial court whereupon cognizance was taken for the offences punishable under section 143, 147, 447, 379 r/w 149 of I.P.C. and consequently C.C.No.654/01 was instituted. During the trial of the case, Pws.1 to 10 were examined and Exts.P1 to P5 were marked from the side of the prosecution. From the side of the defence, Dws.1 to 3 were examined and Exts.D1 3 ## **Crl.A.No.1430 of 2004** to D7 were marked. The trial court after considering the entire evidence and materials, came into a conclusion that the prosecution has failed to prove its case beyond reasonable doubt and accordingly found in favour of the accused that they are not guilty of the offences under section 143, 147, 447, 379 r/w 149 of I.P.C. and consequently they are acquitted under section 248(1) of Cr.P.C. It is the above findings and order of acquittal that are challenged in this appeal. 4. I have heard Smt.S.Hyma learned Public Prosecutor for the State and Sri.K.C.Eldho learned counsel for the contesting respondents. 5. The crux of the prosecution allegation is that the accused 42 in numbers had trespassed into the property of PW1 at about 7 a.m. on 22.1.2000 and committed theft of prawns from the fishing-farm of the defacto complainant and thereby committed the offences so charged against the accused. Whereas the specific contention taken by the 4 ## **Crl.A.No.1430 of 2004** accused is that, they are falsely implicated in the crime, since there was a long standing dispute between the agricultural labourers, who are the accused herein and owners of the property in Chellanam village, regarding the paddy cultivation and fish-farming. To prove the prosecution allegation, the prosecution mainly depends upon the evidence of Pws.1 to 3 and PW7, and also Pws.8 to 10. Though Pws.4, 5 and 6 were cited as occurrence witnesses and examined to prove the case of the prosecution, they turned hostile. Among Pws.1, 2, 3 and 7, PW7 is the son of PW1, whereas Pws.2 and 3 are the brothers of PW1. Of course, when Pws.1, 3 and 7 were examined, they deposed in terms with the prosecution allegation. But the main evidence of the prosecution is that of PW1 who is the defacto complainant. When PW1 was examined, the prosecution has got marked Ext.P1 complaint through him. He had also stated that the accused came to his fish -farm and committed theft of the prawns at about 5 ## **Crl.A.No.1430 of 2004** 7 a.m. on 22.1.2000. PW1 has also stated that with respect to the above incident, he had contacted the police over telephone at 7 a.m. itself on 22.1.2000 and thereafter he went to the police station at about 3 p.m. on the same date and launched the complaint. PW1 has also stated about the civil suit preferred by him against certain accused in the present case. When PW2 was examined, he had also deposed supporting PW1 and Ext.P2 scene mahazar was marked through him. PW3 has also supported the case of PW1 and the defence has got marked Ext.D1-the CD portion of his 161 statement. PW7 also supported the prosecution case and deposed in terms of PW1. 6. PW8 is the then Village Officer of Chellanam village through whom Ext.P3 letter was proved by the prosecution showing that Pws.1 and 2 and other persons, namely one Joseph and Thomman are in possession of certain extent of land. Ext.D1 photostat copy of the tax receipt issued from the Village office is also marked through PW8 by the 6 ## **Crl.A.No.1430 of 2004** defence. PW9 is the then Sub Inspector of police, Kannamali police station who undertook the investigation. When he was examined, Ext.P4 report dated 5.4.2001, giving the correct name and address of the accused, was marked through him. Besides the above, Ext.D2 plaint in O.S.No.725 of 2001 in which PW9 is also a defendant, Ext.D3 judgment, Ext.D4 decree in the above suit and also Ext.D5 order in O.P.No.16977 of 2000 of this Court are also marked through PW9. It was PW10 who recorded the FI statement of PW1 based upon which Ext.P5 FIR was registered. Exts.D6 and D7 documents were marked through DW3. 7. The learned Magistrate after an elaborate consideration and appreciation of the evidence came into the conclusion that there is delay in registering the FIR. It is also found by the learned Magistrate that no explanation is forthcoming from the prosecution side in not mentioning the names of all the accused in the Ext.P5 FIR. Another 7 ## **Crl.A.No.1430 of 2004** important finding of the learned Magistrate is that the prosecution has miserably failed to prove the identity of the accused legally and properly. According to the learned Magistrate, the prosecution has miserably failed to establish the essential ingredients of section 379 and that PW1 does not have an exclusive possession over the property in question and also found that there was no proper investigation. It is on the basis of the above findings, the learned Magistrate acquitted the accused. 8. The learned Public Prosecutor submitted that the facts and circumstances involved in the case show that there was no delay in registering the FIR since the incident was reported in the police station at about 7 a.m. and the police came at the spot at about 7.30 a.m. and subsequently on the very same date at about 3 p.m., Ext.P5 FIR was registered. Thus according to the learned Public Prosecutor, there is no delay at all. It is also the submission of the learned Public Prosecutor that the evidence of Pws.1 8 ## **Crl.A.No.1430 of 2004** to 3 and 7 coupled with the documentary evidence shows that the prosecution has succeeded in proving the number of persons involved in the incident and their identity. Hence the trial court is not correct in its finding that the prosecution has failed to prove the identity of the accused. It is also the case of the learned Public Prosecutor that on the strength of Ext.P3, the prosecution has proved that the property in question is owned and possessed by PW1 and hence the findings of the court below is contradictory to the above facts and circumstances and are liable to be set aside. The learned Public Prosecutor further submitted that the findings of the civil court, as such cannot be taken against the prosecution since the suit was dismissed mainly for the reason that only 7 persons were shown as defendants in the suit though the plaintiff - PW1 herein, claimed that 42 persons were involved in the incident. Hence according to the learned Public Prosecutor, the findings of the court below are not in accordance with the 9 ## **Crl.A.No.1430 of 2004** evidence and materials on record and the court below erroneously found that the prosecution has failed to prove the case beyond reasonable doubt. Therefore, according to the learned Public Prosecutor, the findings of the court below are liable to be reversed and the respondents/ accused are liable to be convicted. 