IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.Rev.Pet.No. 51 of 2001() ---------------------------- CRA.15/1998 of ADDL. SESSIONS COURT, ALAPPUZHA CC.159/1993 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S)/ACCUSED NOS.1 TO 3 --------------------- 1. T.BIJI, D/O THANKAMMA, KURISINKAL, WARD NO.II, KADAKKARAPPALLY PANCHAYAT, CHERTHALA 2. SIDHARDHAN, S/O ACHUTHAN, KURISINKAL, WARD NO.II, KADAKKARAPPALLY, PANCHAYAT, CHERTHALA. 3. S.DEVARAJAN, S/O SIVARAMAN, KURISINKAL, WARD NO.II, KADAKKARAPPALLY PANCHAYAT, CHERTHALA. BY ADV. SRI.S.VIJAYAKUMAR SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/COMPLAINANT --------------- 1. ANTONY, S/O THOMAS, PLASSERIVELI, WARD NO.IV, KADAKKARAPPALLY PANCHAYAT, CHERTHALA 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, EKM ADV. SRI.DENIZEN KOMATH FOR R1 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.51/2001 -------------------- Dated this the 10th day of February, 2009 ORDER Accused 1 to 3 in C.C.No.159/93 on the files of the Judicial Magistrate of First Class-I, Cherthala, who were convicted and sentenced for the offences punishable under Sections 447 and 421 of the IPC are the petitioners in this Revision. Four other accused were prosecuted. But the evidence against them was found to be inadequate and therefore, they were acquitted. There is no appeal against the order of acquittal. The conviction and sentence of Accused 1 to 3 was affirmed by the lower appellate Court and hence the Revision by Accused 1 to 3. 2. The case of the complainant, the first respondent herein was that he has been conducting an establishment by name “George Thomas Coir Works” in Thanki Junction at Cherthala. Accused 1 to 3 are related to each other, the second accused being the husband of the first accused and the third accused Crl.R.P.51/2001 2 is the brother of the first accused. The complainant's father had been in possession of 16 cents of property in Survey No.49/14 of Kadakkarappalli Village and according to the complainant, he had been conducting the aforementioned establishment in the said property from 1961 onwards and the complainant has been conducting the same from 1971. On 13.10.1992, at about 8.00 a.m, all the accused together formed themselves into an unlawful assembly, and trespassed into the property and inflicted damage. There were altogether 50 persons, who could be identified by sight. The complainant tried to prevent the action of the accused. But the 7th accused together with accused Nos.5 and 6, pushed him out of the property. A complaint was later filed before the Circle Inspector of Police, Kuthiathode, and the Deputy Superintendent of Police, Cherthala. Later, the complainant found that a compound wall was being constructed in the northern and southern side of the property. The factory shed situated in the property was demolished by accused 1 to 4 and their henchmen. The complainant alleged that the accused had committed the offence under Sections Crl.R.P.51/2001 3 143, 147, 148, 447, 427, 506(i) and 149 IPC. 3. It has come out from the testimony of PWs1 to 6 and from the documentary evidence that there was a dispute as regards the right to possess the 16 cents of property in Survey No.49/14. There is also a dispute with regard to the title to the property between PW1 and A1, who asserted title to the property. PW2 deposed that he had witnessed the entire events on 13.10.1992, that he had seen all the accused come to the place of occurrence together with 50 other persons, that they had destroyed two coconut trees and they had proceeded to construct a compound wall. PW3, the daughter of the complainant had also spoken about the complainant’s possession and enjoyment of the property and according to her, she was an eye witness to the entire episode which took place on 13.10.1992. PW4 and two other witnesses were examined for the same purpose. The complainant referred to Ext.P2 document of title under which the complainant’s father had right over the Coir Factory. Reference was also made in this regard to the pendency of O.S.No.535/92. It turned out Crl.R.P.51/2001 4 that the Suit was instituted by the first accused against the complainant and others and the property in question having an extent of 16 cents along with the Coir Factory, is the plaint scheduled property in O.S.353/92 before the Munsiff Court, Cherthala. An injunction order came to be passed in favour of the complainant on 12.6.1992, as evidenced by Ext.D3. It seems that during the currency of the said order of injunction the aforementioned incident took place on 13.10.1992. The complainant proved that Ext.D3 order of injunction was vacated after hearing both sides, as per Ext.P6 order dated 19.11.1992 and the same came to be confirmed as per Ext.P7 order in C.M.A.10/93 of the Court of Subordinate Judge, Cherthala. The order passed in the C.M.A became final and as evidenced by Ext.P8, subsequent application filed by the defendant for a direction to the complainant to demolish the compound wall also came to be allowed. 