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2013 DIGILAW 813 (KER)

Ashok Kumar, S/o. Sivan Pillai v. State of Kerala

2013-09-11

V.K.MOHANAN

body2013
ORDER : V.K. Mohanan, J. The petitioner is the 9th accused in Crime No.222 of 2010 of Kurathikadu Police Station and according to him, accused Nos.1 to 4 and 7 in the very same crime faced prosecution in C.C.No.307 of 2010 and as per Annexure-B judgment they are acquitted with respect to certain offences and in Revision they are fully exonerated. So, according to the petitioner, extending the benefit of Annexures-B and D judgments he is also entitled to get an acquittal. Therefore, the present M.C. is filed under Section 482 of Cr.P.C. with a prayer to quash Annexure-A charge sheet and all further proceedings pending against the petitioner in C.C.No.425 of 2012 on the file of the Judicial First Class Magistrate Court-I, Mavelikkara. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The prosecution allegation is as follows:- The first accused was in inimical terms with PW.1 in connection with a civil dispute regarding a pathway. Due to the said animosity, the accused persons formed themselves into an unlawful assembly at about 10.35 p.m. on 03/06/2010 with a common object of causing loss to PW.1 and in prosecution of the said common object, they trespassed into the house of PW.1 named "Sreeraj Nivas" bearing Building No.1/480 of Thekkekara Panchayat in Umbernadu Muri and the 6th accused destroyed glass of 3 window-panes of the front window of the building by hitting with a stick. At the same time the other accused destroyed the glasses of 4 panes of the window fixed on the eastern wall of the northern bed room of the building. The first accused at the same time repeatedly kicked on the front door of the house and caused damage to the door. Thus the accused have caused a loss of Rs. 85,000/- to PW.1. So, prosecution allegation is that the accused 9 in numbers committed the offences punishable under Sections 143, 147, 148, 447, 448 & 427 read with Section 149 of I.P.C. 4. In the light of the submission made by the learned counsel for the petitioner I have perused Annexures-B and D judgments. In paragraph 16 of Annexure B judgment, the learned Magistrate has found that, during the examination, PW.1 completely deviated from Ext.P1 statement and made heavy improvement as to the overt act of each accused who allegedly destroyed the window glasses of the bed room. In paragraph 16 of Annexure B judgment, the learned Magistrate has found that, during the examination, PW.1 completely deviated from Ext.P1 statement and made heavy improvement as to the overt act of each accused who allegedly destroyed the window glasses of the bed room. It is also mentioned that the allegation in Ext.D1 plaint is that the first defendant, who is the first accused pounded the front door heavily and caused damage to it. It is further observed and found that PW.1 or PW.2 have no consistent case as to the exact incident took place in their house. It is also to be mentioned that all the lights on the outer side of the building and the electric fan fitted in the sit out were unaffected even after the alleged violent attack. The wooden frames of the windows also were not damaged at all. This aspect creates a genuine doubt as to the alleged mischief committed by the accused. Thus on analysing the evidence, the learned Magistrate is of the view that the prosecution could not prove beyond reasonable doubt that the damage seen to the window panes were caused by the accused who faced the trial. Thus it can be concluded that the offence under Section 427 of I.P.C. is not proved beyond doubt against accused Nos.1 to 4 or 7th accused. It is relevant to note that in paragraph 16, the learned Magistrate has found that PWs.1 and 2 were giving highly exaggerated versions about the incident allegedly taken place in their house. According to the witnesses, the damage to the front window glasses was caused by A2 to 4 and 6 along with additional accused No.10 and the damage to the window of the bedroom was caused by accused Nos.5, 7, 9/the present petitioner, additional accused No.11 and the wife of the first accused. The above version according to the learned Magistrate, significant to note since the above versions of PW's 1 and 2 were introduced, for the first time only during their examination before the court and there is no whisper in Ext.P1 statement. The above version according to the learned Magistrate, significant to note since the above versions of PW's 1 and 2 were introduced, for the first time only during their examination before the court and there is no whisper in Ext.P1 statement. Then the learned Magistrate finally concluded that, the prosecution has successfully established the offences punishable under Sections 143, 147 and 447 of I.P.C. against accused Nos.1 to 4 and 7, who faced the prosecution but they were acquitted for the offences punishable under Sections 148, 448 and 427 read with Section 149 of I.P.C. 5. In this juncture it is relevant to note that, as per Annexure-D judgment in Crl.R.P.No.939 of 2013 this Court found that, essential ingredients to attract Sections 441 and 447 is the entry with an intention to commit offence or to intimidate, insult or annoy. But those ingredients are absent in the case of the prosecution and therefore the prosecution failed to prove the offence punishable under Section 447 read with Section 149 of I.P.C. Consequent to the above finding, the accused, who faced the prosecution who had already secured an acquittal for the offences punishable under Sections 148, 448 and 427 read with Section 149 of I.P.C., but convicted for the offences punishable under Sections 143, 147 and 447 of I.P.C., are also acquitted for the said offences as well. 6. According to me, in the light of the above evidence and materials on record as appreciated by the learned Magistrate as per Annexure-B judgment, which re-appreciated and acquitted all the accused as per Annexure-D order, who faced prosecution with respect to all the offences charged against them, no purpose would be served even if the petitioner is directed to face the prosecution, since the substratum of the prosecution has gone. 7. In the result, this Crl.M.C. is disposed of quashing Annexure-A Charge Sheet in Crime No.222 of 2010 of Kurathikadu Police Station and all further proceedings pending against the petitioner in C.C.No.425 of 2012 on the file of the Judicial First Class Magistrate Court-I, Mavelikkara.