Tharayil Hamza Haji and Mukkannan Moosa Haji v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935 Crl.Rev.Pet.No. 3166 of 2004 ( ) --------------------------------- AGAINST THE JUDGMENT IN CRA 370/2002 of ADDL.SESSIONS COURT (ADHOC)-II, MANJERI DATED 14-10-2004 AGAINST THE JUDGMENT IN CC 1030/1996 of J.M.F.C.,MALAPPURAM DATED 26-11-2002 REVISION PETITIONERS/APPELLANTS/ACCUSED 1 & 2: ---------------------------------------------------------------------------------------------- 1. THARAYIL HAMZA HAJI, - AGED 63 YEARS, S/O.KUNHEEDU HAJI, MUNDUPARAMBA MALAPPURAM. 2. MUKKANNAN MOOSA HAJI, AGED 53 YEARS, S/O.MAMMUTTY, MORAYOOR, CHEMBAKKUNNATH. BY SR. ADV. SRI.M.K.DAMODARAN RESPONDENT/RESPONDENT/COMPLAINANT: ---------------------------------------------------------------------------- STATE OF KERALA(SUB INSPECTOR OF POLICE, MALAPPURAM (CRIME NO.177/96) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SMT.M.MADHUBEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AV ## **P.D.RAJAN, J. -----------------------------Crl.R.P.No.3166 of 2004** ## **-----------------------------Dated this the 11[th] day of April, 2013** ## **ORDER** Revision petitioners were convicted by the trial court under Sections 448, 353, 201 r/w 34 IPC and sentenced to undergo rigorous and simple imprisonment for different periods. The substantive sentences were ordered to run concurrently. An appeal filed was dismissed by the Additional Sessions Judge, Manjeri, confirming the conviction passed by the trial court. Challenging the said judgments this criminal revision petition has been preferred. 2. The prosecution allegation was that on 26.7.1996 at about 10.05 a.m., revision petitioners trespassed into the office of the Circle Food Inspector, Malappuram in building No.XIV/504 of Malappuram Municipality, while PW1 was preparing food samples for sending to the laboratory for examination, they destroyed the food samples and caused disappearance of evidence and thereby committed offences punishable under Sections 448, 353 & 201 r/w 34 IPC. On the basis of information, Head Constable of Police, Malappuram, registered a crime and after completing investigation, Sub Inspector of Police laid charge in the Judicial First Class Magistrate Court, Malappuram. 2 Crl.R.P.No.3166 of 2004 3. To substantiate the above allegation prosecution examined PWs.1 to 10 and marked Exts.P1 to P16 and admitted MO1 series in evidence. The incriminating circumstances brought out in evidence were denied by them, while questioning under Section 313 Cr.PC. They did not adduce any defence evidence. The trial court convicted the accused. Aggrieved by that, they preferred appeal before the Additional Sessions Court, Manjeri, where the conviction and sentence were confirmed by that court. 4. The learned counsel appearing for the revision petitioner contended that there was no assault or criminal force used by the revision petitioners to deter a public servant while discharging his official duty. Independent witnesses were not examined in the trial court to show that the revision petitioners had intentionally use the force to the public servant without that person's consent and damaged food samples as alleged. PW1 is inimical terms with petitioners and he foisted a false case due to this vengeance which was stated in his statement. In the absence of independent evidence petitioners are entitled to get the benefit of doubt. 5. The learned Public Prosecutor, strongly opposed the argument and contended that physical force is always not necessary to attract the offences alleged. Forcibly taking the Crl.R.P.No.3166 of 2004 3 sample will cause fear and annoyance to the pubic servant. Even though, direct physical contact with PW1 was not disclosed, the alleged threat and annoyance created an implied force towards the body of PW1 and prosecution proved its case. 6. Now, the questions that arise for consideration are whether there is any illegality or irregularity in the findings of the courts below? In this circumstance the conviction and sentence passed by the courts below under Sections 448, 353, 201 r/w 34 IPC are sustainable in law? The allegation was that revision petitioners committed house trespass by entering into the office of PW1 and damaged food samples kept in that office. House trespass is considered as the aggravated form of criminal trespass. When a person enters into or upon the property of another with intent to commit offence or to intimidate or insult or to annoy him the offence of criminal trespass is committed. But house