State of Kerala v. Venugopalan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936 CRL.A.No. 160 of 2007 (D) -------------------------CC 177/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,PALAKKAD APPELLANT(S)/COMPLAINANT: ------------------------------------------------ STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (SUB INSPECTOR OF POLICE, MANKARA, CRIME NO.2/1997) BY PUBLIC PROSECUTOR SMT.V.H.JASMINE RESPONDENT(S)/ACCUSED: -------------------------------------------- V.M.VENUGOPALAN S/O.MADDHAVAN, VALLURTHODI VEEDU, MANKURUSSI MANKARA, PALAKKAD. BY ADV. SRI.M.SASINDRAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2014 , ALONG WITH CRRP. 2506/2005, THE COURT ON 22-05-2014 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** **-------------------------------------Crl.Appeal No.160 of 2007 & Crl.R.P.No.2506 of 2005 -------------------------------------Dated this the 22[nd] day of May, 2014.** ## **COMMON JUDGMENT** Aggrieved by the judgment of the learned Magistrate acquitting the accused charged with offences under Section 5(1)(iii) of the Malabar Irrigation Works (Construction and Levy of Cess) Act, 1947 (in short, “the Act”) and Section 430 of the Indian Penal Code (in short, “IPC”), the State has come up in appeal. The defacto complainant, aggrieved by the acquittal of the accused, preferred a revision against the same judgment. Since both matters arise out of the same judgment, they were heard together and disposed by this common judgment. 2. Prosecution case, in brief, is that the accused obstructed free flow of water through a channel connected to an irrigation work, which leads up to the paddy field of PW1. Prosecution thereby contended that the accused is guilty of the aforementioned offences. 3. At the time of trial, the prosecution examined 12 witnesses and marked 19 documents. DW1 was examined and Ext.X1 was marked on the side of the accused. Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 2 4. Heard the learned Public Prosecutor, learned counsel for the petitioner in the revision and the learned counsel for the accused. 5. Before venturing to discuss the legal aspects, I shall make a mention of certain facts, which cannot be now disputed by both sides. The revision petitioner/defacto complainant approached the Sub Divisional Magistrate concerned complaining that the accused had filled up the water channel in dispute and sought remedy under Section 133 of the Code of Criminal Procedure (in short, “Cr.P.C.”). It is pertinent to note that the defacto complainant has a case that the disputed water channel is a sub canal of Malampuzha Irrigation Canal. Aggrieved by the direction of the Sub Divisional Magistrate to restore the channel allegedly filled up by the accused, he filed a Criminal revision before the Sessions Court, Palakkad. Certified copy of the order in the revision is Ext.P1. Since the revision petition was dismissed, the accused approached this Court with Crl.M.C.No.3347 of 2000, which was also dismissed confirming the order passed by the sub Divisional Magistrate. Ext.P2 is the order of this Court in Crl.M.C. Thereafter, the defacto complainant (PW1) approached the Sub Divisional Magistrate for restoring the channel. While so, there was a complaint raised by the defacto complainant that in spite of approaching the Police, they did not take prompt action for implementing the order. Hence, he approached this Court with an Original Petition, O.P. No.19016 Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 3 of 2002, wherein this Court after considering the entire matters, directed the Sub Divisional Magistrate to see that the water channel in question was kept open always and to take appropriate action to remove the obstruction in the water channel. That order has become final. Therefore, the learned Magistrate's finding that the accused cannot now contend that there is no such water channel is to be upheld. It is interesting to note that the accused filed a civil suit seeking a permanent prohibitory injunction against the defacto complainant, the judgment of which is marked as Ext.P19. The suit was dismissed, negativing the contentions raised by the accused against the defacto complainant. That is an added reason to find that the accused cannot now be heard to say that there existed no water channel as claimed by the defacto complainant. 6. Nature of the water channel is certainly a relevant factor for resolution of the dispute . The defacto complainant would contend that the water channel is a sub canal constructed and controlled by the Irrigation Department. Per contra, the accused at the time of evidence has taken up an alternate contention that the water channel runs through his private property and the Government has neither constructed the same nor maintained the same. Determination of nature of the channel is essential to find out whether the offences alleged against the accused have been made out. Before going through the evidence, I shall consider the legal Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 4 basis of the claim raised by the defacto complainant. 7. The Act is intended to provide for construction of irrigation works and levy of water cess by the Government in the District of erstwhile Malabar. There is no quarrel that the property in question is situated in that part of the land, which fell within the limits of erstwhile Malabar District. Certain definitions in the Act will be relevant for resolution of the dispute. In Section 2(c), the term 'irrigation work' has been described as an inclusive definition. It reads as follows: _“Irrigation work includes-_ _(i) all canals, channels and reservoirs constructed, maintained or controlled by the Government for the supply or storage of water for purposes of irrigation;_ _(ii) all dams, embankments, weirs, sluices, groins and other works connected with such canals, channels and reservoirs;_ _(iii) all supply escape or drainage channels connected with such canals, channels and reservoirs;”_ In Section 2(f), we find a precise definition for ' watercourse' as follows: _“”watercourse” means a river, stream, natural channel, lake or natural collection of water and includes any tributary or branch of any river, stream or channel.”_ Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 5 The allegation made against the accused is that he has contravened the provisions in Section 5 of the Act dealing with consequences of construction of irrigation works. The penal provision reads as follows: _“_ _**5. consequences of construction of irrigation works** :-(1) Notwithstanding any law, custom or usage to the contrary whenever the Government construct an irrigation work for utilizing the water in a watercourse -_ _xxxxxx_ _(iii) no person shall, without the sanction of the District Collector or any officer authorized by him in that behalf, do anything which obstructs or interferes or is likely to obstruct or interfere with the flow of water in such watercourse or any other watercourse with which it is or may be connected._ _............”_ Learned counsel for the revision petitioner also relied on Sub-section (2) of Section 5 of the Act, which reads as follows: _“The provisions of sub-section (1) shall also apply to any water course utilized by the Government for leading water for purposes of irrigation from a tank constructed by them.”_ The term 'irrigation work' defined under the Act would take in all canals, channels and reservoirs falling within the definition and they should be Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 6 constructed, maintained or controlled by the Government. Such constructions are for the supply or storage of water for the purpose of irrigation. It takes in all dams, embankments, weirs, sluices, groins and other works connected with canals, channels and reservoirs falling in Subclause (i), thereby meaning that items mentioned in Sub-clause (ii) should be connected with canals, channels, reservoirs, etc. constructed, maintained or controlled by the Government. It further says that all supply, escape or drainage channels connected with canals, channels and reservoirs constructed, maintained or controlled by the Government will also form part of an irrigation work. Essential thing to be noted here is that all things connected to canals, channels and reservoirs, which are constructed, maintained or controlled by the Government, form part of the irrigation work defined under the Act. If that be so, in case there is no evidence to hold that the disputed channel is neither a sub-canal constructed, maintained or controlled by the Government nor is it is a watercourse falling within the definition quoted above, no offence could be said to have been made out. 8. In this context, I shall analyse the definition of 'watercourse'. It means a river, stream, natural channel, lake or natural collection of water and it includes any tributary or branch of any river, stream or channel. It is so glaring that the term 'watercourse' takes in only naturally existing things. Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 7 Now we shall turn to the penal provision in Section 5 of the Act. As quoted above, an offence under Section 5(1)(iii) of the Act is made out if a person without the sanction of the District Collector or any officer authorized by him in that behalf, do anything which obstructs or interferes or is likely to obstruct or interfere with the flow of water in such watercourse or any other watercourse with which it is or may be connected. On a careful reading of the opening words of Section 5 of the Act, it is evident that it deals with consequences of construction of irrigation work by the Government by utilizing the water in a watercourse. On a conjoint reading of the definitions of words “irrigation work” and “watercourse” as stated above with Section 5 of the Act, it is discernible that if the Government construct an irrigation work including canals, channels and reservoirs and all appendages thereto for utilizing water in a watercourse, viz., river, stream, natural channel, lake, etc. which naturally occurs, then no person without the sanction of the District Collector or other authorized officer shall obstruct or interfere with the flow of water. To be more explicit, in order to attract an offence under Section 5(1)(iii) of the Act, it has to be found that the Government constructed an irrigation work for utilizing the water in a watercourse. In this case, admittedly the disputed channel is allegedly a part of irrigation work of Malampuzha Irrigation Project. But, the disputed channel by itself cannot be termed as a watercourse, going by the definition. So, as Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 8 mentioned earlier, it must be established by the evidence that the disputed channel forms part of an irrigation work constructed, maintained or controlled by the Government for the supply of water. Understanding the law as aforementioned, now we shall turn to the evidence in the case. 9. PW1 is the defacto complainant. He is a farmer owning paddy field in which cultivation was done by using water from Malampuzha Irrigation Project. According to his testimony in chief-examination, a canal supplying water from Malampuzha Irrigation Project cut across PalakkadOttappalam Main Road and after proceeding 200 metres towards south, it gives out water through a sluice to the eastern side. According to PW1 that channel into which the sluice is opened is a sub-canal. Water discharged through the sluice after passing through the property of one Chandran and that of the accused, goes upto his paddy field and thereafter to other paddy fields owned by other persons. This definite case of PW1 was shattered in cross-examination. He admitted that he does not know whether the water channel in dispute is part of the property owned by the accused. He has no idea as to whether the land through which the alleged sub-canal passes had been acquired by the Government. He further admitted that a report had been filed by the Tahsildar to the District Collector stating that there was no Government canal at the disputed site. In spite of the fact that PW1 had paid water cess, as evidenced by Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 9 documents produced, he would admit that those receipts would not indicate that he had taken water to his paddy field through the disputed channel. It is pertinent to note that the accused has a definite case that water from Malampuzha Irrigation Project reaches upto PW1's property through another route. It appears that PW1 in cross-examination claimed some sort of an easementary right over the disputed water channel, which can only be a private right. The court below observed that even according to PW1's evidence, the alleged incident of filling up water channel by the accused occurred on 29.08.1996, but he filed a complaint only on 11.12.1996. Court below was of the opinion that this delay could not be explained properly by PW1 despite that he was aware of the fact that from 1994 onwards the accused was attempting to destroy the water channel. Totality of evidence of PW1 would show that the water channel claimed by him is not one constructed, maintained or controlled by the Government. 