GANGADHARAN Vs. RAGHAVAN

JUDGEMENT

(1.) Crl.R.P.No.558 of 2011 is a revision brought against the conviction under Sections 448 and 427 in C.C.No.1149 of 2004 of the Judicial First Class Magistrate Court, Koyilandy. The trial court convicted the accused under Sections 448, 323 and 427 IPC. In appeal the learned Additional Sessions Judge, Adhoc-II, Kozhikode set aside the conviction under Section 323 IPC, but confirmed the conviction under Sections 448 and 427 IPC. The incident alleged in this case happened at the courtyard of a tile factory at Oorallur, within the limits of the Koyilandy Police Station. The revision is brought against the appellate judgment in Crl.Appeal No.933/2008. The revision petitioner (accused) is also the appellant in Crl.Appeal No.1195 of 2009. He is the complainant in a complaint case filed in the trial court as C.C.No.1129 of 2005 under Sections 323, 324, 326 and 452 read IPC with Section 34 IPC. The incident alleged in the said case happened at the house of the appellant. Admittedly, there is some dispute between the appellant and the owner of tile factory. The appellant's house is situated adjacent to the compound of the tile factory. Claiming right of way through the courtyard of the factory he had approached the Revenue Divisional Officer. Though initially his request was turned down by the Executive Magistrate, he subsequently obtained orders extending the way through the compound of the factory, to his house. Later dispute arose regarding enforcement of the said order. It appears that the incidents alleged in these two cases happened in connection with the said dispute.

(2.) In C.C.No.1149 of 2004, the defacto complainant is the Secretary of the society that runs the tile factory, and the main witnesses therein are the employees of the tile factory. In C.C.No.1149 of 2004, the prosecution case is that at about 5.30 p.m. on 11.06.2004, the accused therein (appellant herein) trespassed into the courtyard of the tile factory by destroying the compound wall separating his property, he committed some acts of mischief there by destroying the furniture items, flower pots, tiles etc., and when the Secretary and the employees obstructed him, the accused assaulted the Secretary, and inflicted simple injuries on his body. The appellant had got admitted in the hospital due to some injury sustained in the incident. His statement was also recorded by the police. When the police did not initiate prosecution on his statement, he filed a complaint before the Court as CMP No.2647/2004. The learned Magistrate forwarded the complaint for investigation under Section 156(3) Cr.P.C. After investigation, the police submitted final report referring the crime as mistake of fact. The police report is that the complainant brought such a complaint with the object of escaping from the prosecution initiated by the Secretary of the tile factory. The appellant filed objection to the final report, and contested the matter. On getting directions from the Court, the police conducted further investigation in the said crime registered as Crime No.357 of 2004. After thorough investigation, the police submitted a supplemental final report under Section 173(8) Cr.P.C., referring the crime as mistake of fact. When the complainant objected the supplemental final report the learned Magistrate proceeded for enquiry under Section 200 Cr.P.C. After necessary enquiry, or after recording the statements of the complainant and witnesses, the learned Magistrate took cognizance on the protest complaint filed on 17.09.2004 as CMP No.4807/2004, under Sections 323, 324, 326 and 452 IPC, and issued summons to the accused. The case was filed as C.C.No.1129/2005. This case proceeded as a complaint case, simultaneously with C.C.No.1149 of 2004.

(3.) C.C.No.1149 of 2004 and C.C.No.1129 of 2005 were tried simultaneously by the trial court in view of the allegations and counter allegations. Actually, the allegations in the two cases will not reveal that the two are case and counter. In C.C.No.1129 of 2005, the defence taken by the accused is that the complainant therein (appellant) sustained injuries in a fall, during a scuffle that ensued between the parties at the courtyard of the tile factory in connection with the right of way claimed by the appellant. However, a reading of the two complaints will show that one incident happened as retaliatory to the other incident. Anyway, the two cases proceeded simultaneously for trial before the trial court on the assumption that the two are case and counter, despite the fact that the complaints will show that one incident happened, according to the prosecution, at the courtyard of the tile factory, whereas the other incident happened at the house of the appellant. Anyway, the learned Magistrate tried the two cases simultaneously, and recorded evidence on both sides. On an appreciation of the evidence in C.C.No.1149 of 2004, the learned Magistrate found that the incident alleged by the prosecution is true, that the Secretary and the employees were assaulted by the appellant in connection with his claim of way through the courtyard of the tile factory. Accordingly, the accused (the appellant herein) was convicted under Sections 448, 427 and 323 IPC, by judgment dated 13.10.2008. Against the said judgment of conviction, the accused approached the Court of Session, Kozhikode with Crl.Appeal No.933 of 2008. In appeal the learned Additional Judge set aside the conviction under Section 323 IPC, but confirmed the conviction under Sections 448 and 427 IPC. In C.C.No.1129 of 2005 wherein the accused in C.C.No.1149 of 2004 is the complainant, the trial court found that the allegations therein are not true, or that the complainant brought a prosecution in protest against the final report submitted by the police in Crime No.357 of 2004 only to escape from the prosecution against him in C.C.No.1149 of 2004. Accordingly, the learned Magistrate acquitted the accused therein by judgment dated 13.10.2008. The two cases were simultaneously disposed of. Aggrieved by the judgment of acquittal in C.C.No.1129 of 2005, the complainant therein brought Crl.Appeal No.1195 of 2009 before this Court with the leave of this Court. The appeal and the revision were heard together, and are being disposed of by this common judgment.