trespass can be made in respect of a building, tent or vessel used as a human dwelling, or any place of worship or the place for the custody of property. The oral evidence of PW1 shows that on 26.07.1996 at 10.05 a.m. while he was working as Circle Food Inspector, Malappuram, the revision petitioners trespassed into his office while he was preparing samples taken, for sending Crl.R.P.No.3166 of 2004 4 to the Regional Analytical Laboratory, Kozhikode for examination, they demanded to hand over the samples to them. When he denied their request, the first revision petitioner (first accused) introduced himself as the President of Kerala Vyapari Vyavasayi Ekopana Samithi and took the samples from the table torn the sample packets seal and its outer cover. He also torn the remaining sample packets and took six sample packets and entrusted it to 2[nd] petitioner. They also intimidated that in future, if he visits the shop and take sample, he will face with dire consequences. After that he left the place and come back with a new person and handed over the sample packets to him. PW1 informed the matter to the police by giving Ext.P1 petition. The sample covers taken into custody were marked as MO1 series. The documents were marked in the trial court as Exts.P1 to P14. 7. PW2 supported PW1 and deposed that the first revision petitioner demanded the sample packet taken from Morayoor. When PW1 refused, 1[st] petitioner open the sealed packets of mustard and thereafter fenugreek. After that he left the place and came back with another man and took the sample packet of mustard. In cross-examination PW2 admitted that he informed the matter in the police station. Even though PW1 and PW2 5 Crl.R.P.No.3166 of 2004 deposed about the incident their evidence regarding occurrence is inconsistent. 8. PW3 did not support PW1 and PW2. PW4 and PW5 deposed that they attested Ext.P15. PW6 and PW7 were turned hostile. PW8 attested Ext.P16. PW9 prepared Ext.P2 mahazar and arrested the accused. PW10 verified the investigation of PW9 and laid charge. 9. In this context, I have examined prosecution has proved any offence as alleged. In order to attract offence u/s. 353 IPC, use of assault or criminal force against a public servant while in execution of his duty is necessary. Force is exercising of ones energy in another human being and it may be exercised directly or indirectly. Therefore, force contemplated under Sections 349 and 350 is, force against human being directly or indirectly. The evidence of PW1 shows that revision petitioners neither applied any physical force nor any gestures directly or indirectly towards him and no contact with any part of the human body of PW1 and he disclosed that no gestures shown from the side of the revision petitioners to affect the sense of feeling of a public servant. In order to attract 353 IPC, prosecution has to prove the use of assault or criminal force to deter a public servant while 6 Crl.R.P.No.3166 of 2004 discharging his duty. PW1 has no case that revision petitioners assaulted or used criminal force upon him. According to 351 IPC Assault is defined as: “Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation - Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.” Here such an allegation is not found in Ext.P1 or in his oral testimony. The essential ingredient of “assault or criminal force” is not found in the statement of PW1 and other witnesses. When such criminal force or assault is not applied no motion consequent to that act while discharging his duty, no offence under Section 353 will attract. 10. The learned counsel advanced an argument that when there is no bodily contact, offence under Section 186 IPC is to be registered against revision petitioners by filing a complaint in writing under Section 195 Cr.P.C. It is clear that offence under Section 186 IPC and 353 IPC are distinct offences. The offence under Section 353 IPC is a cognizable offence and offence under 7 Crl.R.P.No.3166 of 2004 Section 186 IPC is not and which is applicable when an accused voluntarily obstruct a public servant in discharge of his public functions as described under Chapter X. But under Section 353 IPC ingredient of assault or use of criminal force against a public servant while doing his duty is necessary. Therefore, the qualities of two offences are different and not applicable to the given sets of fact. 11. PW1 deposed that PWs 2 and 3 are peons in his office. His office is functioning in the Civil Station compound, near District Treasury. PW4 is a U.D. Clerk in