MURALIKRISHNAN AND OTHERS Vs. STATE

JUDGEMENT

(1.) The revision petitioners herein are the accused in C.C 236/1998 of the Judicial First Class Magistrate Court, Koothuparamba. They faced prosecution in the court below under Sections 143, 147, 448 and 427 read with 149 I.P.C, on the allegation that at about 9.30 p.m on 25.1.1998, they trespassed into the ration shop of one Valsan as part of a criminal design hatched by them, and they committed some acts of mischief there by destroying the furniture and other articles.

(2.) All the accused appeared before the learned Magistrate and pleaded not guilty when the substance of the accusation was read over and explained to them. The prosecution examined 8 witnesses in the trial court and proved Exts. P1 to P3 documents. All the accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., 1973 They did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found all the accused guilty. On conviction they were sentenced to undergo different terms of sentence. Aggrieved by the judgment of conviction dated 16.10.2001, the accused approached the Court of Session, Thalassery with Crl.A 590/2001. In appeal, the learned Addl.Sessions Judge (Adhoc-II) confirmed the conviction, but modified the sentence. Accordingly, the jail sentence was set aside and a sentence of fine was imposed under the different sections by judgment dated 26.10.2006. Now the accused are before this Court in revision challenging the legality and propriety of the conviction and sentence.

(3.) On a perusal of the entire materials, and on hearing both sides, I find that the conviction concurrently made by the courts below is liable to be set aside. Of the eight witnesses examined in the trial court, PW1 to PW3 are the material witnesses. PW7 and PW8 are the Police Officers who registered the crime and investigated the case. PW4 and 5 are only mahazar witnesses. PW6 has only a hear-say information. Ext.P1 is the complaint made by PW1 to the Police. This is a very short complaint which does not contain the necessary details of the alleged trespass and mischief. His case in the complaint is that he sustained a loss of 2000/- due to the alleged mischief ? committed by the accused. But in evidence, he stated that he had sustained a loss of Rs. 12000/-. He does not explain this difference, or how he sustained that much loss. His case in evidence is that he witnessed the incident at about 9.30 p.m while he was at his father's house. He has no such case in the complaint. The Ext.P1 complaint and also the examination of PW1-in-chief would show that he was in fact at his house at the time of the alleged incident. He stated in cross-examination that his house is 1.50 kms away from the scene of incident. In court, the witness could not clearly and specifically identify the accused as the persons who allegedly committed mischief at his shop. In a case like this, the material witnesses are expected to say who is who of the accused and also the overt-acts committed by each and every accused.