9. On the other hand, learned counsel for the respondent/accused vehemently submitted that the findings of the court below points towards the inherent defect of the prosecution and the prosecution has miserably failed to prove the identity of the accused who are 42 in numbers. In support of the above submission it is pointed out that when Ext.P1 complaint was filed, the number of accused were shown as only 7 but when the charge was filed, the number of accused is shown as 42 and no explanation is forthcoming from the prosecution as to how the number of accused increased from 7 to 42. According to the learned counsel, Ext.P3, produced by the prosecution is not 10 ## **Crl.A.No.1430 of 2004** sufficient to prove that PW1 is in the exclusive possession and ownership over the property in question, and the failure on the part of the prosecution to prove the same goes against the very root of the prosecution allegation and the offence under section 379 of IPC. According to the learned counsel, in the absence of any evidence to prove the ownership and possession over the property it cannot be said that the prosecution has succeeded in proving the substantial offence under section 447 and 379 of IPC. It is also the submission of the learned counsel that as the trial court has already acquitted the accused, no interference is warranted since the appellant has miserably failed to make out any substantial or compelling reasons to interfere with such acquittal. 10. I have carefully considered the rival contentions advanced by the learned Public Prosecutor and the learned counsel for the respondent and I have also gone through the evidence and materials on record, which made available to 11 ## **Crl.A.No.1430 of 2004** me by the learned Public Prosecutor as well as by the learned counsel for the respondents. For the disposal of this appeal, I am constrained to depend and rely on the above documents, namely, the deposition of the witnesses and other materials and documents, as the lower court records are not available. 11. In the light of the above contentions and the available evidence and the materials, the question to be considered is whether the appellant has succeeded in making out a case to interfere with the findings of the court below and the order of acquittal recorded in favour of the respondents/accused and whether the findings of the court below is perverse and illegal. 12. I have already referred to the evidence and materials on record. Though the learned Public Prosecutor submitted that there is no delay in registering the crime on the basis of the evidence of PW1 and that he had informed the matter to the Sub Inspector of Kannamali police station, 12 ## **Crl.A.No.1430 of 2004** according to me, the said submission cannot be accepted in the absence of any evidence and materials to that effect. Though PW1 has claimed that he had informed about the incident to PW9 at 7 a.m., there is no corresponding entry in any of the records maintained in the Kannamali police station and no evidence is produced in the court in this regard. Though PW9 has also stated that he went to the spot in pursuance to the information received, to that effect also, there is no corresponding entry in the station records. Now the only documentary evidence is that of Ext.P5 FIR which was registered only at 3 p.m. on 22.1.2001. No explanation is forthcoming as to why the FIR is not properly recorded and the omission in mentioning the names of all the accused. Though PW1 claimed during his examination that he had acquaintance with all the accused, he failed to mention the names of all those accused in the FIR. There is no evidence or materials to convince the court as to how the police has implicated the accused in the police report, other 13 ## **Crl.A.No.1430 of 2004** than the persons whose names mentioned in the FIR and in the FI statement. Therefore, the above infirmities and contradictions are sufficient to create doubt regarding the very basis of the prosecution case and the investigation which claimed to have undertaken by PW9. So the delay, even though the same is for a short time, that occurred in filing the FIR is not properly explained by the prosecution. From the above facts it is clear that the subsequent implication of the accused, in the absence of any other materials, is also sufficient to generate doubt in the minds of the courts since the investigation does not shows as to how these persons were implicated subsequently. 