the District Food Inspector Office. Immediately he reported the matter to the Police in the District Treasury and informed to the District Food Inspector, Palakkad, who was in charge of Malappuram District. In cross examination, he admitted that he has no direct knowledge about the revision petitioners, but a third party introduced them to him. He admitted that three persons trespassed into the room and he did not know about others. Some others were also entered into his room. There was no independent witnesses supporting the prosecution case. PWs 1 to 3 are official witnesses and their credibility depends upon the totality of the circumstances. It is the fundamental principle that Crl.R.P.No.3166 of 2004 8 proof beyond reasonable doubt should be the rule in all criminal cases. It is not necessary that it should be perfect, but when it is proved too perfectly, it is argued that it is artificial. Here PW1 is the Food Inspector and PWs.2 and 3 are peons in his office. No independent witnesses were cited by the prosecution to prove the alleged offence, since several Government Offices are working near the place of occurrence. The interested testimonies of PWs.1 to 3 are to be scrutinized in the above backdrops for finding the truth. As a rule of prudence the Court required to scrutinize it with more care. The Apex Court in Hari Obula Reddy v. State of ## A.P. [AIR 1981 SC 82] held thus: “interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting of rejecting sworn testimony. Nor is it an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary it is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable.” ## 12. Analysing the evidence of PWs.1 and 2 it is clear that 9 Crl.R.P.No.3166 of 2004 their evidence is not reliable that the revision petitioners had taken the samples and destroyed the labels, which caused obstruction to the official duties of PW1. The evidence of these two witnesses were not properly scanned by the trial court. The revision petitioners might have entered into the office of PW1 since it is a public office but whether they had committed the alleged offence is to be proved by independent evidence. The Circle Food Inspector's office functions in the civil station where several other public offices situate. In such circumstance independent evidence is necessary and such evidence is not found in this case except the evidence of the interested testimonies of PW1 and PW2 which cannot be relied up on even without corroboration. What is essential in such situation was that evidence of interested witness would be subjected to careful scrutiny by a court of law before it accepts. If on such scrutiny, such testimony is found to be naturally reliable that is sufficient in the circumstance of the case for a conviction. Their previous enmity was stated by the revision petitioners that PW1 and PW2 visited some shops and took samples, at that time few shop owners resisted that act ended in enmity. In such a situation more careful scrutiny is necessary and corroboration of independent Crl.R.P.No.3166 of 2004 10 evidence is necessary. Apex Court in Bir Singh v. State of Uttar Pradesh (AIR 1978 SC 59) held thus “Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the Court would be justified in drawing an adverse inference against the prosecution.” When enmity is alleged against interested official witness independent evidence is necessary to corroborate the interested testimony for such reliability. In this case all the eye witnesses were official witnesses, which suffers from various infirmities and could be relied upon only if properly corroborated. The disputed public office is in the civil station where several other public offices functions. In view of the special circumstance, prosecution has to examine more independent witnesses to prove the overt act. Besides this their senior officer was neither informed nor cited as a witness. This affect the credibility of the prosecution case. When there is no reliable independent evidence in support of the prosecution case, I am of the opinion that revision petitioners are entitled to get the benefit of doubt. Therefore the conviction and sentence passed by the courts below under Sections 448, 353, 201 r/w Section 34 IPC are liable to be set Crl.R.P.No.3166 of 2004 11 ## aside. In the result, this revision petition is allowed. The conviction and sentence under Sections 448, 353, 201 r/w Section 34 IPC against the revision petitioners are set aside and they are acquitted thereunder and set at liberty. P.D.RAJAN, JUDGE AV