10. To crown this debility in PW1's evidence, testimony of DW1 was also pressed into service by the learned counsel for the accused. DW1 was the Assistant Engineer in the Mundoor Office of Malampuzha Canal Section. When examined, she stated that she could not get any plan relating to the disputed water channel kept in the office. Ext.X1(a) is a sketch prepared by DW1. That was prepared in the year 2002. Ext.X1(a) would not indicate that the disputed channel formed part of an irrigation Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 10 work defined in the Act. Therefore, PW1's evidence read with that of DW1 would show that the disputed water channel was not constructed, maintained or controlled by the Government. 11. PW2 deviated from his previous statement and failed to support the prosecution case that the accused filled up the disputed water channel. PW3 also turned hostile to the prosecution. PW4 claimed to be the convenor of the padasekara committee (farmers' association). He also deposed that he was unaware as to whether any document was kept by the Government relating to construction or maintenance of the disputed channel. Accused has a definite case that PW1 can lead Malampuzha Irrigation water to his paddy filed through another route. Testimony of PW4 will not establish the prosecution case to find that the accused filled up the water channel. PW5 would depose that the disputed water channel was not filled up by the accused, but it was destroyed long before the alleged incident on account of heavy rain. PW6 was the previous owner of the property presently belonging to the accused. He would say that at the time of sale of land in 1986 there was a channel in existence in the property. PWs 7 and 8 also turned hostile to the prosecution case and they failed to support the prosecution that they signed on the scene mahazar. Evidence adduced by other witnesses will also not establish the prosecution case to find guilt of the accused. Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 11 12. Learned counsel for the revision petitioner relied on Ext.P17 scene mahazar. It only shows that at the time of preparing this document, there were remnants of a water channel in a partly filled up condition. Merely for that reason, as observed by the court below, it cannot be held that the accused destroyed the water channel as alleged by the prosecution. Learned Magistrate is absolutely right in finding that in a criminal proceeding the guilt of the accused cannot be presumed. Of course, this rule is subject to anexception that if the statute itself contains provisions for presuming guilt of the accused on certain situations, then the above principle will have to give way. However, none of the provisions in the Act prescribes for such a presumption. Hence it becomes the burden of the prosecution to establish the guilt of the accused beyond reasonable doubt. Evidence adduced by the prosecution in this case is insufficient to hold that the accused filled up the water channel as alleged by the prosecution. 13. Now the question remaining is regarding the applicability of Section 430 IPC. It reads as follows: ## _“_ _**Mischief by injury to works of irrigation**_ _**or by wrongfully diverting water** .- Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural_ Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 12 _purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”_ To attract an offence under Section 430 IPC, it must be proved that an accused has committed mischief and the result of the mischief causes or likely to cause diminution of supply of water for agricultural purposes. Section 425 IPC defines the term 'mischief'. It reads as follows: _“_ _**Mischief** .- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits”mischief”_ _Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not._ _Explanation 2.- Mischief may be committed by an_ Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 13 _act affecting property belonging to the person who commits the act, or to that person and others jointly.”_ It must be established by evidence that the accused, with intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or to any person, causes the destruction of any property resulting in destruction or diminishing its value or utility, or affecting the property injuriously is said to commit a mischief. All these acts require positive evidence. Considering the evidence adduced, I am of the definite view that the accused cannot be said to have committed mischief and, therefore, the basic requirement of Section 430 IPC has not been satisfied. Therefore, court below is right in holding that the penal provision under Section 430 IPC is also not attracted. 14. Learned counsel for the defacto complainant relied on the decision of the Supreme Court in **Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)** to contend that in all criminal cases there shall not be insistence on plurality of witnesses. Learned counsel also contended that it may do injustice if the court insists corroboration of testimony of a single witness. The proposition that the court can take a decision on the testimony of a single witness, if it inspires confidence and credibility in the mind of the court, is trite. There cannot be any dispute on the proposition, Crl.Appeal No.160/2007 & Crl.R.P.No.2506/2005 14 as a general rule, that a court can and may act on the testimony of a single witness though uncorroborated. But the testimony of PW1 is totally shaky and insufficient to establish the alleged offences. Therefore, the principles in the above decision cannot be applied to the facts in this case. Considering the facts and circumstances of the case and the legal aspects, I am of the view that the court below is correct in finding that the prosecution failed to establish the guilt of the accused. In the result, the appeal and the criminal revision are dismissed confirming the judgment of the learned Magistrate. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**