4. The aforementioned materials on record, along with the testimony of PWs1 to 6 proved the presence of accused Nos.1 and 2 in the property along with several Crl.R.P.51/2001 5 others. They had spoken about the presence of police officials also. They have already been acquitted by the trial Court and there is no appeal against the order of acquittal. I have gone through the evidence in detail and I do not find any reason to hold that the Courts below acted illegally in accepting the versions of PWs1 to 6, as regards the incident which took place on 13.10.1992. A large number of persons had gathered in the property and a factory shed was demolished. A compound wall was constructed as well. All these happened during the pendency of O.S.No.535/92 before the Munsiff Court, Cherthala. No doubt an ad interim order of injunction, was passed in favour of A1. But it has to be noted that the parties, who have already approached the Civil Court, should not either demolish or put up any structure in the disputed property except as per the orders of the Court. There is ample evidence to show that A1 and A2 had committed mischief in the property in question on 13.10.1992. 5. They seem to have asserted a right which according to them, was a bonafide right over the Crl.R.P.51/2001 6 property in question. A1 claimed title to the property under the sale deed executed in the year 1992 itself. It is true that there was an order of injunction in her favour on 13.10.1992, but destruction of a structure cannot be justified with reference to the order of injunction which, it will have to be noted, came to be vacated later, on merits, after hearing both sides, when the Court found that the plaintiff has not been able to prove her possession over the property. Having anxiously considered the oral and documentary evidence, on record and having heard counsel on both sides, I am of the view that the conviction of A1 and A2 for the offences under Sections 447 and 427 of the IPC does not warrant any interference by this Court. 6. But I am constrained to take a different view as regards the conviction of A3. A3 was an employee of the Kerala State Electricity Board and he was working as Cashier in the Pattanakkad Office. It was his case that he had attended his office on the said date. This was proved by referring to Ext.D5 Attendance Register and the fact that he was present in the office was proved by Crl.R.P.51/2001 7 the evidence of DWs1 and 2, DW1 being the Assistant Executive Engineer, the head of the office where he was working on the date of occurrence. Ext.D5 is a photocopy of the attendance register for the month of October, 1992 and Ext.D6 is the photocopy of duplicates of some bills issued by A3 on the same date, evidencing normal discharge of duties by him. The Courts below did not reject the veracity of Exts.D5 and D6 or the testimony of DWs1 and 2, but went on to hold that the presence of A3 in the office on 13.10.1992 would only prove that A3 was not present in the scene of occurrence from 10.00 a.m to 5.00 p.m. If the evidence on record is believable and acceptable as regards the presence of A3 in his office and normal discharge of duties by him, it should have been treated as sufficient to hold that A3 was not present in the scene of occurrence. After all, even according to the complainant, there were altogether 50 persons, who had constituted themselves into an unlawful assembly in the property on 13.10.1992. On an anxious appreciation of the evidence of the case, I am satisfied that the conviction of the third Crl.R.P.51/2001 8 accused is unjustified and unwarranted. The case pleaded by him ought to have been accepted. 7. Learned counsel for the petitioners submitted that the substantive sentence imposed on A1 and A2 at any rate, warrants interference by this Court. It was contended that A1 had asserted a bonafide title to the property and there was an order of injunction. There was a genuine civil dispute between the parites. 8. I heard learned counsel for the complainant also in this regard. I am satisfied that a direction to pay a compensation would suffice, instead of a sentence of substantive imprisonment. 9. Accordingly, the Criminal Revision Petition is allowed in part. Conviction and sentence of A3 is set aside. Conviction of A1 and A2 for the offences punishable under Sections 447 and 427 of the IPC is upheld. But, in modification of the sentence imposed on them by the trial Court, they are directed to undergo simple imprisonment till the rising of the Court. They Crl.R.P.51/2001 9 are further directed to pay a compensation of Rs.10,000/- each under Section 357(3) of the Cr.P.C. The compensation amount shall be paid to the complainant, the first respondent, herein. The amount shall be deposited in Court by A1 and A2 within three months from today. They shall appear before the trial Court to undergo the sentence of imprisonment, on 23.3.2009. V.GIRI, Judge mrcs