IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 2880 of 2008() ------------------------------ CRA.219/2006 of SESSIONS COURT, KOLLAM CC.106/2004 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... PETITIONER(S): DEFACTO COMPLAINANT: ------------------------------------------------------------------ RAVEENDRAN PILLAI, S/O. KUNJAN KURUP, SARADAVILASAM, THALAVOOR VILLAGE, KUNNIKODE. BY ADV. SRI.PHILIP T.VARGHESE SMT.A.SREEKALA RESPONDENT(S): STATE AND ACCUSED: -------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SREERANGANATHAN PILLAI, SREEVILASAM, NEAR KALEEKAL JUNCTION, VADAKODU MURI, THALAVOOR VILLAGE. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2880 OF 2008 ------------------------------------------ Dated this the 21st day of October, 2008 O R D E R Petitioner is the defacto complainant. Revision is filed challenging the order of acquittal passed by the Sessions Judge, Kollam in Crl. Appeal 219 of 2006. That appeal was filed by the first accused who was convicted in C.C.106 of 2004 by Judicial First Class Magistrate-II, Punalur for the offence under section 447 and 427 of Indian Penal Code. Prosecution case was that in furtherance of their common object 28 accused formed themselves into an unlawful assembly with the common object of constructing a road after cutting the trees by trespassing into the northern portion of the property belonging to petitioner/defacto complainant in violation of the order passed by a competent Court and they formed themselves into unlawful assembly on the night of 3.8.2003 at about 9.30 p.m. and trespassed into the residential property of the petitioner, cut down valuable trees and constructed a road and caused damages of Rs.8,00,000/-. It was alleged that all the accused committed the offences under section 143, 147, 148, 188, 447 and 427 read with section 149 of Indian Penal Code. Police CRRP 2880/08 2 registered the case after recording Ext.P1 F.I. Statement of the petitioner and investigated the case and submitted a final report under section 173 of Cr.P.C., which was taken cognizance by the learned Magistrate. All the accused pleaded not guilty. Prosecution examined 7 witnesses and marked 9 exhibits. On the side of the defence, two witnesses were examined and Ext.D1 was marked. Learned Magistrate on the evidence acquitted all the accused except the first accused. First accused was also acquitted of the offence under section 143, 147, 148, 188 read with section 149 of IPC and convicted for the offence under section 427 and 447 of IPC. The second respondent challenged the conviction and sentence before Sessions Court, Kollam in Crl.Appeal 219 of 2006. Learned Sessions Judge on reappreciation of evidence allowed the appeal and acquitted second respondent also. Revision is filed challenging the order of acquittal passed by learned Sessions Judge. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that learned Sessions Judge was not justified in acquitting second respondent. It was argued that the evidence was not properly CRRP 2880/08 3 appreciated by the learned Sessions Judge and answers extracted by the learned Sessions Judge are not the relevant answers and evidence of PWs 3 and 4 establish that a group of persons including second respondent trespassed into the residential property of the petitioner and thereafter constructed a road after cutting down the trees and there is no reason to interfere with the conviction passed by learned Magistrate. It is therefore argued that the order of acquittal is to be set aside. 4. The prosecution case is that 28 persons formed themselves into an unlawful assembly with the common object of constructing a road after trespassing into the property of the petitioner, cutting down the trees standing therein and in furtherance of their common object they formed themselves into an unlawful assembly and trespassed into the property on the night at about 9.30 p.m. on 3.8.2003 and thereby committed the offence. The argument is that first accused was one of the members of the unlawful assembly and evidence establish that a group of people numbering more than five formed themselves into an unlawful assembly with the alleged common object and thereafter committed trespass and damages to the property and even in the absence of evidence on the individual overtact acts CRRP 2880/08 4 of second respondent should have been convicted. But learned Magistrate on the evidence acquitted second respondent of the offence under section 149 as well as all the other offences except under section 427 and 447 of Indian Penal Code. In such circumstances conviction of the second respondent could be confirmed by the learned Sessions Judge only on satisfying that there is evidence to prove the overtact committed by the second respondent constituting the offences as for which he was convicted. Learned Sessions Judge appreciated the evidence in the proper perspective and found that the road was constructed by the Panchayat and there is no evidence to prove any overtact by second respondent. The argument of the learned counsel is that evidence of PWs 3 and 4 establish that petitioner was also one among the group of people who committed the illegal acts. 5. True, even without establishing the overtact on the part of the second respondent, he could have been convicted with the aid of section 149 of IPC provided there is evidence to prove that he was also one of the members of the unlawful assembly, who committed the offences and the act was pursuant to the common object. But when the trial Court itself found that there is no evidence to prove an unlawful assembly and CRRP 2880/08 5 acquitted of the offence under section 149 of IPC, conviction of second respondent could only be for his individual acts. Apart from the general allegation that second respondent was also among the group of people who trespassed into the property, there is no evidence with regard to any individual overtact on the part of second respondent. Learned Sessions Judge also took note of the fact that in Ext.P1 F.I. Statement he has named some of the persons who committed offence, and at the time of evidence PW1 deposed that he could not recognize them. It is therefore found that evidence of PW1 as against the petitioner also cannot be relied on. When these facts are appreciated in the proper perspective, it cannot be said that appreciation of evidence by learned Sessions Judge was perverse. In any case the view taken by the learned Sessions Judge is a possible and reasonable view that could be taken on appreciation of evidence. In such circumstances there is no reason to interfere with the order of acquittal. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-