13. Another ground which persuaded the court below to acquit the accused is the failure of the prosecution in establishing the identity of the accused. The learned Public Prosecutor submitted that when PW1 was examined, he had deposed before the court that he knows or had acquaintance with all the accused and therefore the learned 14 ## **Crl.A.No.1430 of 2004** Public Prosecutor on the basis of the decision reported in **Liyakat Mian and ors. Vs. State of Bihar [1973(4) SCC 39]** , has submitted that the identity of the accused is established. I am unable to sustain the above contention in view of the particular facts and circumstances involved in the case. Though PW1 claimed to have launched Ext.P1 complaint and registered Ext.P5 FIR, only 8 persons' names are mentioned therein. If actually PW1 has acquaintance with all the 42 accused, this Court is unable to understand why he did not mention those names in Ext.P1 complaint and consequently in Ext.P5 FIR. It is also relevant to note that the prosecution has no case that before the filing of the charge, all the accused were shown to PW1 and he had identified them. There is also no evidence to convince the court as to how the prosecution impleaded and implicated the accused-34 in numbers, other than those persons whose names were mentioned in Ext.P5 FIR, when they laid the charge. PW1, during his examination in the court, has not 15 ## **Crl.A.No.1430 of 2004** identified the person either by stating the name or by pointing the person or by some other manner. It is also relevant to note that according to the defence, the case is registered falsely at the instance of PW1, since there was a labour dispute between the firm owners and the labourers. PW1 has also admitted in Ext.D2 complaint in O.S.No.725 of 2001 regarding the dispute which referred above. Therefore, in the above circumstances, the mere claim of PW1 that he had acquaintance with all the accused and his evidence with respect to the identification of the accused in the trial court for the first time, especially when several persons are involved in the incident, can be attached no evidentiary value. Hence I find no reason to interfere with the findings of the court below that the prosecution has failed to establish the identity of the accused. 14. The substantial offence alleged against the accused is under section 447 and 379 of IPC. As rightly held by the learned Magistrate, to attract the offence under 16 ## **Crl.A.No.1430 of 2004** section 379 of IPC, the possession of the defacto complainant has to be proved beyond reasonable doubt. So also, to attract the offence under section 447 of IPC, the prosecution has also to prove the ownership and possession of the property to which the accused allegedly trespassed. In the present case, the only document produced by the prosecution is Ext.P3 which is a letter claimed to have issued by PW8 to the Investigating agency stating that three persons, including PW1, are in possession of certain extent of land, in survey no.27/1. The prosecution allegation is not specific and clear as to which portion of the land, lies in survey no.27/1, where the accused persons had trespassed and committed theft of prawns and whether such portion of land was within the exclusive possession and ownership of PW1. From Ext.P3 it is crystal clear that beside PW1, one Joseph and Thomman are also in possession of certain extent of land as mentioned in Ext.P3. It is relevant to note that Ext.P3 is only a letter and not a valid document which 17 ## **Crl.A.No.1430 of 2004** has got any legal sanctity to find out the exact person who is in the exclusive possession and ownership of the property in question. Therefore, it cannot be held that PW1 has got absolute ownership and exclusive possession over the property covered by Ext.P3 letter. In this juncture it is relevant to note that the learned Magistrate has also found that the Sub Inspector of police, Kannamali police station, registered another case as C.C.No.1175 of 2001 against the same accused and the incident in that case was allegedly taken place at about 9 a.m. and therefore it is observed by the learned Magistrate that the version of PW1 that the same accused had committed the offence in his property was between 7.30 to 8 o' clock in the morning rendered as unbelievable. Since according to PW1, the police had come in his property by 7.30 a.m. If that be so, it has to be considered that in C.C.No.1175 of 2001, the alleged offence was committed during the presence of police in the adjacent property, ie., the property belonging to PW1. It is also 18 ## **Crl.A.No.1430 of 2004** relevant to note that as per Ext.D1, which covers the survey number shown in Ext.P3, the property in question is in the name of some other persons. If that be so, it cannot be said that the prosecution has proved beyond reasonable doubt that the property in question, particularly which covers by Ext.P3, is in the exclusive possession and ownership of PW1. Therefore, I have no hesitation to approve the findings of the court below that the prosecution has failed in establishing the ingredients of section 379 of IPC. Regarding the claim for compensation also, PW1 has no consistent version and claim. Though PW1 claimed that he had sustained loss and entitled for compensation for `10 lakhs, in the police charge, the loss is assessed as only `1 lakh. In the civil suit, as evidenced by Ext.D2 plaint, the damage according to PW1 was only `2 lakhs but he claimed compensation only for `1 lakh. It is also relevant to note that in Ext.D7 notice, the claim was only for `2 lakhs as compensation. The above inconsistent version for 19 ## **Crl.A.No.1430 of 2004** compensation itself creates doubt about the veracity of the case of the prosecution against the accused. 15. Thus going by the judgment of the trial court it can be seen that, the trial court came into its own conclusion on the basis of the available evidence and materials and by assigning cogent and convincing reasonings, and therefore it cannot be said that the findings of the court below are illegal or the judgment of the trial court is perverse. 16. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.” The appellant in the present case has miserably failed to 20 ## **Crl.A.No.1430 of 2004** make out exceptional cases or compelling reasons to interfere with the order of acquittal recorded by the trial court. Therefore, I find no merit in this appeal. Accordingly, the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge