Main Search Premium Members Advanced Search Disclaimer
Cites 41 docs - [View All]
Section 427 in The Indian Penal Code
Section 342 in The Indian Penal Code
Section 323 in The Indian Penal Code
Section 357 in The Indian Penal Code
Section 120B in The Indian Penal Code
Citedby 10 docs - [View All]
Revision vs By Advs.Sri.M.Sasindran on 16 August, 2004
Sainaba Vellaram Para (V) vs State Of Kerala
Saithum Beevi vs Salahudeen on 6 August, 2007
Saithum Beevi vs Salahudeen on 6 August, 2007
M.V.Latha vs The State Of Kerala

User Queries
Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Kerala High Court
U.Nalini Madhavan vs The State Of Kerala on 16 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3906 of 2009()


1. U.NALINI MADHAVAN,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. K.G.PREMSANKAR, S/O.GOVINDAN,

3. K.ABDUL GAFOOR,

4. P.JAYARAJ, S/O.SUNDARAN NAIR,

5. R.V.KUNHIRAMAN,

                For Petitioner  :SRI.BABU S. NAIR

                For Respondent  :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :16/09/2010

 O R D E R
                          V.K.MOHANAN, J.
                ---------------------------------------------
                Crl.R.P.Nos. 2924 & 3906 of 2009
                ---------------------------------------------
             Dated this the 16th day of September, 2010

                               O R D E R

The impugned judgment in both the revision petitions is one and the same, i.e., dated 13.7.2009 in Crl.A.No.47 of 2009 of the Court of District and Sessions Judge, Ernakulam which was filed challenging the judgment dated 31.12.2008 in C.C.No.513 of 1995 of the Court of the Chief Judicial Magistrate, Ernakulam. Though the prayers in these two Criminal Revision Petitions are different, as the same are arising out of the same judgment and the question of facts and law are identical, both the cases are heard together and being disposed of by this common order.

2. Crl.R.P.No.2924 of 2009 is preferred by accused Nos.2 and 3, who are appellant Nos. 2 and 3 in the appellate court. Crl.R.P.No.3906 of 2009 is preferred by one Nalini Madhavan who is the wife of the deceased de facto complainant (CW1) challenging the acquittal of accused Nos.1 and 7 and challenging the sentence imposed against accused Nos.2 and 3, since, according to her, the same is inadequate.

3. The present revision petitions are arising out of the above appellate court judgment, which arose out of judgment dated Crl.R.PNos 2924 & 3906 of 2009 :-2-:

31.12.2008 in C.C.No.513 of 1995 of the Chief Judicial Magistrate Court, Ernakulam. In the Chief Judicial Magistrate Court, Ernakulam, though altogether 12 accused have faced the trial for the offences punishable under Section 120B read with Sections 323,342,357,427,465 and 201 I.P.C. and Sections 323, 342,357,427,465 and 201 I.P.C. and accused Nos.4 to 6 and 8 to 12 were acquitted of all the charges levelled against them. Accused Nos.1,2,3 and 7 were also acquitted with respect to the offences under Sections 465 and 201 of I.P.C. Thus, the trial court has found that accused Nos.1,2,3 and 7 are guilty of the offences under Sections 120B, 323,342,357 and 427 I.P.C. On such conviction, accused Nos.1,2,3 and 7 were sentenced to undergo simple imprisonment for a period of one month for offence under Section 120B, three months simple imprisonment each for the offences under Sections 323, 342 and 357 of I.P.C., and six months for the offence under Section 427 I.P.C.. It was also ordered that the period of imprisonment should run concurrently. The trial court, after quantifying the damages, directed accused Nos.1,2,3 and 7 to pay a compensation of Rs.25,000/- each to the legal heirs of CW1 under Section 357(3) of the Cr.P.C., in default to undergo simple Crl.R.PNos 2924 & 3906 of 2009 :-3-:

imprisonment for a further period of one month.

4. It is the above conviction and sentence of accused Nos.1,2,3 and 7, challenged in Crl.A.No.47 of 2009 before the appellate court. No appeal is preferred against the acquittal of accused Nos.4 to 6 and 8 to 12 and also against the acquittal of accused Nos.1,2,3 and 7 for the offence under Sections 465 and 201 I.P.C. either by the prosecution agency or any of the charge witnesses or revision petitioner in Crl.R.P.No.3906 of 2009, wife of CW1.

5. Thus, while disposing the appeal preferred by the accused by the impugned judgment, the lower appellate court acquitted accused Nos.1 and 7 of all the charges for which they are found guilty by the trial court and partly allowed the appeal preferred by accused Nos.2 and 3, by setting aside their conviction and sentence under Sections 120B, 323 and 357 of I.P.C., but confirming their conviction under Sections 342 and 427 I.P.C. and in modification of the sentence ordered by the trial court, the lower appellate court directed them to suffer simple imprisonment till the rising of the court under Sections 342 and 427 of I.P.C. and each of them is ordered to pay Rs.25,000/- being the compensation under Section Crl.R.PNos 2924 & 3906 of 2009 :-4-:

357(3) of the Cr.P.C. and in default, they were directed to undergo simple imprisonment for a period of one month each. It was also ordered that on realisation of the amount, the same should be paid to the wife of CW1. Thus, in Crl.R.P.No.2924/2009, accused Nos.2 and 3 are challenging their conviction and sentence under Sections 342 and 427 I.P.C. and the order to pay compensation.

6. In this juncture, it is also relevant to note that against the conviction and sentence of accused Nos.2 and 3, though they have filed Crl.R.P.No.2924 of 2009, the prosecution agency has not chosen to file any appeal or revision against the acquittal recorded by the lower appellate court in favour of accused Nos.1 and 7 and also the acquittal of accused Nos.2 and 3 with respect to the offences under Sections 120B,323 and 357 of I.P.C. and also the said agency did not file any appeal or revision challenging the sentence imposed against accused Nos.2 and 3 on the ground of insufficiency. In fact, Crl.R.P.No. 3906 of 2009 is filed, challenging the acquittal of accused Nos.1 and 7 and the inadequacy of sentence imposed against accused Nos.2 and 3 by a private party viz., Nalini Madhavan, the wife of the de facto complainant, viz.,CW21. It is also pertinent to note that no appeal or revision is filed either by the Crl.R.PNos 2924 & 3906 of 2009 :-5-:

prosecution agency or the wife of the de facto complainant, against the complete and clear acquittal of accused Nos.4 to 6 and 8 to 12.

7. C.C.No.513 of 1995 was instituted in the Chief Judicial Magistrate Court, Ernakulam on the basis of the charge sheet filed by the Inspector of Special Police Establishment, C.B.I., Kochi-17 in R.C.No.22(S)/92 for the offences punishable under Section 120B read with Sections 323,342,357,427,465 and 201 of I.P.C. against the accused persons, 12 in numbers. The case of the C.B.I., the prosecution agency, is that one Maniyeri Madhavan, who is the de facto complainant, was the Editor, Printer and Publisher of the evening daily by name 'Sudhinam' published from Kannur and during the year 1987-88, CW1, published a news item in his daily against accused No.1 viz., Sri.Prem Shanker,IPS, who was the District Superintendent of Police, Kannur at that time and according to the prosecution, the said news item annoyed the Police Officials especially, the first accused and they were awaiting for an opportunity to take revenge against CW1 and thus, when a news item was published in the 'Sudhinam' daily on 2.2.88 that an adhivasi minor girl hails from Thirunelli in Wyanad District was raped by one Rajan in his house where the girl was working as maid Crl.R.PNos 2924 & 3906 of 2009 :-6-:

servant and on seeing the news item, the accused entered into a criminal conspiracy at Kannur some time in 1988 and agreed to do certain illegal act to voluntarily cause hurt and wrongful confinement of the said Maniyeri Madhavan and also to cause wrongful loss and damages to 'Sudhinam' office and Jyothi Printing Press of CW1 situated at Fort Road at Kannur. It is the specific allegation of the prosecution that pursuant to the said criminal conspiracy, the accused persons got prepared a complaint dated 5.2.1988, against CW1 in relation to the news item about an Adhivasi girl published in 'Sudhinam' evening daily on 2.2.88 and obtained the thumb impression of the illiterate girl and her illiterate parents on the complaint and the same was routed through the District Superintendent of Police, Wayanad, to the office of first accused at Kannur.

8. It is also alleged that in pursuance of the said criminal conspiracy and after filing the complaint in the office of the first accused, accused No.7 and certain other unidentifiable police personnel have arranged surveillance at the 'Sudhinam' Office Premises for collecting information about the movement of CW1 and timing of 'Sudhinam' office and 'Jyothy Printing Press'. The Crl.R.PNos 2924 & 3906 of 2009 :-7-:

allegation continues that on 12.2.1988, accused Nos.1,2,3 and 7 and certain other unidentifiable Policemen assembled in the office of the first accused and discussed the modus operandi for materialising the criminal design, which is prepared during their criminal conspiracy and accordingly, the prosecution has alleged that at about 8 p.m. on 12.2.1988, accused Nos.2,4,5,6,9 and two other unidentifiable policemen reached in the office of 'Sudhinam' in a police jeep bearing Reg.No.KEV 9076 driven by accused No.8 and accompanied by a Contessa Car No.KRO 7777 of first accused which was driven by accused No.7 and on reaching the spot, accused Nos.7 and 8 remained in their respective vehicles and accused Nos.2,4,5,6 and 9 and other unidentifiable police men entered into 'Sudhinam' compound and picked up CW1 by using criminal force, without giving valid reason for taking him into custody and according to the prosecution, those accused stated to CW1 that first accused wanted him and then pulled and pushed him into the police jeep referred above and forcibly made him to sit in the back seat of the jeep in between the Policemen. It is also the case of the prosecution that the jeep was driven to Kannur Town Police Station through a longer circuitous route covering 9 Kms., avoiding 2 Kms. Crl.R.PNos 2924 & 3906 of 2009 :-8-:

route and accused No.7 followed the jeep in the Contessa car of first accused.

9. It is also the case of the prosecution that on the way, accused Nos.2,4,5,6 and 9 voluntarily caused hurt to CW1. It is specifically alleged that the second accused repeatedly slapped on his left cheek and also punched on his right cheek. Against fourth accused, it is alleged that he punched on the abdomen of CW1 and hit with his elbow on his back forcibly keeping his head in between his knees and by pushing police lathy into his abdomen and accused Nos.5 and 6 forcibly suffocated him by closing his mouth and nose and the ninth accused hit on his head and side of abdomen. According to the prosecution, the jeep reached at the compound of Kannur Police Station at about 8.30 p.m. and thereafter, accused Nos.4 and 5 dragged CW1 out of the jeep and CW1 was confined in the Police lock up by accused Nos.2 and 3.

10. According to the prosecution, thereafter, accused Nos.1,2,3 and 7 entered into discussion and as a result of which Crime No.50 of 1988 against CW1 for the offences punishable under Section 228A I.P.C. and Section 7(1)(d) of the Protection of Civil Rights Act, 1955 (for short 'the PCR Act') was registered and the Crl.R.PNos 2924 & 3906 of 2009 :-9-:

FIR was prepared showing that the crime was registered at 2.30 p.m. on 12.2.1988 against CW1.

11. The further case of the prosecution is that though the offences involved in the said crime, which are registered against CW1, though only bailable offences and though sufficient sureties were offered after meeting accused Nos.2 and 3 at the Kannur Town Police Station, they denied bail to CW1. It is also alleged that on the same day night, one Muneer, a Reporter Trainee of 'Sudhinam' daily was also taken into custody in the Kannur Town Police Station.

12. The prosecution allegation further continues stating that between 9 p.m. and 11 p.m. on 12.2.1988, the accused Nos.2,3,4,5,6 and 9 and other unidentifiable policemen went to the Sudhinam Office and committed mischief by kicking and breaking open the door of the 'Sudhinam' Office and Jyothi Press and dismantled and damaged the printing machinery under the guise of search and the machinery were destructed by hitting and smashing with heavy object and got its parts removed and also took away the files of correspondence and cash etc. from the office. It is also the case that third accused prepared search list by forging signature of CW1 and other witnesses purporting that search and seizure were made Crl.R.PNos 2924 & 3906 of 2009 :-10-:

in the presence of CW1 and witnesses and thereafter the press was put under police control for two weeks as per the order of first accused.

13. According to the prosecution, CW1 and Sri.Muneer were produced before the residence of the Judicial First Class Magistrate, Kannur at about 4.30 a.m. on 13.2.1988 and the learned Magistrate released them on self bond.

14. Another allegation of the prosecution is that accused No.12, being the Head Constable of AR Camp, Kannur falsified the GD of A.R.Camp, Kannur dated 12.2.1988 by making false entries in the GD to show that on 12.2.1988 at 12.30 p.m., accused Nos.5 and 6 reported for duty and they were sent to Kannur Town Circle Inspector's Office at 2.45 p.m. According to the prosecution, accused No.12 forged page No.91 by adding the numbers 3046 and 3031 of accused Nos.5 and 6 to create a false claim that they had returned from Kannur Town Police Station at 7.40 p.m. on 2.12.1988 and also to show that they did not participate in the overt act as alleged, against CW1 and the mischief committed by them in the 'Sudhinam' office and Jyothi Press. It is also the case of the prosecution that accused Nos.10 and 11 forged certain documents, Crl.R.PNos 2924 & 3906 of 2009 :-11-:

the G.D.of A.R.Camp dated 12.2.1988 by removing page number 92 of the said diary and replacing a fresh page having the same number of another diary and made entries to make it appear that the altered page number of 92 was written in the normal course of business, with an intention to support false claim of accused Nos.5 and 6 and they were sent to Kannur Police Station to report before the C.I. of Kannur at 9 p.m. on 12.2.1988 and they were not available for committing the offences as alleged against them. According to the prosecution, accused Nos.10,11 and 12 made such falsification of G.D. and forged the document with an intention to screen accused Nos.5 and 6 from legal punishment.

15. It is also alleged that second accused caused to tamper the vehicle dairy of Police Jeep No.KEV 9076 dated 12.2.1988 and 13.2.1988 by making the driver of jeep Sri.Bhaskaran to alter the entries in the vehicle diary to show that the vehicle was not used in connection with Crime No.50/88 of the Kannur Town Police Station on 12.2.1988 and the altered entries on 12.2.1988 were got attested by the Driver Police Constable Sri.Bhaskaran, that was under the instruction of second accused. Thus, according to the prosecution, all the accused acted in pursuance of the criminal conspiracy Crl.R.PNos 2924 & 3906 of 2009 :-12-:

hatched against CW1 and therefore, all of them are guilty of the offences alleged by the C.B.I. in the charge laid by them.

16. The further allegation of the prosecution is that after release of CW1 at 4.30 a.m. on 13.2.1988, he went to the District Government Hospital, Kannur and got admitted there. Consequently, an intimation was sent to the Kannur Town Police Station pursuant to which the Head Constable attached to the said Police Station went to the hospital and recorded the statement of CW1, on the basis of which Crime No.52 of 1988 was registered in the Kannur Town Police station and since CW1 was not satisfied with the investigation, he approached the High Court and as per the orders of this Court in Crl.M.C.No.328 of 1988, the investigation was entrusted with the D.I.G.of Police, Northern Range of Kerala. Again, dissatisfied with the above order of this Court, the de facto complainant approached the Honourable Apex Court with Special Leave Petition(Crl) No.2755 of 1988. Accordingly, the Honourable Apex Court directed CW1 to file a fresh complaint before the D.I.G. of Central Range of Kerala, who in turn was directed to register a case on the basis of such fresh complaint of CW1. According to the prosecution, thus CW1 has filed a fresh complaint which was routed Crl.R.PNos 2924 & 3906 of 2009 :-13-:

to the Kannur Town Police Station through S.P., Idukki for registering a crime and in response, Cr.151/90 of Kannur Town Police Station was registered and investigated by a Special Team constituted by the D.I.G., Central Range of Kerala. According to the C.B.I., CW1 again approached the Honourable Supreme Court and the Apex Court has issued a direction, vide order dated 24.9.1992 in Crl.M.P.Nos. 3378/1991 and 4476/1991 in SLP No.2755/1988 to hand over the investigation of Crime No.151/1990 of Kannur Town Police Station to C.B.I. based upon which the Government of Kerala issued orders handing over the investigation in Crime No.151/1990 of the Kannur Town Police Station to C.B.I., pursuant to which, and on receiving the file from the Kerala Police, C.B.I. has registered RC No.22(S)/92 and after investigation and on obtaining sanction from the appropriate Government to prosecute first accused, who is an I.P.S. Officer, and also sanction for prosecution of accused Nos.2 to 12 who were working in the Kerala Police at that time, preferred the Report containing the above charge.

17. In pursuance of the process, when the accused appeared in the trial court, the particulars of the charge were read over and explained to the accused and they denied the charge and pleaded Crl.R.PNos 2924 & 3906 of 2009 :-14-:

not guilty consequent to which the trial was further proceeded and the prosecution adduced its evidence consisting of the oral evidence of PWs.1 to 46 and the documentary evidence such as Exts.P1 to P47. Besides the above, a shirt was produced, which was claimed to have identified and marked as MO1. During the examination of prosecution witnesses, Exts. D1 to D12 were got marked from the side of the defence. The incriminating circumstances and the evidence, which emerged out of the prosecution evidence were put to the accused and they denied the same.

18. The accused took a specific plea that the present case is registered to counterblast Crime No.50 of 1988 of Kannur Town Police Station and according to the defence, in pursuance of the registration of Crime No.50/1988, CW1 was arrested legally by the third accused and towards the investigation, the third accused himself conducted the search of 'Sudhinam' Office in accordance with the procedure recognised by law. According to the defence, on the arrest of CW1, he was produced before the jurisdictional Magistrate within 24 hours. According to the defence, aggrieved by the legal arrest, CW1 made false allegations against the Police including the first accused and the in-laws and relatives of the first Crl.R.PNos 2924 & 3906 of 2009 :-15-:

accused, who are inimical to first accused, supported CW1 to launch a false prosecution against the first accused and other accused. The defence has also taken a contention that connected with the same allegation and subject matter, CW1 and his henchmen filed different civil suits before the Munsiff's Court, Kannur and Sub Court at Thalassery for various reliefs against the accused and those suits were dismissed. From the side of the defence, DW1 was examined and in addition to Exts.D1 to D12, Exts.D13 to D16 were produced and marked.

19. On the basis of the evidence, materials and the rival pleadings, the trial court formulated ten points for its consideration. The trial court has observed that out of the 96 prosecution witnesses cited as charge witnesses, CW1 the de facto complainant had expired during the pendency of the case and he could not be examined by the prosecution. Thus, the trial court, finally, found that accused Nos.4 to 6 and 8 to 12 are not at all guilty and all of them were acquitted and accused Nos.1 to 3 and 7 were found guilty for the offences mentioned earlier and accordingly, they were convicted and sentenced.

20. I have carefully gone through the elaborate judgment of Crl.R.PNos 2924 & 3906 of 2009 :-16-:

the trial court. In paragraphs 2 and 3, the trial court has elaborately stated the prosecution case and the various legal and procedural development that occurred from the date of the alleged incident and as to how the Central Bureau of Investigation, the central agency undertook the investigation and filed the final report. In paragraphs 4 to 6, the trial court has elaborately stated the procedure adopted on the appearance of the accused and the various stages of the trial including the prosecution evidence, defence evidence and the points formulated for the determination of the trial court and the schedule of the witnesses examined. Paragraphs 7 to 69 are the memorandum of evidence of prosecution witnesses and each paragraph contains the oral evidence of each of the prosecution witnesses. Paragraphs 70 to 81 give the details of the defence taken by each of the accused. Paragraph 82 contains the evidence of DW1. Paragraphs 83 and 84 contain the discussion of evidence and witnesses in the light of the arguments advanced from both sides. In paragraphs 85 and 86, the trial court recited the versions of the defence.

21. Thus, starting from paragraph 87 onwards and through discussion contained therein, the trial court arrived at its Crl.R.PNos 2924 & 3906 of 2009 :-17-:

conclusion regarding the controversial issues. Accordingly, the trial court has found that the raped victim girl, namely, Manja and her father, who have given Ext.P11 series of consent letters on 3.2.1988, are unlikely to make Ext.P12 complaint on 5.2.1988. The trial court has held that the argument of the counsel for first accused that Ext.P11 series might have been obtained sensing police action, is unsustainable since Crime No.50 of 1988 was registered and Ext.P41 FIR was prepared on 12.2.1988. Thus, according to the court, there was no chance for sensing police action for obtaining Ext.P11 series by the Correspondent of Mathrubhumi Daily. Further, in paragraph 88, the trial court has concluded that the contention of the defence that the prosecution has avoided the marking of Sudhinam daily purposefully, cannot be sustained. In order to come into such a conclusion, the trial court has held that the daily dated 2.2.1988 was not available in the Sudhinam Office and the Press whereas the available copy was already taken into custody by third accused at the time of search. The trial court also came to a conclusion that it is for the accused to produce the Sudhinam daily dated 2.2.1988 and mark it so as to justify the action taken by them on the basis of the offensive Crl.R.PNos 2924 & 3906 of 2009 :-18-:

publication made by CW1. So, according to the trial court, the non- production of Sudhinam daily dated 2.2.1988 by the prosecution has no effect and the burden to produce the daily is shifted to the defence. Through the discussion in paragraph 89, the trial court has concluded that at no stretch of imagination, a publication similar to Ext.P10(a) in Sudhinam Daily dated 2.2.1988 is liable to attract Section 7(1)(d) of the P.C.R.Act. It is also the opinion of the trial court that Ext.P12 complaint was manipulated by supplying the materials and colours to make the publication a 'grave crime'. Thus, according to the trial court, it cannot be believed that Manja or her parents, who were illiterate, had instructed for Ext.P12 and thus, according to the learned Magistrate, some literate persons pulled string behind the curtain and illiterate tribals were puppets in their hands. In paragraph 90, the trial court discussed the consequence of non-examination of the signatories in Ext.P12. On the basis of the evidence of PW.46 and Ext.P47, the trial court has held that the parents of the victim girl viz., Manja were no more and it is further held that though CW47, the raped victim girl was cited as a witness, her attendance could not be procured in spite of the process issued from the court and the process to the said witness Crl.R.PNos 2924 & 3906 of 2009 :-19-:

has to be served by the Police of the State. The said discussion is continued in paragraph 91 of the judgment and finally, held that the prosecution cannot be found fault with for non-examination of CW47, the raped vicitm, who is the living signatory to Ext.P12. Further, in paragraph 92, the trial court has concluded that the raped victim girl and her parents cannot be stated as the authors of Ext.P12 complaint and Ext.P12 has been manipulated so as to make the offensive publication a 'grave crime'. Thus, it is concluded that Ext.P12 is not a genuine complaint made by the signatories therein. Through the discussion that contained in paragraphs 93 and 94, the trial court, relying on Ext.D7 Circular, has held that only sexual offence can be considered as grave crime and the offence under Section 228A I.P.C. will not come within the purview of sexual offence and it is only an offence against public justice. Thus, it is the specific finding of the learned Magistrate that the concerned Police Officers used Ext.D7 as a weapon to wreck vengeance against CW1.

22. One of the considerations of the trial court is whether the arrest of CW1 and search of Sudhinam Office and Press was done with bona fides. After discussion, as revealed from paragraph 95 , Crl.R.PNos 2924 & 3906 of 2009 :-20-:

the trial court has held that the evidence of Pws.1,3,6 and 32 would show that the arrest was made by second accused in uniform and with the help of the Policemen in mufti. The learned Magistrate has held that the contention of the defence that the arrest of CW1 was made by the third accused, is incorrect. It is also stated that the above conclusion, especially in the light of he evidence of Pws.1,3,6 and 32, is supported by Ext.P40 report. In paragraph 97, the learned Magistrate has held that Crime No.50 of 1988 was registered and Ext.P41 FIR was prepared, after consultation and discussion with the first accused and his subordinate at the Office of the District Superintendent of Police. Finally, towards the end of paragraph 98, after the discussion of various evidence and materials, the trial court has found that CW1 was arrested from the Sudhinam compound by the second accused and his police party, on 12.2.1988 at 8 p.m. and not at 6 p.m. and not by the third accused, as claimed by the defence.

23. The next question considered by the trial court is whether the arrest of CW1 was done in a legal manner. As per the discussion contained in paragraph 99, the trial court has concluded that second and third accused were not willing to comply with the Crl.R.PNos 2924 & 3906 of 2009 :-21-:

provisions of Section 50(2) of the Cr.P.C. After referring certain materials and evidence and the discussions contained in paragraph 101, as evident from paragraph 102, the trial court has concluded that from the facts stated therein, it was made clear that the materials in Ext.P40 remand report have been manipulated in such a way to show that everything had been done in a normal and legal manner. But, according to the learned Magistrate, the circumstances would tell that there was ulterior motive of getting CW1 remanded to judicial custody.

24. The next point considered by the learned Magistrate is whether the search and seizure made in connection with Crime No.50 of 1988 is justifiable. After referring to the evidence of both the prosecution as well as the defence and the materials on record and the rival pleadings which are contained in paragraphs 103 to 110, the trial court found that the Police had made use of Ext.P12 to create a war like situation in Sudhinam Office and compound and the said action of the Police has no proportion to the gravity of the offence involved in Crime No.50/1988 and thus, according to the learned Magistrate, the search and seizure made by the accused are unjustifiable.

Crl.R.PNos 2924 & 3906 of 2009 :-22-:

25. The custodial assault and injury of CW1 is the most important aspect of the alleged incident and the next point taken for consideration by the trial court is with respect to those allegations. Paragraphs 111 to 117 contain the discussion and reference of materials and evidence. The trial court has found that evidence of Pws.15 and 16 and materials contained in Exts.P7 and P9 would support the oral evidence of other witnesses and there was injury on the upper lip and bodily pain to CW1 due to custodial assault by second accused and his police party in the police jeep. In paragraph 113, the trial court has concluded that especially in the light of evidence of Pws.1,3 and 9, CW1 has been manhandled while he was in police custody.

26. Another question considered by the trial court is whether the custody of CW1 at Kannur Town Police Station from 20.30 hours to 4.30 hours during the night of 12/13.2.1988 was legal and justifiable. On the basis of the evidence and materials referred to in paragraph 118 of the judgment, the trial court has held that the custody of CW1 at Kannur Town Police Station during the time 20.30 hours to 4.30 hours in the night of 12/13.2.1988 is to be treated as wrongful confinement.

Crl.R.PNos 2924 & 3906 of 2009 :-23-:

27. In paragraphs 119 and 120, the attempt of the trial court is to find whether accused Nos.2 and 3 caused mischief to the printing press of CW1 under the guise of search in the Sudhinam Office and Press. On the basis of the discussion and materials and evidence referred above in paragraph 120, the learned Magistrate held that accused Nos.2 and 3 caused mischief to the printing press of CW1 under the guise of search in connection with Crime No.50 of 1988 and due to the damage caused to the machinery, CW1 spent a sum of Rs.12,500/- and CW1 could not make publication of Sudhinam Daily from 13.2.1988 to 15.3.1988. Thus, the trial court concluded that CW1 suffered wrongful loss.

28. The next, but most important question considered by the trial court is whether the story of criminal conspiracy is true and reliable. After having a detailed discussion and referring to the materials and evidence, as seen in paragraphs 121 to 126, and after considering the arguments of the prosecution as well as the defence, the trial court has specifically found, as evidenced from paragraph 127, that there was a common agreement among accused Nos.1,2,3 and 7 for arresting CW1, assaulting him in Police custody, keeping him in the lockup of the Police station, denying Crl.R.PNos 2924 & 3906 of 2009 :-24-:

permission to the friends and relatives of CW1 to meet him at the Police Station, denying bail to him in a bailable offence, for causing damage to his office and press under the guise of search, for illegally removing the vital part of printing machinery under the guise of seizure, and for putting the Sudhinam Office and Press under heavy police control for weeks etc.

29. In paragraphs 128 and 129, the discussion and finding is with respect to the allegation against accused Nos.10,11 and 12 that they forged the G.D. of A.R.Camp, Kannur dated 12.2.1988 to destroy the evidence regarding the involvement of accused Nos.5 and 6. In paragraph 129, it is observed that from the evidence of PW24, it was clear that there was falsification of GD dated 12.2.1988 (Ext.P15(a)). But there is no sufficient evidence to show that accused Nos.10,11 and 12 had committed the falsification of the records and the G.D.

30. The next consideration of the learned Magistrate is with respect to the alleged involvement of accused Nos.5 and 6 in the above case. After the discussion of evidence and materials as seen in paragraphs 130 and 131, in paragraph 132, the trial court has concluded that there is no legal and acceptable evidence to prove Crl.R.PNos 2924 & 3906 of 2009 :-25-:

the involvement of accused Nos.5 and 6. So, the question of destroying evidence against accused Nos.5 and 6 by accused Nos.10,11 and 12 has no relevance.

31. The next charge considered by the trial court is with respect to the charge against second accused that he forged the vehicle diary dated 12.2.1988 and 13.2.1988 of Police Jeep No. KEV 9076. In paragraph 133, the trial court concluded that the evidence of PW25 could not be relied upon to prove the charge of forgery against second accused. Thereafter, as per the discussion and after referring to the materials and evidence as seen in paragraphs 134 to 136, the trial court has found that there is no sufficient evidence to prove the charge against accused Nos.4 to 6 and 8 to 12 and no sufficient evidence to prove the charge for the offence under Sections 465 and 201 of I.P.C. against any of the accused.

32. After the finding in favour of accused Nos.4 to 6 and 8 to 12, the next consideration of the trial court was whether the prosecution has proved the charge for the offence under Sections 120B, 323,342,357 and 427 of I.P.C. against accused Nos.1,2,3 and

7.

33. Thus, after referring to the evidence and materials on Crl.R.PNos 2924 & 3906 of 2009 :-26-:

record and various authorities and examination of the rival arguments as contained in paragraphs 138 to 145, the trial court has held in paragraph 146 that the prosecution has succeeded in proving the common agreement between accused Nos.1,2,3 and 7 and the motive in taking CW1 into Police custody. Thus, it was held that the offence under Section 120B I.P.C. stood proved against accused Nos.1,2,3 and 7.

34. Thereafter, in the light of the discussions and the evidence and materials referred to in paragraphs 147 and 148, the trial court has held that the arrest of CW1 made by second accused is unjustifiable and illegal and the same was carried out so as to satisfy the earlier criminal conspiracy entered into between accused Nos.1,2,3 and 7 and therefore, second accused is guilty of the offence under Section 357 of I.P.C. and thus, the trial court concluded that as the second accused has assaulted and used criminal force against CW1 in pursuance of the conspiracy, accused Nos.1,3 and 7 are guilty of offence under Section 120B read with Section 357 I.P.C.

35. As per the discussion contained in paragraph 149 of the judgment, the trial court has found that second and third accused Crl.R.PNos 2924 & 3906 of 2009 :-27-:

detained CW1 in lockup without releasing him on bail when there were sufficient sureties for taking him on bail and the very detention was illegal. Therefore, the trial court held that accused Nos.2 and 3 are guilty of offence under Section 342 of I.P.C. and as the detention was in pursuance of a criminal conspiracy, accused Nos.1 and 7 are also guilty of offence under Section 120B read with Section 342 of I.P.C.

36. On the basis of the discussion and the evidence and materials referred in paragraphs 150 and 151 of the judgment, the trial court has held that the prosecution has proved that while CW1 was in custody of second accused, he sustained injury and hence the court is bound to draw a presumption that the injury was caused to CW1 by second accused and therefore, second accused is guilty of offence under Section 323 of I.P.C. Thus, it was further held that second accused had voluntarily caused injury while CW1 was in police custody in pursuance of criminal conspiracy entered into between accused Nos.1,2,3 and 7 and hence, accused Nos.1,3 and 7 are guilty of offence under Section 120B read with Section 323 I.P.C.

37. Another prosecution charge considered by the trial court Crl.R.PNos 2924 & 3906 of 2009 :-28-:

is that whether the accused damaged the machinery of Sudhinam Press and removed the vital part of the machinery with the ulterior motive of stopping publication of Sudhinam Daily. As evidenced from the discussion contained in paragraphs 152 and 153 of the trial court judgment, and on the basis of the evidence and materials and the authorities referred therein, the trial court has found that the prosecution has proved that third accused caused wrongful loss to CW1 with the assistance of second accused and therefore, third accused was guilty of the offence under Section 427 of I.P.C. It was also held that the mischief was committed in pursuance of the criminal conspiracy entered into between the accused and therefore, accused Nos.1,2 and 7 are also guilty for the offence under Section 120B read with Section 427 I.P.C.

38. The defence arguments from different angles are referred by the trial court in paragraph 154 of the judgment and all those arguments were rejected.

39. The arguments regarding the correctness and legality of the sanction as per Exts.P19 and P20 are considered by the trial court as per the discussion and the authorities contained in paragraphs 155,156 and 157 of the trial court judgment. But, it is Crl.R.PNos 2924 & 3906 of 2009 :-29-:

concluded that all such arguments will not sustain and accordingly, found that Exts.P19 and P20 sanction orders are proper and legal.

40. As per the findings in paragraph 158 of the trial court judgment, the learned Magistrate rejected the arguments advanced by the defence on the basis of the errors that crept when the accused were questioned under Section 313 of Cr.P.C.

41. As per the discussions and findings contained in paragraph159, the learned Magistrate has also held that the accused are not entitled to get protection in terms of Sections 76 and 79 of I.P.C. and Section 14A of the P.C.R.Act.

42. As per the discussion and finding, as evidenced by paragraph 160, the learned Magistrate held that the statement given by accused Nos.1,2,3 and 7 under Section 313 of Cr.P.C. has nothing to do with the prosecution case and accordingly, those statements were ignored.

43. Thus, in paragraph 161 of the judgment, the trial court has found that the prosecution proved the charge for the offence under Sections 120B read with Sections 323,342,357 and 427 of I.P.C, against accused Nos.1,2,3 and 7 and they were accordingly convicted for the said offences. It is further found that accused Crl.R.PNos 2924 & 3906 of 2009 :-30-:

Nos.1,2,3, and 7 are not guilty of offence under Sections 465 and 201 I.P.C. The trial court further found that accused Nos.4 to 6 and 8 to 12 are not guilty of the offences under Sections 120B, 323,342,357,427,465 and 201 I.P.C. On the basis of the above findings, the trial court acquitted accused Nos.4 to 6 and 8 to 12 of all the charges levelled against them and accused Nos.1 to 3 and 7 were also acquitted for the offence under Section 465 of 201 of I.P.C. On the conviction of accused Nos.1 to 3 and 7 for the offences under Sections 120B,323, 342,357 and 427 I.P.C., the trial court imposed the earlier mentioned sentence against the above accused.

44. As stated earlier, challenging the conviction and sentence imposed against accused Nos.1 to 3 and 7 by the trial court, those accused preferred Crl.A.No.47 of 2009 before the District and Sessions Court, Ernakulam and by judgment dated 13.7.2009, the above appeal was disposed of acquitting accused Nos.1 and 7 of all the charges for which the trial court found them guilty and sentenced. But, in the case of accused Nos. 2 and 3, they were acquitted of the offence under Sections 120B,323 and 357 of I.P.C. and the finding of the trial court and the conviction against them Crl.R.PNos 2924 & 3906 of 2009 :-31-:

under Sections 342 and 427 of I.P.C. are confirmed. While confirming the conviction of accused Nos.2 and 3 under Sections 342 and 427 of I.P.C., the sentence of imprisonment ordered by the trial court is modified and reduced to till the rising of the court and each of them was directed to pay a sum of Rs.25,000/- as compensation and the default sentence is fixed as one month simple imprisonment.

45. The learned Sessions Judge, after having considered the entire prosecution case as well as the plea of defence and after referring the evidence and materials on record, as evidenced from the narration contained in paragraphs 1 to 13, formulated the point to be considered, which is conspicuous in paragraph 14, which reads "whether the prosecution has proved the conspiracy angle u/S.120B of I.P.C. and whether Ext.P12 complaint was the handy work of the 1st appellant and others as alleged." Towards the end of paragraph 15 of the appellate court judgment, the learned Sessions Judge has held that Ext.P12 was not given voluntarily by Manja and her parents as contended by the appellants before it, but they have been forced to act to the tune of somebody else without knowing its contents.

Crl.R.PNos 2924 & 3906 of 2009 :-32-:

46. Consequent to the above finding, the next question posed by the appellate court is who was behind that, whether the Police officials under the leadership of the first appellant or any other voluntary organisation or any other agency nurturing enmity against CW1 or not. Thus, after an elaborate discussion of various aspects, the lower appellate court opined that CW1 was prepared to go to any extent and accordingly, held that the prosecution has failed in proving that Ext.P12 complaint was prepared at the behest of the first appellant and others.

47. After the above finding, the next consideration of the appellate court was whether the arrest of CW1 was illegal, he was tortured and mischief was committed in the Sudhinam Office and Jyothi Press as alleged, if so who are responsible for that. After a thorough examination of the materials and evidence on record, and appreciating the same, the appellate court has held that the prosecution has thoroughly failed in proving the involvement of accused Nos.1 and 7 as the conspirators either to do an illegal act or a legal act in an illegal manner.

48. Thereafter, the question considered by the appellate court is whether CW1 was tortured by wrongfully confining him as has Crl.R.PNos 2924 & 3906 of 2009 :-33-:

been found out by the trial court. After referring to the evidence and materials on record and various legal provisions and authorities, in paragraph 33, the learned Sessions Judge has held that the evidence discussed therein shows that no such torture was meted out to CW1. It is also held by the appellate court that what CW1 had transpired was utter falsehood and any one of the overt act alleged by the prosecution was landed on the body of CW1 that would have left its own symptoms and it was quite possible to sustain such an aberration in numerous ways while travelling in a jeep and for that, violence need not be exercised by the Police. Thus, the final conclusion of the appellate court, as evidenced by the finding in paragraph 35 of the judgment is that the evidence adduced before the court does not point to the theory of torture against the body of CW1 as alleged. Thereafter, the appellate court has considered the question as to whether CW1 was wrongfully confined, resorting an arbitrary arrest and committed mischief to the Sudhinam Office and Jyothi Printing Press. According to the appellate court, the arrest of CW1, on drawing the FIR comes perfectly within their duty, especially when Section 228A is a cognizable offence. But, it was specifically found by the appellate Crl.R.PNos 2924 & 3906 of 2009 :-34-:

court that CW1 was under wrongful confinement in the Police Station for few hours for which second and third appellants were responsible.

49. Regarding the offence of mischief, the appellate court has concurred with the findings of the trial court in toto. The lower appellate court has also held that appellants 2 and 3 had break opened the Sudhinam Press and Jyothi Printers and dismantled the printing machine and decamped with the parts of the machine and they have posted police pickets and thus, according to the learned Sessions Judge, CW1 had sustained injuries and thus, the learned Sessions Judge had concurred with the findings of the trial court that the appellants 2 and 3 have committed the offence under Section 427 of I.P.C. The appellate court thus finally concluded that the prosecution has not proved the offence of conspiracy alleged against accused Nos.1 to 3 and 7 and accordingly, their conviction is set aside. In the light of the findings against accused Nos.1 to 3 and 7, their conviction under Sections 342 and 427 is confirmed and their conviction under Sections 120B,323 and 357 of I.P.C. are set aside and the sentence imposed against accused Nos.2 and 3 were modified to the extent indicated earlier and accordingly, they are Crl.R.PNos 2924 & 3906 of 2009 :-35-:

sentenced to undergo simple imprisonment till rising of the court and also sentenced to pay fine of Rs.25,000/- each towards the compensation under Section 357(3) of the Cr.P.C. and in default, each of them is directed to undergo simple imprisonment for a period of one month each.

50. It is, against the above conviction and sentence, accused Nos.2 and 3 preferred Crl.R.P.No.2924 of 2009. During the pendency of Crl.R.P.No.2924 of 2009, one of the revision petitioners viz., third accused- Sri.P.Jayaraj, who is the fourth respondent in Crl.R.P.No.3906 of 2009 expired. This Court in the decision in Viswanathan v. State of Kerala (2006(3) KLT 539), relying on the decision of the Apex Court reported in State of Kerala v. Narayani Amma Kamala Devi [1962 KLT III (SC) = AIR 1962 SC 1530], has held that nowhere in the provision, it is stated that a revision petition can be or cannot be made in respect of an order of conviction when convicted person is dead and it is further held that in a proper case, High Court can exercise the power even after the death of the accused and therefore, even after the death of the accused who is the revision petitioner, the revision petition would survive and court can pass appropriate orders with regard to the Crl.R.PNos 2924 & 3906 of 2009 :-36-:

sentence of fine. In the light of the above decision, the Criminal Revision Petition with respect to third accused though he is no more, would survive.

51. Sri.Babu.S.Nair, learned counsel appearing for the petitioner in Crl.R.P.No.3906 of 2009 emphatically challenged the very correctness, legality and propriety of the judgment of the appellate court by which accused Nos.1 and 7 are acquitted of all the charges and the acquittal of accused Nos.2 and 3 with respect to the offence under Section 120B,323 and 357 of I.P.C. and the inadequate sentence imposed against accused Nos.2 and 3 though they were found guilty under Sections 342 and 427 of I.P.C. After placing the facts and circumstances which led to the registration of the criminal case and two judgments of the courts below, the learned counsel took me through the evidence of the prosecution witnesses and the materials on record and also pointed out the unsustainable stand of the defence and their failure in facing the prosecution allegations.

52. The learned counsel emphatically submitted that as rightly held by the trial court, the prosecution had succeeded in establishing the charge for the offences under Sections 323,342, Crl.R.PNos 2924 & 3906 of 2009 :-37-:

and 357 I.P.C. against the accused with ample evidence, especially, the oral testimony of Pws.1,2,6 and 32. Learned counsel submitted that the evidence of those witnesses established that CW1 was taken into the police jeep and the vehicle was taken to Police Station and further, Pws.1,2 and 9 had seen CW1 when he was removed from the Police jeep. According to those witnesses, CW1 was tired and his dhoti was loose and he was supporting it with his hands. The learned counsel further submitted that these witnesses have categorically stated that blood is seen clotted on his upper lip. According to the learned counsel, CW1, on seeing Pws.1 and 3, told that the Policemen were beating him all the way and he was about to die. The learned counsel submitted that PW44, the jurisdictional Magistrate has deposed that he had noted blood stain on the shirt of CW1. Learned counsel further submitted that CW1 gave a statement before PW44 through which CW1 implicated first accused as the mastermind behind the entire episode. Learned counsel submitted that the injury sustained by CW1 during his police custody is proved by the contemporary documentary evidence i.e., Ext.P7 wound certificate which is proved through PW15. Thus, according to the learned counsel, the offences under Crl.R.PNos 2924 & 3906 of 2009 :-38-:

Section 323,342 and 357 are proved. It is also the submission of the learned counsel that the accused have also admitted the arrest of CW1 and therefore, it is for them to explain as to how CW1 sustained injuries noted by PW15 in Ext.P7 as well as PW44, the learned Magistrate. But, the defence has miserably failed to give any proper and convincing explanation, for the injury sustained by CW1. It is also the submission of the learned counsel that in pursuance of the conspiracy, the printing press was dismantled by the accused and the Sudhinam Office was also destroyed by them and therefore, Section 427 of I.P.C. is attracted. Such an offence was proved through the evidence of Pws.1,2,7 to 13,18,32,33 and

35. The learned counsel submitted that the evidence of PW22 shows that the machinery established in the printing press which was destructed by the accused has been repaired by PW22 and towards that, CW1 has spent money. Learned counsel also, on the strength of Exts.P31 and P32 Commission Reports proved through PW34, submitted that the mischief done by the accused in the printing press and office of Sudhinam is proved by adducing legal evidence and evidence of the witnesses mentioned above are further corroborated by the evidence of Pws.22 and 34.

Crl.R.PNos 2924 & 3906 of 2009 :-39-:

53. The learned counsel emphatically submitted that the first accused, who was working as the District Superintendent of Police, at the relevant time, is the man behind the entire attrocities and in the present case, though generally it was impossible to collect direct evidence regarding the conspiracy, the prosecution had collected evidence regarding the role played by the first accused in the conspiracy and the same was accepted by the trial court. According to the learned counsel, the appellate court, without proper appreciation of the evidence collected and produced before the court of law, simply discarded those evidence and recorded the acquittal in favour of the first accused. In order to substantiate the allegation of conspiracy against the first accused, the learned counsel invited my attention to the evidence of PW1, who said that, when he contacted the second accused, he was told by the second accused that the first accused wanted to see CW1. It is also the submission of the learned counsel that when Pws.7 to 12, 18 and 33 went to the Police Station to meet CW1 and to take him on bail, they were told by the Police that there was direction from first accused that CW1 shall not be permitted to be seen by anybody. According to the learned counsel, though all these witnesses went Crl.R.PNos 2924 & 3906 of 2009 :-40-:

to the Office of the District Superintendent of Police and met first accused, first accused got irritated and told them that he was not interested in hearing anything about CW1 and he would not permit CW1 to publish the 'Sudhinam' evening daily. It is also the contention of the learned counsel that the Contessa Car bearing Regn.No.7777 which belongs to first accused was found along with police jeep, when CW1 was taken into custody. So, according to the learned counsel, the very presence of the car belonged to the first accused near the police jeep when CW1 was taken, indicates the role of the first accused in the conspiracy. Another evidence relied on by the learned counsel to prove the conspiracy against the first accused is that of evidence of PW13, who is the landlord of the building of which in the ground floor, the Sudhinam Office and Printing Press were housed. Learned counsel pointed out that PW13 had deposed that first accused offered his assistance to get the key for getting back the possession of the building.

54. Besides the above evidence, the learned counsel very much placed reliance upon the deposition of PW41 who was working as Dy.S.P. at that time. The learned counsel submitted that according to PW41, all the accused were found in the office of the Crl.R.PNos 2924 & 3906 of 2009 :-41-:

first accused in between 11 a.m. and 11.30 p.m. on the date of the occurrence and according to PW41, first accused asked PW41 to join with them to materialise the wicked play. Learned counsel pointed out that as per the deposition of PW.41, accused Nos.2,3 and 7 were seen in the office of the first accused and they also came in the said office during the night also. It is also the submission of the learned counsel that Section 10 of the Evidence Act is squarely applicable in the present case and the learned Sessions Judge miserably failed to apply the principles contained in Section 10 in the case of first accused and the appellate court miserably failed to convict the first accused for the offence under Section 120B and the connected offences, and hence, according to the learned counsel, the order of acquittal recorded by the lower appellate court acquitting accused Nos.1 and 7 are liable to be set aside.

55. It is the further submission of the learned counsel that the appellate court had taken the matter in a very lighter manner when there was an elaborate and laborious process of trial of examining as many as 46 witnesses and marking as many as 47 documents, which evidence are though sufficient to prove the guilt of the accused. According to the learned counsel, the first accused, who is Crl.R.PNos 2924 & 3906 of 2009 :-42-:

a responsible Police Officer of higher rank in the State Police Department, is involved in this case and he has a prominent role in the commission of offence and he shall be deterrently punished. It is also the contention of the learned counsel that the appellate court, on irrelevant consideration, acquitted the prime accused and other accused were given only light punishment.

56. It is the submission of the learned counsel that the appellate court had not entered into any serious discussion regarding the illegal arrest, illegal detention, torture and the destruction of the press and office of daily and the appellate court has not considered the reliability of the prosecution evidence. According to the learned counsel, the lower appellate court, without seriously considering the role of the first accused in the allegation of conspiracy and on flimsy and untenable grounds, acquitted accused Nos.1 and 4. According to the learned counsel, the attendant circumstances of each case has a vital role in establishing the conspiracy. According to him, in the present case, the grudge nursed by the first accused towards CW1 due to the derogatory reports against him appeared in the Sudhinam daily and the subsequent events designed by the first accused with the support of Crl.R.PNos 2924 & 3906 of 2009 :-43-:

subordinate officers are proved with cogent evidence and the same are sufficient to prove the offence of conspiracy. Learned counsel submitted that the very manipulation of the complaint at the behest of a tribal girl and her parents is a sufficient fact to establish the conspiracy alleged in this case. According to the learned counsel, as the conspiracy against the accused is proved, all the accused are liable to be punished even though the overt act is not separately established. The learned counsel submitted that the entire background of the crime and the highhandedness shown subsequently by the Police, for the manipulation of Ext.P12 complaint and subsequent manipulation of other documents are the very relevant facts, which are miserably failed to be considered by the learned Sessions Judge. It is also the submission of the learned counsel that even though accused Nos.2 and 3 were found guilty, in the matter of sentence, a very soft approach was taken by the learned Sessions Judge, for which there is no justification. Thus, according to the learned counsel, the order of acquittal recorded in favour of the accused is liable to be set aside and adequate and appropriate sentence has to be imposed against them. In support of the arguments advanced by the learned counsel, he placed Crl.R.PNos 2924 & 3906 of 2009 :-44-:

reliance upon the following decisions reported in Nazir Khan v. State of Delhi (AIR 2003 SC 4427), Shivanarayan Laxminarayan Joshi and others v. State of Maharashtra (AIR 1980 SC 439), Yogesh v. State of Maharashtra [2008(3) KLT SN 90 (C.No.110) (SC)], Firozuddin Basheeruddin v. State of Kerala [2001(3) KLT 189(SC)] and Murukeshan v. State of Kerala and Others (2010 (2) KHC 621).

57. Sri.C.K.Sreedharan, learned counsel appearing for the second accused/the first revision petitioner in Crl.R.P.No.2924 of 2009, who is also appearing for the first accused/the second respondent in Crl.R.P.No.3906 of 2009, submitted that even though, according to the prosecution, accused Nos.2 to 6,9 and two unidentifiable persons took CW1 into custody, no appeal is filed by the prosecution agency or the petitioner in Crl.R.P.No.3906 of 2009 against the acquittal of those accused. Neither the State nor any private party has filed any appeal against the acquittal of accused Nos.1 and 7 as well. Thus, according to the learned counsel, the jurisdiction of this Court to interfere with an order of acquittal at the instance of a private party, in exercising the revisional jurisdiction, is very limited and unless there is any manifest error or Crl.R.PNos 2924 & 3906 of 2009 :-45-:

miscarriage of justice or any violation of fundamental law, this Court will not be justified even in entertaining such revision petition and in the present case, petitioner in Cr.R.P.No.3906 of 2009 miserably failed to make out any of the above ground to interfere with the order of acquittal recorded by the lower appellate court and therefore, the above revision petition is liable to be dismissed. It is also the submission of the learned counsel that there is no scope for re-appreciation of evidence at the instance of a private party while exercising the revisional jurisdiction of this Court.

58. The learned counsel for the revision petitioner emphatically submitted that the appellate court ought to have found that the prosecution has suppressed material facts and the case put forward is most improbable. Learned counsel further submitted that Ext.P12 complaint was received by PW19 and forwarded to first accused, who in turn forwarded to second accused for registering the case. According to the learned counsel, both the appellate court as well as the trial court miserably failed to consider the above aspect and thus, it can be seen that what the first accused has done on getting Ext.P12 complaint was only an official act.

59. It is also the submission of the learned counsel that the Crl.R.PNos 2924 & 3906 of 2009 :-46-:

appellate court has disbelieved the prosecution case regarding the conspiracy against accused Nos.1 to 3 and 7 and accordingly, all the above accused were acquitted for the offence under Section 120B of I.P.C., which is sufficient to show that the prosecution has falsely implicated an innocent person by invoking Section 120B of the I.P.C. It is also the contention of the learned counsel that CW47, a signatory to Ext.P12 complaint, was not examined without assigning any reason and therefore, the lower appellate court has correctly drawn adverse inference against the prosecution case regarding the conspiracy.

60. The learned counsel vociferously submitted that the prosecution has deliberately suppressed material evidence and no explanation is forthcoming for such a suppression. Learned counsel pointed out that there is already an F.I.Statement of CW1 connected with Crime No.52/1988 of the Kannur Town Police Station recorded by the Head Constable attached to that Police Station on receiving Ext.P6 intimation from the Kannur District Hospital sent by PW15. But, that FI statement is not produced. Learned counsel submitted that PW46, the investigating officer admitted that he had seized the CD file in Crime No.52/1988 including the FI statement therein. It Crl.R.PNos 2924 & 3906 of 2009 :-47-:

is also the contention of the learned counsel that the investigating officer in the present case failed to question the investigating officer in Crime No.52 of 1988 who filed a refer report in that case. According to the learned counsel, the second complaint preferred by CW1 as a result of an afterthought.

61. It is the further contention of the learned counsel that the second accused at the relevant time was the Sub Inspector of Police, Town Police Station and he was duty bound to register crime on receipt of complaint received from the office of the Superintendent of Police, Kannur and to investigate the case. According to the counsel, the offence complained of under Section 228A of I.P.C., is a cognizable offence and second accused has simply registered Crime No.50 of 1988 of Kannur Police Station and the investigation was undertaken by the third accused and it was the third accused, who arrested CW1 and produced CW1 as well as Muneer before the Judicial First Class Magistrate, Kannur as per Ext.P40 remand report.

62. According to the learned counsel, the finding of the appellate court that CW1 was arrested at about 8 p.m. on 12.2.1988 is against the contents in Ext.P40 remand report relied on by the Crl.R.PNos 2924 & 3906 of 2009 :-48-:

prosecution. According to the learned counsel, the finding of the appellate court that CW1 was wrongfully confined for few hours and second accused is responsible for the same is factually and legally incorrect. It is also the submission of the learned counsel that the search in the Sudhinam Office and Jyothi Printing Press was conducted in a proper and legal manner by the third accused and the alleged mischief committed to the machinery is only a cooked up story created by CW1, to foist a false case against the police officials.

63. Learned counsel further submitted that the theory of prosecution cannot be believed for various reasons. In the present case, CW47 Manja, one of the signatories of Ext.P12 is not examined. The trial court was carried away with the evasive explanation given by the prosecution agency. Learned counsel submitted that the evidence of PW41,PWs.1,3 and 13 are not reliable evidence. He had invited my attention to the deposition of PW41, the Dy.S.P. and by relying on Ext.D16 report dated 19.3.1988, it is submitted that PW41 himself held that the allegation of assault is false. Ext.D16 is a report prepared by PW41 in pursuance of an enquiry conducted by him as directed by PW21 Crl.R.PNos 2924 & 3906 of 2009 :-49-:

D.I.G. Learned counsel further submitted that the said PW41 was examined as PW3 in O.S.No.235 of 1995 while he was working as Dy.S.P. and Ext.D12 is his deposition in which he said, he had conducted no enquiry. So, according to the learned counsel, the evidence of PW41 is unbelievable and unreliable. Learned counsel further submitted that PW13 is a close relative of wife of CW1 who was residing in the same compound. According to the learned counsel, PW13 failed to identify first accused in the box. Thus, according to the learned counsel, the version of PW13 that he was summoned to the office of first accused and the first accused had talked to PW13 cannot be believed. So, the learned counsel submitted that absolutely, there is no cogent and reliable evidence to prove the allegation of conspiracy.

64. The learned counsel further submitted that Pws.6 and 32 did not identify second accused. Learned counsel also submitted that Pws.7 to 12 and Pws.18 to 33 are examined to prove that they met accused Nos.2 and 3 to release CW1. Learned counsel submitted that except PW7, no others are claimed to have seen CW1. The learned counsel took me through Ext.D2 deposition of PW8 in O.S.No.235 of 1990 wherein PW8 has stated that he had not Crl.R.PNos 2924 & 3906 of 2009 :-50-:

seen first accused. Learned counsel also invited my attention to the deposition of PW10, who failed to identify first accused. PW11 also stated that he did not contact and meet first accused. Ext.D4 deposition of PW12 in the suit also renders the evidence of PW10 as doubtful.

65. The learned counsel submitted that the only independent witness to prove the alleged assault against CW1 is the witness one Mr.Muneer who was allegedly take along with CW1 into custody. But the prosecution did not examine the said Muneer. The learned counsel invited my attention to the deposition of PW44, the jurisdictional Magistrate and according to PW44, he had not seen any injury on CW1.

66. It is also the submission of the learned counsel that regarding the alleged arrest of CW1, the findings of the court below are against the real facts and circumstances. According to the learned counsel, as per Ext.P40 remand report, the arrest was made by the third accused at 6.30 p.m. and search and investigation were also conducted by the third accused. It is further submitted by the learned counsel that Ext.P42 search memo was sent by the third accused and Ext.P3 series of search lists were also prepared by the Crl.R.PNos 2924 & 3906 of 2009 :-51-:

third accused.

67. Learned counsel further pointed out that Ext.P8 wound certificate is with respect to the Muneer, which I mentioned earlier and that wound certificate was issued by PW15 Doctor. Muneer is a very material witness to prove the allegation of custodial torture and the alleged manhandling after the alleged arrest of CW1. Thus, according to the learned counsel, no explanation is forthcoming from the side of the prosecution for not examining the said Muneer.

68. I have heard Sri.K.Gopalakrishna Kurup, learned counsel appearing for the fifth respondent in Crl.R.P.No.3906 of 2009 who is the seventh accused. The learned counsel emphatically submitted that according to the nature of the allegations and the sections of offences involved, it is only a summons case and therefore, to understand the charge against the revision petitioner, we have to go by the particulars contained in the police report and thus, according to the learned counsel, as per the Police Charge, the allegation against the seventh accused is that the seventh accused and few unidentifiable persons went to Mananthavadi and wrote a complaint typed at the instance of seventh accused and got it signed and obtained thumb impression therein and filed before PW19, the Crl.R.PNos 2924 & 3906 of 2009 :-52-:

S.P.of Police, Wayanad District and thus got it routed to first accused. The further allegation is that seventh accused, three or four times prior to the arrest of CW1, watched the movement and whereabouts of CW1 and the seventh accused was found in the Contessa car belonged to first accused at the time of the arrest and removal of CW1 from the compound of the Sudhinam Office and Press. According to the learned counsel, though these are allegations against seventh accused, absolutely there is no convincing and acceptable evidence and the prosecution has miserably failed to establish the said allegation including that of conspiracy against seventh accused.

69. Learned counsel vehemently submitted that though the CBI has produced document No.1 series, which are the copies of Sudhinam evening daily, which contained the news or articles against the Police Officers, allegedly appeared on various dates and none of them got marked and produced during the trial and thus, the prosecution has miserably failed to prove the motive alleged against the accused including seventh accused. It is also the case of the learned counsel that till the filing of the new complaint, there was no mention about the Contessa Car near or about the place of Crl.R.PNos 2924 & 3906 of 2009 :-53-:

the arrest of CW1. Learned counsel submitted that seventh accused took charge as the Sub Inspector of Police, Mattannur Police Station, just one or two weeks prior to the alleged date of incident and there was no possibility for the prosecution witnesses to get acquaintance with seventh accused. Thus, according to the learned counsel, the evidence of PW1 that he had seen seventh accused sitting in the Contessa car at 8 p.m. on the date of the incident cannot be believed since PW1 has no much acquaintance with seventh accused so as to identify him during the night. After taking me through the depositions of Pws.3 and 6, learned counsel submitted that those witnesses have no case that they have seen and identified seventh accused near or about the place of arrest of CW1. According to the learned counsel, PW3 failed to identify seventh accused. PW6 only says a doubt that he had seen the car only and not mentioned anything about seventh accused. Learned counsel submitted that the only remaining piece of evidence, which is pressed into service by the prosecution, is that of the evidence of PW41, who says that he had seen the seventh accused in the office of the first accused at 11.30 p.m. Learned counsel submitted that seventh accused being the Sub Inspector of Police, Mattannur Crl.R.PNos 2924 & 3906 of 2009 :-54-:

Police Station, which is coming within the superintendence of first accused, there is nothing unusual and on the basis of such fact, no inference can be drawn that he was conspiring with first accused. Thus, according to the learned counsel, there is no evidence to connect seventh accused with the alleged conspiracy and other offences and therefore, the order of acquittal recorded by the lower appellate court is absolutely correct and legal and no interference is called for.

70. Relying upon the decision of the Apex Court reported in K.Chinnaswamy Reddy v. State of A.P. and another (AIR 1962 SC 1788), the learned counsel submitted about the limitation of this Court to interfere with the order of acquittal while exercising the revisional jurisdiction. Thus, the learned counsel also supported the arguments advanced by Sri.C.K.Sreedharan, learned counsel who is appearing for the revision petitioners in the other revision petition which is preferred by the other accused and the third respondent in the present revision petition.

71. I have also heard Sri.M.V.S.Namboothiri, learned Standing Counsel appearing for the C.B.I. Though no revision petition or appeal is preferred by the C.B.I. against the acquittal of Crl.R.PNos 2924 & 3906 of 2009 :-55-:

the accused in the above case or challenging the sufficiency of the sentences imposed against the convicted accused, the learned counsel supported the order of conviction recorded by the trial court as well as the lower appellate court and raised plea against the order of acquittal, recorded by the appellate court and supported the arguments advanced by Sri.Babu.S.Nair, learned counsel appearing for the revision petitioner in Crl.R.P.No.3906 of 2009.

72. I have carefully considered the arguments advanced by Sri.Babu.S.Nair, learned counsel appearing for the revision petitioner in Crl.R.P.No.3906 of 2009. Sri.C.K.Sreedharan, learned counsel appearing for respondents 2 to 4 in Crl.R.P.No.3906 of 2009 and the revision petitioners in Crl.R.P.No.2924 of 2009, Sri.K.Gopalakrishna Kurup, learned counsel appearing for the fifth respondent in Crl.R.P.No.3906 of 2009 and Sri.M.V.S.Nampoothi, learned Standing Counsel appearing for the C.B.I., who is the first respondent in both the revision petitions. I have also examined the judgments of the trial court as well as the lower appellate court and carefully gone through the deposition of witnesses and other documents and materials. Besides the above, I have also gone Crl.R.PNos 2924 & 3906 of 2009 :-56-:

through the authorities cited by the counsel during the hearing of the above revision petitions.

73. Before going into the details and merits of the case, I am of the view that it is not out of place to mention certain particular facts and circumstances involved in the case at the outset.

74. As per the prosecution allegation, the alleged incident had taken place on 12.2.1988 connected with the arrest of CW1 viz., Maniyeri Madhavan, i.e., 22 years back. The said Maniyeri Madhavan, CW1 is no more and he expired before the commencement of the trial. When Ext.P43 FIR was registered on the basis of the complaint of the deceased Maniyeri Madhavan, there were 13 accused and during the investigation, according to PW46, he came to the conclusion that original accused Nos.7 and 9 to 13 were having no role in the offence and they were deleted from the party array and further PW46 filed a report to include accused Nos.7, 9 to 13 and thus he proceeded with the investigation and laid the final report. No complaint is raised from any corner against deleting original accused Nos.7 and 9 to 13. The trial court, by its judgment, found that accused Nos.4 to 6 and 8 to 12 are not at all involved in the case and accordingly, they were acquitted of all the Crl.R.PNos 2924 & 3906 of 2009 :-57-:

charges levelled against them. The trial court has also found that accused Nos.1 to 3 and 7 have not committed the offences punishable under Section 465 and 201 of I.P.C. and they were acquitted of those offences. Against the above acquittal recorded by the trial court, neither the prosecution agency nor any private person/witnesses filed any appeal or revision. On appeal, at the instance of the convictee, the appellate court acquitted accused Nos.1 and 7 of all the charges levelled against them. Apart from the above, the appellate court has also set aside the conviction of accused Nos.2 and 3 for the offences under Sections 120B,323 and 357 of I.P.C. Against the above acquittal recorded by the appellate court also, no appeal or revision is preferred by the prosecution agency. It is also relevant to note that third accused who is the fourth respondent in Crl.R.P.No.3906 of 2009 and the second revision petitioner in Crl.R.P.No.2924 of 2009, is no more.

75. According to me, it is just and proper to repeat the prosecution allegation against the accused in a nutshell for a proper disposal of these revision petitions. Thus, the prosecution case is that the deceased Maniyeri Madhavan was the Editor, Printer and Publisher of the evening daily by name, Sudhinam published from Crl.R.PNos 2924 & 3906 of 2009 :-58-:

Kannur and during the year 1987-88, he published news items against Police Officials, especially against first accused, who was at that time the District Superintendent of Police, Kannur and such publication of derogatory or annoying news items against the police officials particularly against first accused annoyed him and thus, he was waiting for an opportunity to take revenge against the Editor, Printer and Publisher of the daily in which such news items were published. According to the prosecution, the much awaited opportunity came in handy when a news item is published in the Sudhinam News daily dated 2.2.1988. The news appeared therein is to the effect that the Adhivasi minor girl hails from Thirunelli in Wayanad District was raped by one Rajan in his house where the said girl was working as a maid servant. According to the prosecution, on seeing the said news items, sometimes in February 1988, the accused entered into a criminal conspiracy at Kannur and agreed to do certain illegal act to voluntarily cause hurt and wrongful confinement of CW1 and to cause wrongful loss and damage to Sudhinam Office and Jyothi Printing Press of CW1 situated at Fort Road, Kannur. As per the prosecution allegation, in pursuance of the said criminal conspiracy, the accused persons got Crl.R.PNos 2924 & 3906 of 2009 :-59-:

a complaint dated 5.2.1988,i.e., Ext.P12 prepared against CW1 connected with the news items about Adivasi girl published in Sudhinam daily on 2.2.1988 and obtained the thumb impression of the illiterate girl and her illiterate parents on Ext.P12 and managed to route the same through the District Superintendent of Police, Wayanad to the Office of the first accused at Kannur. According to the prosecution, thereafter, seventh accused and few unidentifiable persons were keeping watch at the Sudhinam premises for collecting information about the movements of CW1 and timings at Sudhinam Office and Jyothi Printing Press. Further, the particular allegation is that then on 12.2.1988, accused Nos.1 to 3 and 7 and certain unidentifiable Policemen assembled in the office of the first accused and had a discussion to carry out the already designed criminal act conspired by them against CW1 and in pursuance of the criminal conspiracy, on that day, i.e., on 12.2.1988, at about 8 p.m. accused Nos.2,4,5,6 and 9 and two other unidentifiable police men reached at Fort Road, Kannur near the Office of the Sudhinam in their police jeep bearing Registration No.KEV 9076 driven by eighth accused and accompanied by a contessa car with Regn. No.KRO 7777 of the first accused which was driven by the seventh accused Crl.R.PNos 2924 & 3906 of 2009 :-60-:

and after reaching there, accused Nos.7 and 8 remained in their respective vehicles and accused Nos.2,4 to 6 and 9 and other unidentifiable Policemen entered into the Sudhinam compound and picked up CW1 by using criminal force without any valid reason for taking him into custody and the jeep was driven to Kannur Town Police Station through a longer circuitous route covering 9 Kms and seventh accused followed the jeep in the contessa car of the first accused. It is the further allegation that on the way, accused Nos.2,4 to 6 and 9 voluntarily caused hurt to CW1. According to the prosecution, their jeep carrying CW1 reached at the compound of the Kannur Town Police Station at about 8.30 p.m. and then accused Nos.4 and 5 dragged CW1 out of the jeep and accused Nos.2 and 3 confined CW1 in the Police lock up. The further allegation of the prosecution is that thereafter, accused Nos.1 to 3 and 7 discussed and registered Crime No.50 of 1988 against CW1 under Section 228A of I.P.C. and Section 7(1)(d) of the P.C.R.Act and prepared FIR showing that the crime was registered at 2.30 p.m. on 12.2.1988 against CW1 and CW1 was not granted bail even though offences were bailable and sufficient sureties met accused Nos.2 to 3 in the above Police Station and the first accused at the Crl.R.PNos 2924 & 3906 of 2009 :-61-:

S.P.Office. The further allegation of the prosecution is that between 9 p.m. and 11 p.m. on 12.2.1988, accused Nos.2 to 6 and 9 and other unidentifiable police men went to the Sudhinam Office and committed damage to the Sudhinam Office and the Jyothi Printing Press and dismantled and damaged the printing machinery under the guise of search and made the machinery disfunctional by hitting and smashing with heavy object and got its parts removed and also took away the files of correspondence and cash etc. from the office. According to the prosecution, subsequently, CW1 and Sri.Muneer were produced before the Judicial First Class Magistrate Court, Kannur in his residence at about 4.30 a.m. on 13.2.1988 and accordingly, they were released on self bond. There is also some allegation regarding the falsification of GD of AR Camp, Kannur. There is also allegation to the effect that second accused caused to tamper the vehicle diary of the Police Jeep KEV 9076 dated 12.2.1988 and 13.2.1988 by making driver of the jeep to alter the entries in the vehicle diary to show that the vehicle was not used in connection with Crime No.50/88 of Kannur Town Police Station on 12.2.1988. Thus, all the accused acted in pursuance of the criminal conspiracy hatched against CW1. So the accused are guilty of Crl.R.PNos 2924 & 3906 of 2009 :-62-:

offence punishable under Section 120B read with Sections 323,342,357,427,465 and 201 I.P.C. and Sections 323,342,357,427,465 and 201 I.P.C.

76. Going by the above allegation of the prosecution agency, it can be seen that the specific case against the accused is that CW1 through his Sudhinam daily published adverse or derogatory news against first accused and other Police Officials in Kannur, which motivated the first accused and others to enter into a criminal conspiracy and accordingly, they entered into an illegal agreement and under the guise of the investigation of that crime and in pursuance of such illegal agreement, CW1 was illegally arrested and subject to custodial torture and illegally confined him in the police lockup, false crime,i.e, Crime No.50 of 1988 was registered for the offence under Section 228A of I.P.C. and Section 7(1)(d) of the P.C.R.Act, and under the guise of the investigation of that crime, caused damage to the Sudhinam Office and Printing Press under the guise of search and seizure and caused wrongful loss to CW1. But, according to the accused, while denying the entire prosecution allegation, they have admitted the arrest of CW1 and the specific plea of the defence is to the effect that the arrest was legal since the Crl.R.PNos 2924 & 3906 of 2009 :-63-:

same was done in pursuance of the registration of crime and during the investigation of such crime (Crime No.50 of 1988) and they have produced CW1 before the jurisdictional Magistrate within 24 hours and the further case of the defence is that the present case and allegations are raised due to extraneous consideration and with the oblique motive. It is true that after the consideration of the evidence and the materials and the rival pleadings, the trial court pronounced its judgment finding guilty of accused Nos.1 to 3 and 7 and acquitting accused Nos.4 to 6 and 8 to 12. But, after re- appreciating the said evidence and materials, the appellate court acquitted accused Nos.1,2,3 and 7 of the main charges, but convicted accused Nos.2 and 3 only for the offences under Sections 342 and 427 of I.P.C.

77. Sri.Babu.S.Nair, learned counsel for the revision petitioner, while assailing the findings of the appellate court and the consequent acquittal of accused Nos.1 to 3 and 7 and challenging the order of sentence against accused Nos.2 and 3 on the ground of inadequacy, he had emphatically submitted that to prove the offence of conspiracy against the accused, in exception to general prosecution case of conspiracy, here there is direct Crl.R.PNos 2924 & 3906 of 2009 :-64-:

evidence, especially that of PW41 and learned counsel submitted that PW41 was working as Dy.S.P. at the time of the alleged incident and he had witnessed the meeting of accused Nos.1 to 3 and 7 in the office of first accused and the evidence of Pws.1 and 8 to 12,18 and 33 are sufficiently enough to establish the allegation of conspiracy against the accused. Against the finding of the appellate court, regarding the evidence of PW41, i.e., he is an untrustworthy witness, Mr.Babu.S.Nair, learned counsel emphatically submitted that even if the evidence of PW41 contains some discrepancies or unbelievable portion, the entire deposition of PW41 cannot be rejected as such. In support of the above submission, the learned counsel further submitted that the appellate court has miserably failed to consider the scope and applicability of the maxim 'falsus in uno falsus in omnibus' in the present case, especially with respect to the evidence of PW41 . In support of his argument, the learned counsel relied on the following decisions of the Apex Court reported in Jayaseelan v. State of Tamil Nadu [(2010) 1 SCC (Cri) 224] = [(2009) 12 SCC 275], Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] and Prem Singh v. State of Haryana [AIR 2009 SC 2573]. Regarding the legal Crl.R.PNos 2924 & 3906 of 2009 :-65-:

position declared by the Apex Court through the above decisions, absolutely there is no scope for any further debate. The crucial question in this case to be considered is, even if the inadmissible or unbelievable portion of deposition of PW41 is excluded, whether the remaining deposition of PW41 is acceptable or sufficient to prove the conspiracy aspect of the prosecution cases against the accused. To discard the evidence of PW41, sufficient and cogent reasons are assigned by the appellate court and this Court is not expected to reappraise those evidence and to take a contra view. According to me, there is no scope for taking any contra view even if the evidence is reappraised. In the absence of any clear and clinching evidence, in the deposition of PW41 regarding the conspiracy, even if it is admitted the version of PW41 that he had seen accused Nos. 1 to 3 and 7 in the office of the first accused, the same is not a sufficient evidence to hold that they were engaged in conspiracy because there is nothing unusual in the presence of accused Nos.2,3 and 7, being the subordinate Police Officers of first accused unless it is specifically established that their presence was not at all required at the relevant point of time on any ground. The funny aspect of deposition of PW41, according to me, is that the first Crl.R.PNos 2924 & 3906 of 2009 :-66-:

accused discussed with PW41 to 'handle' CW1. No prudent man can come to a conclusion that, unless the first accused, who is an I.P.S. Officer and the District Superintendent of Police, has got personal confidence upon PW41, first accused would have conspired or discussed the matter with PW41 if the first accused has got any mala fide or criminal intention against CW1. So, the evidence of PW41 has been rightly rejected by the appellate court and for the reasons stated above, I find no illegality, incorrectness or impropriety on the part of the appellate court in rejecting the evidence of PW41 and holding that the prosecution has not established the criminal conspiracy.

78. In this juncture, it is also relevant to note that the appellate court has rejected the conspiracy aspect of the prosecution case not only on the basis of the incredible and unreliable evidence of PW41, but also considering the other aspect of the alleged conspiracy and the facts and circumstances involved connected therewith including the serious failure on the part of the prosecution in not examining the material witnesses and non- production of material documents. Therefore, the decisions relied on by the learned counsel have no relevance in the present case. It Crl.R.PNos 2924 & 3906 of 2009 :-67-:

is also his contention that the proved circumstances involved in the case also establish the allegations of prosecution regarding the conspiracy. It is also the submission of the learned counsel that by applying the principles envisaged under Section 10 of the Evidence Act, accused Nos.1 to 3 and 7 are liable to be convicted for the offence under Section 120B of I.P.C. as rightly done by the trial court, but the appellate court interfered with such findings of the trial court ignoring the seriousness of the crime and without properly appreciating the evidence and materials on record and simply acquitted those accused and therefore, the acquittal is liable to be interfered with and liable to be set aside and to restore the conviction recorded by the trial court.

79. The learned counsel appearing for the accused namely, Sri.C.K.Sreedharan and Sri.K.Gopalakrishna Kurup submitted that the entire prosecution case is false and all the accused are entitled to get a clear acquittal. It is also the submission of the learned counsel that the prosecution has miserably failed to establish the allegation of conspiracy against the accused, especially in the absence of any material or evidence to substantiate the motive alleged by the prosecution, it cannot be held that the prosecution Crl.R.PNos 2924 & 3906 of 2009 :-68-:

has succeeded in establishing the allegation of conspiracy. It is also the submission of the leaned counsel that the prosecution has suppressed material evidence and thereby miserably failed to establish the allegation of conspiracy against the accused. It is also the submission of the learned counsel that the evidence produced by the prosecution is not trustworthy and sufficient to prove any of the allegations levelled against the accused. It is also the contention of the learned counsel that the evidence on record would show that CW1 was taken into custody towards the discharge of the official duty and part of the investigation of crime in which CW1 was the accused and the claim of prosecution that the accused caused loss to CW1 under the guise of search and seizure is not proved, but it is proved as false in the light of the defence evidence adduced in this case.

80. It is also the preliminary legal objection taken by counsel appearing for the accused that there is limitation in interfering with the order of acquittal by this Court while exercising the revisional jurisdiction, especially when the revision petitioner in Crl.R.P.No.3906 of 2009 is miserably failed to point out any manifest error occurred or any fundamental mistake committed by Crl.R.PNos 2924 & 3906 of 2009 :-69-:

the appellate court in acquitting the accused. Both the counsel are unanimous in their submission that there is no scope for re- appreciation of evidence so as to interfere with the order of acquittal and convicting the accused.

81. In the light of the finding arrived on by the lower appellate court and the rival pleadings and also considering the available materials and evidence on record, the question to be decided is whether lower appellate court has committed any manifest error or any glaring defect, which resulted in flagrant miscarriage of justice in its finding that the prosecution has thoroughly failed in proving the involvement of accused Nos.1 to 3 and 7 as the conspirators, either to do an illegal act or a legal act in an illegal manner and the lower appellate court is correct in acquitting accused Nos. 1 to 3 and 7 for the charges under Section 120B of I.P.C. It is also the question to be considered as to whether the prosecution has succeeded in establishing the charge against second accused under Sections 342 and 427 of I.P.C. and if the charge is proved, whether the sentence modified and imposed by the appellate court is reasonable or liable to be interfered with.

82. Before the consideration of the above question, it is only Crl.R.PNos 2924 & 3906 of 2009 :-70-:

just and proper to consider the contentions raised by the counsel for the accused regarding the scope for interference with the order of acquittal while exercising the revisional jurisdiction of this Court. A detailed discussion in this regard is not warranted since the position is now well settled. Sri.K.Gopalakrishna Kurup, by citing the decision of the Apex Court reported in K.Chinnaswamy Reddy v. State of A.P. and another (AIR 1962 SC 1788), submitted that High Court has only limited scope in interfering with the order of acquittal. In the above decision, the Apex Court has indicated some cases in which the High Court can interfere with the finding of acquittal. Para 7 of the above decision is as follows:-

"7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently, there has been a flagrant miscarriage of justice.

Sub-section(4) of S.439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not, convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the Crl.R.PNos 2924 & 3906 of 2009 :-71-:

power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the Trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the Trial Court has wrongly shut out evidence which the prosecution wished to produce or where the appeal court has wrongly held evidence which was admitted by the Trial Court to be inadmissible, or where material evidence has been overlooked either by the Trial Court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S.439(4). We have, therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles." (emphasis supplied)

83. Sri.C.K.Sreedharan, learned counsel for the revision petitioner, one of the accused by citing the decision of the Supreme Court reported in Jagannath Choudhary v. Ramayan Singh [2003(1) KLT 400 (SC)], submitted that the High Court can interfere Crl.R.PNos 2924 & 3906 of 2009 :-72-:

with the order of acquittal only on exceptional situations where the justice delivery system requires interference for correction of a manifest illegally or prevention of a gross miscarriage of justice. Similarly, the Apex Court has held in Vimal Singh v. Khuman Singh (AIR 1998 SC 3380) that in revision, ordinarily High Court does not interfere with the judgments of acquittal and interference is limited to exceptional cases, such as Trial Court's order suffering from glaring illegality or has caused miscarriage of justice or there was absence of jurisdiction to try the case or trial court has illegally shut out the evidence which should have been considered or where material evidence clinching the issue was overlooked. In the decision reported in Bansi Lal and others v. Laxman Singh (AIR 1986 SC 1721), the Apex Court has held that the High Court's power to set aside the order of acquittal should be sparingly exercised. Keeping in mind the above jurisdictional limitation, let us examine the issues referred above.

84. In the present case, though the trial court has found that accused Nos.1,2,3 and 7 were involved in the conspiracy, the appellate court has held that the prosecution has miserably failed to establish the conspiracy of allegations against the above accused Crl.R.PNos 2924 & 3906 of 2009 :-73-:

and all of them were accordingly acquitted. In this juncture, it is also relevant to note that even according to the allegation, the prosecution has no allegation of overt act against accused Nos.1 and 7 except their role in the conspiracy. More particularly, the allegation against first accused is that he is the master brain behind the conspiracy and all other accused conspired with him. With respect to the allegation against seventh accused, except the mere allegation that he had gone to Wayanad and got prepared Ext.P12, no other overt act is alleged and only further allegation is that he was found in the Contessa Car seen at the Sudhinam compound. The conspiracy is defined under Section 120A of I.P.C. which reads as follows:-

"120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely Crl.R.PNos 2924 & 3906 of 2009 :-74-:

incidental to that object."

Thus, going by the definition of conspiracy, it can be seen that two or more person must agree to do an illegal act or which has to be done by illegal means. Therefore, the physical manifestation of an agreement is an essential requirement of conspiracy. It is also a settled position of law that the conspiracy is always being hatched in secrecy and it is difficult to get direct evidence, but the same is not impossible also. In the decision reported in Vijayachandran v. Superintendent of Police (2008(3) KLT 307), the learned single Judge of this Court has held that a reading of S.120-A I.P.C. reveals that to constitute the offence of criminal conspiracy, there must be an agreement between two or more persons. Such agreement must be, to do or cause to be done, a particular act or acts of the nature specifically referred to in the said section. Such acts may be either illegal as stated in sub-clause (1) of S.120-A I.P.C. or, it may not be illegal. If such act is not illegal by itself, sub-clause(2) of S.120-A I.P.C. requires that such act is to be done or caused to be done, by illegal means. The proviso to S.120-A lays down that no agreement, except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done Crl.R.PNos 2924 & 3906 of 2009 :-75-:

by one or more parties to such agreement, in pursuance thereof. As per the explanation, it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Thus, if the above ingredients in S.120-A are satisfied, an agreement between two or more persons can be designated 'criminal conspiracy'. As far as criminal conspiracy is concerned, the factum of 'agreement' is the most relevant factor constituting the offence. The court must be satisfied that the accused has entered into an agreement of the nature referred to in S.120A I.P.C. on a particular day or during a particular period at a particular place or places and there was meeting of minds of two or more persons in a particular manner.

85. In the very same decision, it was held that if any offence is committed on a particular day or during a period at a particular place or places in a particular manner, such details should be ascertained at least before framing of charge and stated in the charge. It is a legal requirement also. A joint reading of S.211 and S.212 of the Code reveals that the charge "SHALL" contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of Crl.R.PNos 2924 & 3906 of 2009 :-76-:

which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. This requirement is mandatory and the omission to mention the details not only violates mandatory provision of law, but also prejudices the accused. To avoid making any omissions while framing charge, Form No.32 of Schedule II of the Code and the relevant provisions of the Code relating to charge shall be followed by the court. The court has to fill up the relevant details in the form of charge under S.120B I.P.C. Thus, the charge must contain the date or period during which and the place at which, the accused agreed with the co-conspirator to do or caused to be done the particular act which is either illegal, or not illegal. If not illegal, by illegal means in a particular way. It shall also contain the particular act or acts which he has allegedly done, besides the agreement. The offence of criminal conspiracy is an independent offence and a person cannot be held guilty of such offence without proof of all the ingredients of S.120A I.P.C. It is not sufficient if the court vaguely states in the charge that the accused conspired to commit a particular act etc. The particular day/period, time and place at which and the manner in which the offence was committed cannot be presumed by the Crl.R.PNos 2924 & 3906 of 2009 :-77-:

Court from vacuum. The secret nature of the offence is no excuse for the prosecution for not placing the relevant particulars of the offence such as date, time, place etc. before court., Several other offences like theft, murder etc. are also committed in secrecy and the prosecution is bound to allege the date/period during which the incident occurred and the place where it happened and also the manner in which it was committed.

86. In the present case, let us examine whether the prosecution has proved that the conspiracy has taken place within a particular period, time and place. In this respect, it is relevant to refer the first issue framed by the trial court that contained in paragraph 5 of the trial court judgment which reads as follows:-

"1. Whether on 12.2.1988 or any time before that date A1,2,3 and 7 entered into a criminal conspiracy at District Police Office, Kannur and agreed to do certain illegal acts against CW1 and his Sudhinam Office and Jyothi Printing Press as alleged? "

But, from the charge of the investigating agency, no details of conspiracy prior to 12.2.1988 is mentioned. But, the very allegation is that first accused and Police Officers were awaiting for an opportunity to wreck vengeance because of the defamatory or Crl.R.PNos 2924 & 3906 of 2009 :-78-:

scandal or adverse report published by CW1 in his Sudhinam daily earlier to 2.2.1988 and 12.2.1988. In this case, the dates are relevant. 12.2.1988 is the date on which the prosecution alleged that the above accused were found in the office of the first accused. But, that is after 2.2.1988 on which date the news regarding the rape against Adivasi girl was published in the Sudhinam daily. According to the allegation of the prosecution, accused Nos. 1 and other Police Officers were annoyed or infuriated due to to various derogatory news items appeared in the Sudhinam on various dates prior to 2.2.1988 and because of such publication, the accused some time in February,1988 entered into a conspiracy at Kannur and agreed to do certain illegal act to voluntarily cause hurt and wrongful confinement of CW1 and to cause wrongful loss and damage to Sudhinam Office and Jyothi Printing Press of CW1 situated at Fort Road at Kannur. But, absolutely, there are no averments and there is no evidence or material as to which are the dates on which such news items published in the Sudhinam daily and which news were capable to infuriate first accused and Police Officers to enter into such a criminal conspiracy etc. There is also no evidence or allegation as to when and where the criminal Crl.R.PNos 2924 & 3906 of 2009 :-79-:

conspiracy staged prior to 12.2.1988. So, absolutely there were no pleadings and charges regarding the particular date, period, time and place and the manner in which the offence of conspiracy was committed, as laid down by this Court in the decision reported in Vijayachandran's case (supra). Even going by the prosecution allegation, the conspiracy alleged, even if it is taken as correct and proved, only after the publication of the news item on 2.2.1988. That conspiracy is though a part of allegation, the prosecution case is in a different way. There were certain "provoking" or infuriating articles which contained in the Sudhinam daily, published much prior and earlier to 2.2.1988 and the publication of such derogatory article forced the accused to enter into conspiracy and as a result of such conspiracy, the accused were awaiting for an opportunity. Therefore, it is incumbent upon the prosecution, by furnishing the details supported by the evidence, to plead when was the defamatory articles published, what was such news items and how and why such news items instigated and forced the accused to enter into a conspiracy as alleged for doing such illegal act. Only when such details are furnished, the court of law can appreciate the allegation of conspiracy. So the essential part of the so-called Crl.R.PNos 2924 & 3906 of 2009 :-80-:

conspiracy has not been specifically pleaded and proved. The above failure also adversely affected the prosecution, especially regarding the 'motive' for the alleged conspiracy and the consequent act.

87. The prosecution in all cases necessarily need not establish the motive. When there is direct evidence regarding the commission of the offence, motive has no prominent role. If the offences are purported to be proved by establishing indirect evidence or circumstantial evidence, the motive has a vital role. The failure on the part of the prosecution in properly pleading and establishing the motive was seriously agitated by the defence even during the trial stage, by citing the decisions of the Apex Court reported in 1999 SC Crl.644. But, the learned Magistrate failed to consider the same in its seriousness. It is also a settled position that once the prosecution alleged the motive and on its failure to establish the same or withdrawn from such alleged motive, it is open to the court to draw adverse presumption against the prosecution after considering the particular facts and circumstances involved in the particular case and the allegations raised. Especially considering the status of the accused and their plea, I am of the view that failure on the part of the prosecution to establish the Crl.R.PNos 2924 & 3906 of 2009 :-81-:

motive, which once alleged, certainly will go against the prosecution and in favour of the accused. On the strength of the decision of this Court in Dasan and others v. State of Kerala (1986 KLT 598), Sri.Babu.S.Nair submitted that the motive has no role in the present case because there are direct evidence connected with the conspiracy and also regarding the materialisation of the criminal design. Learned counsel also relied upon the decision of the Supreme Court reported in Yogesh v. State of Maharashtra [2008 (3) KLT SN 90 (C.No.110)(SC)]. According to me, the above decisions are not applicable in the light of the facts and circumstances involved in the present case. In the present case, the accused are Police Officers and it is their specific plea and admission that CW1 was arrested in pursuance of a registration of crime against him and they have discharged their official duty only. If that be so, it is incumbent upon the prosecution to prove the motive which is already alleged beyond reasonable doubt especially, when the direct evidence claimed and adduced by the prosecution are not sufficient to prove the conspiracy.

88. I have already referred the prosecution allegation regarding the alleged conspiracy. According to the prosecution, the Crl.R.PNos 2924 & 3906 of 2009 :-82-:

publication of adverse or derogatory report against first accused and other Police Officials motivated the accused to enter into a criminal conspiracy and pursuant to such conspiracy, they committed the other offences. But, no evidence is adduced by the prosecution in support of the motive for the accused to enter into such alleged criminal conspiracy. It is true that the prosecution has presented Ext.D1 series of documents along with the report, but the same were not produced and marked during the trial. The lower appellate court has mistakenly held in paragraphs 18 and 19 of its judgment that non-production of those publications will not lend any support to the appellants since the appellants have no case at any point of time while cross-examining the witnesses that no such publication has been there in the Sudhinam daily against the Police, especially against the first appellant. Same is the approach made by the trial court also as seen from the discussion contained in paragraph 88 of the trial court judgment. The trial court, by invoking Section 106 of the Evidence Act, held that it is for the accused to plea and prove the fact within their knowledge and thus, the burden is on them. I am unable to endorse the above finding and observation of the learned Sessions Judge as well as the trial Crl.R.PNos 2924 & 3906 of 2009 :-83-:

court. When the prosecution makes a particular allegation, especially in the present case against a Senior Police Officer and his subordinates and especially when the investigation is conducted by the C.B.I. like agency, it is up to them to produce all relevant materials and evidence by way of evidence for the scrutiny of the court. The prosecution agency must show requisite ability, integrity and firmness in their stand. The prosecution has to establish its case by providing its own evidence and not to lean towards the weakness or defect of the accused/defence. The legal requirement of establishing the alleged motive is more clear and specific from the grounds urged by the revision petitioner in Crl.R.P.No.3906 of 2009 and the same is quoted herein below for convenience:-

"H. It is submitted that the evidence in this case very clearly shows that it is the accused No.1, the then Superintendent of Police, Kannur, against whom several allegations of attrocities were there and the same were published in the Daily, printed and published by the defacto complainant, which really is the root cause for the entire episode of torturing, manhandling the de facto complainant and the destruction of the printing press and the office of the Daily. The appellate court considering it not to be the motive but the lowest standard of the Daily, which is not at all relevant, while deciding the case of the offences committed against the de facto Crl.R.PNos 2924 & 3906 of 2009 :-84-:
complainant ......................... ............................... ....................."
I. The court below ought to have found that in order to prove conspiracy, it is not likely to have direct evidence. The conspiracy can be proved with the attending circumstances of each case. The grudge nursed by the first accused towards the defacto complainant due to the derogatory reports against him appeared in the Daily, and the subsequent events engineered by the first accused using his subordinate officers, which are proved with cogent evidence, itself is sufficient to prove conspiracy. ........ ....... ............... ..................... ..................... ........... .........
.............................
J. ............................................. ....................................... ..................... ........
K. It is submitted that the court below tried to justify the action of the second respondent/1st accused, by saying that there is no conspiracy for the reason that what accused No.1 had done, on receipt of Ext.P10 complaint, he had forwarded the same for registering the crime and to conduct investigation to the accused No.2, which is legal. In this connection, the entire backdrop of the crime, its motive, highhandedness shown subsequently by the police, manipulation of Ext.P10 complaint itself, and subsequent manipulation of other documents are the very relevant facts, which intentionally or unintentionally omitted to be taken note of by the Learned Sessions Judge."

In the present case, the accused, who are Police Officers, have specifically pleaded and admitted the arrest of CW1 towards the Crl.R.PNos 2924 & 3906 of 2009 :-85-:

discharge of their official duty. Under the above particular factual background of the case, it is incumbent upon the prosecution to prove motive, which they have already alleged. As I indicated earlier, the prosecution allegation regarding the conspiracy is incomplete and imperfect and even such incomplete allegation of conspiracy, prior to 2.2.1988 has not been pleaded and supported by materials and not proved by adding satisfactory evidence. So the 'motive' alleged for the conspiracy has not been established by the prosecution. So the non-production of materials and evidence in support of the alleged motive and the failure on the part of the prosecution to establish such motive will go against the prosecution.

89. It is also relevant to note that the evidence regarding the conspiracy, allegedly taken place after 2.2.1988, according to me, is insufficient to canvass a conviction against the accused, especially the particular facts and circumstances involved in the case. As indicated earlier, there is no evidence or pleadings regarding the conspiracy prior to 2.2.1988. Even if there is any provocative article against the first accused and other Police Officers, there is no allegation or evidence for the conspiracy prior to 2.2.1988 or 12.2.1988. Admittedly, the first accused was the District Crl.R.PNos 2924 & 3906 of 2009 :-86-:

Superintendent of Police at that time and there was nothing unusual for his presence in the office. The other accused viz., accused Nos.2,3 and 7 are also subordinate to first accused and in the absence of any materials or evidence regarding the publication of adverse report which are sufficient to provocate against them and any direct circumstance or evidence, their presence together in the office of first accused cannot be treated as part of conspiracy. In the absence of any convincing and clinching evidence in support of conspiracy, especially when the accused pleaded and admitted the arrest of CW1, connected with Crime No.50 of 1988 as part of their official duty, no offence under Section 120B is attracted merely for the presence of the accused in the office of the first accused. In the light of the above facts, circumstances and the discussion, the failure on the part of the prosecution to establish the motive, which once alleged, will certainly go against the prosecution and resultantly the same created doubt in the mind of the court and the very veracity of the prosecution case itself.

90. The appellate court, after detailed consideration, found that Ext.P12 complaint was not prepared by CW47 or her parents, but somebody else had done it. The prosecution case is that after Crl.R.PNos 2924 & 3906 of 2009 :-87-:

appearance of the news regarding the rape on CW47, the accused took steps towards the materialisation of their criminal design against CW1 and as a result of that, seventh accused went to Wayanad and met CW47 and her parents and got Ext.P12 typewritten and obtained their thumb impression. There is no convincing evidence to prove those facts and no opinion can be drawn on surmise. The first and best witness to prove the above allegation is none other than CW47 Manja who is still alive, but the prosecution miserably failed to examine her. Therefore, there is no evidence regarding the role of seventh accused with respect to Ext.P12 complaint. So regarding the very inception of the prosecution case, absolutely there is no evidence. In the absence of any evidence, it cannot be held that the prosecution has succeeded in establishing that aspect of the conspiracy. Otherwise, PW19, the S.P.Wayanad, who forwarded Ext.P12 to first accused, will also become an accused. The appellate court has specifically found that Ext.P47 reveals that the mother of CW47 died on 24.12.1988 and her husband died in the year 1992. PW46, the Investigating Officer had deposed before the court that Manja was available and she did not appear, though summons were issued to her. For the non- Crl.R.PNos 2924 & 3906 of 2009 :-88-:

production of Cw.47 Manja, the learned trial court Magistrate made an evasive observation to the effect that "it is to be remembered that the process issued from the court to witnesses are to be served by the Police of the State". The above observation appears to be a prejudiced one. As correctly observed by the appellate court, the C.B.I. could have produced CW47 and assisted the court to find out the real truth, especially whether Ext.P12 complaint was voluntarily prepared by her or at the instance of some interested person and whether the accused has got any role in getting prepared Ext.P12. But, no effective step was taken either by the court or by the investigating agency to get examined CW47. So, the non- examination of CW47, who is a very material witness to prove the aspect of conspiracy, is a serious lapse on the part of the investigating agency and therefore, I have to endorse the finding of the lower appellate court that "Since the conspiracy angle has been stemmed from Ext.P12 complaint and a signatory to that, who is an important witness was not examined without any concrete reason, the court has no other option, but to draw adverse inference that examination Crl.R.PNos 2924 & 3906 of 2009 :-89-:

of Manja would spoil the theory of conspiracy built up on Ext.P12 complaint."

91. As far as the prosecution case is concerned, the preparation of Ext.P12 complaint and its forwarding to the first accused and consequent registration of crime against CW1 are only first part of the conspiracy. In order to prove the conspiracy, the prosecution further relies upon the evidence of certain witnesses and other materials. Thus, when we are going by the chronology of the incident as alleged by the prosecution, one piece of evidence relied on by the prosecution is the deposition of PW1. He deposed that second accused told PW1 that first accused wanted to get CW1. Pws.7,8,10, 12, 18 and 33 in their depositions have also stated that they were told from the Police Station that they would not have permitted to meet CW1 since there was direction from first accused. On the basis of the above mere statement of those witnesses, whether the court of law can come into a conclusion that there was a conspiracy among the accused. In this juncture, it is also relevant to note that Ext.P12 complaint was forwarded by PW19 from Wayanad to first accused and it is the first accused who transmitted Crl.R.PNos 2924 & 3906 of 2009 :-90-:

the same to the Kannur Town Police Station. Therefore, there is nothing to hold that first accused has any criminal intention. It is also relevant to note that whether the above evidence of those witnesses can be swallowed as such because if there is any conspiracy, whether the subordinate Police Officers will disclose the identity of their superior Officer, who is also an accused. Another set of evidence is that when all these witnesses went to the office of the S.P. and when first accused was met, they were told that he will not permit CW1 to open the press and when the witnesses replied that they would not return without CW1, first accused got infuriated. It is quite unbelievable to accept the above version of those witnesses. To connect the first accused with the conspiracy, the prosecution relied upon the evidence of Pws.1,3 and 6, who states that they saw KRO 7777 Contessa Car belonged to the first accused. Those witnesses have no case that they have seen the first accused at the place of arrest of CW1. In the absence of any positive evidence showing the presence of first accused, even if it is proved that the said car was seen near the place of arrest of CW1, no conclusion can be arrived that first accused has any role in the conspiracy. In this respect, it is relevant to note that the Crl.R.PNos 2924 & 3906 of 2009 :-91-:

prosecution miserably failed to examine CW60, who is none other than the father-in-law of the first accused and in fact, the prosecution has miserably failed to establish the ownership of the above mentioned car. Therefore, the alleged presence of the Contessa car is not sufficient to connect the first accused with the incident and the alleged conspiracy. Another witness cited by the prosecution is PW13, who is a landlord of the building of which the ground floor, wherein Sudhinam Office and Jyothi Printing Press were housed. According to the prosecution, PW13 has been called by the first accused and the first accused offered to help PW13 to get the key so as to open the building. PW13 is closely associated with CW1 and therefore, he is an interested witness and hence it is not safe to act upon the evidence of PW13 and he had also failed to identify first accused in the box.

92. Another witness of prosecution to prove the conspiracy is none other than PW41 who was working as Dy.S.P. at that time. According to PW41, he was in the office of the first accused from 11 a.m. till 11.30 p.m. on the date of the occurrence and according to his deposition, he had seen accused Nos.1 to 3 and 7 in the office of the first accused in the morning as well as in the night. According Crl.R.PNos 2924 & 3906 of 2009 :-92-:

to PW41, the first accused enquired with him that whether action should be taken against CW1 as he is misusing the Sudhinam daily against the Police Authorities. Then, according to PW41, he replied that the publications were made by CW1 in accordance with his freedom. It is also the case of PW41 that he had warned accused Nos.2 and 3 that if they are going to harass CW1, they will be put in trouble. After consideration of the evidence of PW41, the appellate court has held that the evidence of PW41 does not support the conspiracy angle put forward by the prosecution. The reasons assigned by the appellate court to come to such a conclusion appear to be very proper and legal. According to me, PW41 is an unbelievable and untrustworthy witness. As indicated earlier, according to CW1, there was a discussion by the first accused about taking action against CW1 and it is also his case that PW41 had advised accused Nos.2 and 3 not to harass CW1, otherwise they have to face the consequence. The first accused is the District Superintendent of Police, who is an I.P.S.Officer. If the prosecution case is true, can a prudent man believe that the first accused like a superior officer will discuss with PW41, unless the first accused has got much confidence, intimacy and relationship with him, to take Crl.R.PNos 2924 & 3906 of 2009 :-93-:

revenge against CW1. For the above sole reason, the version of PW41 is liable to be discarded and rejected. It is also relevant to note that Ext.D16 report prepared by PW41 was produced only at the instance of this Court as per the direction in Crl.R.P.Nos.3794 of 2008 and 3795 of 2008. Ext.D16 is the report filed by PW41 to the first accused after conducting the enquiry with respect to the allegation of torture of CW1, wherein it is stated that the allegation of assault of Maniyeri Madhavan is false. The appellate court has rightly observed that PW41 has formulated such an opinion on perusing the wound certificate and questioning others and it is stated in Ext.D16 "However, there were no visible injuries on the person of Maniyeri Madhavan, except small aberration as on his lips and it seems that the allegation of torture by police is raised to counter act the criminal case registered against him." The appellate court has also observed that why a responsible officer like PW41, who was aware about all these in advance had filed such a false report like Ext.D16. So, according to the appellate court, the credibility of witnesses like PW41 is shaky and therefore, while appreciating his evidence, close scrutiny, care and caution are required. PW41 was the person Crl.R.PNos 2924 & 3906 of 2009 :-94-:

appeared as PW3 in O.S.No.235 of 1990 of the Sub Court, Thalassery which is a suit filed by CW1 for realisation of compensation. By giving sufficient and acceptable reasoning, the appellate court doubted the very integrity of PW41 and his evidence. Therefore, the appellate court is legal and correct in scrutinising the evidence of PW41.

93. Subsequently, the appellate court considered the presence of accused Nos.2,3 and 7 in the office of first accused and further found that there is nothing unusual for their presence in the office of the first accused. In this juncture, it is relevant to note that regarding the alleged conspiracy, the main evidence pressed into service by the prosecution is that of PW41, the Dy.S.P., who stated that he had seen the above four accused in the office of the first accused. PW41 has no case that he had participated in the discussion and he had any knowledge about the agreement arrived into by the accused. He had nothing stated in his deposition about the conversation among the accused. I have already referred the version of PW41 regarding the discussion conducted by the first accused and the same is not acceptable for the reasons stated thereon. Even otherwise, it can be seen that in the absence of any Crl.R.PNos 2924 & 3906 of 2009 :-95-:

other incriminating evidence or deposition of PW41, even if the first accused enquired with PW41 about the action to be taken against CW1, that is only part of his official duty especially, when the complaint is against an Editor, Publisher of an evening daily on the basis of the complaint received by him from PW19. Therefore, at any stretch of imagination, it cannot be held that the prosecution has proved the offence of criminal conspiracy against the first accused and other accused. It is also relevant to note that accused No.2 was the S.I.of Police, Kannur Town Police Station and he was incumbent to register a crime when he received the complaint from the office of the first accused. Therefore, nothing is to hold that second accused registered Ext.P41 F.I.R. as a result of conspiracy between the accused. As indicated earlier, it is undisputed fact that accused Nos.2,3 and 7 are subordinate Police Officers of the first accused-the Superintendent of Police. The presence of these officers in the office of the first accused is quite natural and there is nothing unusual, unless it is shown that at no stretch of imagination, their presence is not at all required when PW41 had allegedly seen them in the office of the first accused. Absolutely, no evidence is produced by the prosecution to show the above aspect. When there Crl.R.PNos 2924 & 3906 of 2009 :-96-:

is no convincing and clinching evidence to prove that accused Nos.2,3 and 7 assembled in the office of the first accused to conspire with first accused, the prosecution version that they were entered into conspiracy on 12.2.1988 when PW41 had seen them in the office of the first accused, cannot be believed.

94. The lower appellate court, after considering the evidence and materials, connected with the registration of the crime against CW1 and his arrest, has held that even if the second accused has said that first accused wanted CW1, that cannot be taken as an evidence under Section 10 of the Evidence Act. The Appellate court has also found that the alleged presence of the seventh accused in the Contessa Car is doubtful. The Appellate Court has also observed that the prosecution has suppressed the statement of CW1 and connected records pertaining to Crime No.52 of 1988 which was the first statement given by CW1 after his release by the learned Jurisdictional Magistrate on self bond. The appellate court has also observed that PW1 has admitted that he had met CW1 in the hospital with others and if PW1 had actually seen seventh accused in the Contessa Car at the time of arrest, he would have conveyed the same to all those he had met especially to CW1 when Crl.R.PNos 2924 & 3906 of 2009 :-97-:

he visited in the hospital. So whether CW1 has stated in the F.I.Statement in Crime No.52 of 1988 regarding the presence of the seventh accused as conveyed by PW1 is a relevant fact and because the prosecution agency suppressed those materials, the lower appellate court has drawn an adverse inference against the prosecution. In this juncture, it is relevant to note that the charge sheet filed by the prosecution reveals that the Police has seized the documents in Crime No.52 of 1988 which is mentioned in the charge sheet as item Nos.41,42 and 51. The lower appellate court has further observed that the allegation of prosecution that the story pertaining to the Contessa Car, following the jeep, was conspicuously absent in Ext.P43 furnished by CW1 after 2= years. So, the alleged presence of the seventh accused at the time of arrest of CW1 was also not proved by the prosecution and so regarding the conspiracy aspect of the prosecution case, absolutely there is no convincing and acceptable evidence and the lower appellate court by assigning sufficient reasons found that the prosecution has miserably failed to establish the allegation of conspiracy against the seventh accused.

95. In the light of the above discussion and the materials and Crl.R.PNos 2924 & 3906 of 2009 :-98-:

evidence referred above, I am of the view that by assigning cogent and sufficient reasons, the lower appellate court unerringly concluded that the prosecution has miserably failed in proving the involvement of accused Nos.1,2,3 and 7 as the conspirators. So I find no illegality or manifest error to interfere with the order of acquittal recorded by the appellate court in favour of accused Nos.1,2,3 and 7 for the offence under Section 120B of the I.P.C. It is also my considerable opinion that the prosecution has miserably failed to establish the motive for the alleged conspiracy and also failed to plead and prove the alleged date, period, place of conspiracy and thus, the prosecution has miserably failed to establish the essential and inevitable ingredients of Section 120B of the I.P.C. and accordingly, the acquittal of accused Nos.1,2,3 and 7 recorded by the appellate court is confirmed.

96. Regarding the offences under Sections 323 and 357 of I.P.C. I am of the view that the appellate court is correct and legal in acquitting all the accused. The appellate court elaborately considered the allegation in paragraph 31 regarding the allegation of custodial torture and the learned Sessions Judge in his judgment quoted that part of the charge sheet connected with the custodial Crl.R.PNos 2924 & 3906 of 2009 :-99-:

torture and thereafter, extracted the contents of Ext.P43 written complaint filed by CW1 to the Central Range, D.I.G.of Police, i.e., after 2= years from the date of the alleged incident. The allegations in the complaint and the charge sheet is in such a manner that the wound certificate issued by PW15, immediately after admitting CW1 in the District Government Hospital, Kannur would show that a small abrasion on the inner surface of upper lip and the injured was having the complaint of pain in the left shoulder and the alleged cause is stated as follows-

       "                8           police

                                           ................."

The evidence of Doctor, who examined CW1, says that the injuries are very minor in nature and there was no mark of violence on the outer surface of his lips. The Doctor has also stated that there was no bleeding and injury which could be self inflicted and the Doctor has also stated that if there was any mark of violence in the body, she could have noticed in the wound certificate. It is also relevant to note that though the injury was only a small abrasion, CW1 was treated as an inpatient for six days i.e., from 13.2.1988 to 19.2.1988. The appellate court has also observed that PW16 has no Crl.R.PNos 2924 & 3906 of 2009 :-100-:

satisfactory explanation to the question as to why he had treated CW1 for a long period as an inpatient for the minor abrasion. The lower appellate court has also considered the dismissal of O.S.No.235 of 1990 by the Sub Court, Thalassery wherein the finding of the learned Sub Judge is to the effect that the allegation of torture was a false one. In the said suit, CW1 was examined as PW1 and as per his deposition before the Sub Court, he was not manhandled in the Police Station, but in the jeep. The learned Sessions Judge has also referred the version of CW1 to the effect that he was not beaten with lathy by the police. Thus, the lower appellate court has categorically found that "the evidence tendered before the Sub Court by CW1 herein and his version before the Doctor, who had admitted hours after the incident shows that he had cooked up the story of torture as an afterthought by taking advantage of the effect that he was not produced in the Police Station immediately after his arrest." Thus, the lower appellate court concluded that the evidence adduced by the prosecution would show that no such torture was meted out to CW1.

97. Learned counsel Mr.Babu.S.Nair, in support of his Crl.R.PNos 2924 & 3906 of 2009 :-101-:

argument against the acquittal of the accused for the offence under Sections 323 and 357 from which he placed reliance upon the decisions reported in Raghubir Singh v. State of Haryana (1980 Crl.L.J 801) and Munshi Singh Gautam v. State of M.P. (2005 Crl.L.J.320). In the present case, it can be seen that the accused have not disputed the arrest of CW1 and their plea regarding the minor injury on the inner side of the upper lip was that the same was self inflicted one. Besides the above injury, nothing was noted by PW15 or PW16, the Doctors who treated CW1. The wife of CW1 when she was examined, she had deposed that CW1 resisted the arrest. It is also relevant to note that in Crime No.50 of 1988, there was one more accused viz., Muneer who was also arrested on the same day and produced before the learned Magistrate. The said Muneer was not examined by the prosecution and had he been examined, the court would have been in a position to analyse the entire allegations with better evidence. It is also relevant to note that according to the prosecution, it was the second accused and other accused and unidentifiable Policemen effected the arrest of CW1 and had taken him into the Police jeep and removed CW1 to the Police Station. Regarding the police torture, there is no direct Crl.R.PNos 2924 & 3906 of 2009 :-102-:

evidence. It is also relevant to note that even according to the prosecution, second accused alone was not in the Police jeep and there were other accused and Police personnel, but the trial court itself acquitted all other accused. Therefore, in the absence of any concrete and direct evidence that accused Nos.2 or 3 had inflicted injury or assaulted CW1, especially when the other accused who were in the Police jeep, were acquitted, accused Nos.2 and 3 cannot be convicted and as such, the prosecution miserably failed to prove the allegation against accused Nos.2 and 3 under Sections 323 and 357 of I.P.C. As I have already approved the acquittal of accused Nos.1 and 7 for the offence under Section 120B, their acquittal under Sections 323 and 357 as recorded by the appellate court is also approved. Therefore, the acquittal of accused Nos.2 and 3 under Sections 323 and 357 recorded by the appellate court requires no interference and I have no hesitation to approve the above order of acquittal with respect to accused Nos.2 and 3 for the offences under Sections 323 and 357 of I.P.C. For short, the acquittal of accused Nos.1,2,3 and 7 under Sections 323 and 357 are also confirmed.

98. Next we will consider the revision petition filed by Crl.R.PNos 2924 & 3906 of 2009 :-103-:

accused Nos.2 and 3 challenging their conviction and sentence under Sections 342 and 427 of I.P.C. Section 342 of I.P.C. prescribes punishment for wrongful confinement. Section 340 I.P.C. defines wrongful confinement which reads as "whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person." In the present case, the accused admitted that CW1 was arrested and confined in the Police Station. It is also their case that subsequently, CW1 was produced before the jurisdictional Magistrate viz., PW44. As the accused has admitted the arrest of CW1 and also endorsed the minor injury sustained by CW1, even though not in the manner alleged by the prosecution, it is for accused Nos.2 and 3 to see that CW1 is safely released leaving no scope for any future complaint, especially when CW1 had minor injury and blood stains on his shirt. It is true that CW1 was produced before the jurisdictional Magistrate within the statutory period from where CW1 was released on self bond. When the offence alleged is a bailable offence, there is no justification for keeping CW1 in the lock-up and failure in producing him before the Crl.R.PNos 2924 & 3906 of 2009 :-104-:

Magistrate, immediately after the arrest or at least after completing the other formalities. Under the above factual situation, especially when the accused have positively admitted the arrest of CW1, I find no reason to interfere with the conviction recorded by both the trial court as well as the appellate court against the revision petitioners under Section 342 of I.P.C.

99. The next challenge in the above revision petition is against the conviction of accused Nos.2 and 3 under Section 427 of I.P.C. The main contention advanced on behalf of the revision petitioners is to the effect that the finding of the trial court as well as the lower appellate court under Section 427 is not sustainable especially in the light of Exts.D5 and D11 judgments. O.S.No.235 of 1990 is a suit filed by CW1 for damages on the basis of the alleged damage caused at the instance of the accused connected with the so-called search and seizure conducted in the office of the Sudhinam daily. O.S.No.42 of 1989 is another suit in the same Sub Court at Thalassery, preferred by one Ullattil Meenakshi Amma, who was the owner of Jyothi Printing Press which was situated adjacent to Sudhinam Office and where the Sudhinam evening daily were being printed. The learned Sub Judge dismissed both the suits by Crl.R.PNos 2924 & 3906 of 2009 :-105-:

Exts.D5 and D11 judgments respectively. Thus, according to the accused, the offence alleged under Section 427 of I.P.C. is not proved and no conviction can be recorded. I am unable to sustain the above argument. I am of the view that whatever be the outcome in a civil proceedings connected with the same cause of action or same set of allegation, the same is not binding upon the criminal courts and it is for the criminal courts based upon the materials and evidence before it to consider whether the offence under Section 427 is attracted or not and if the finding is positive, to inflict proper punishment and to grant adequate relief and compensate the loser.

100. As the appellate court and this Court have already found that the prosecution has not succeeded in proving the allegation of conspiracy, the question to be decided is whether accused Nos.2 and 3 have committed the offence of mischief as alleged by the prosecution. In this juncture, it is relevant to note that Crime No.50 of 1988 was registered for the offence under Section 228 of I.P.C. and under Section 7(1)(d) of the P.C.R.Act against CW1 and one Muneer. The Appellate Court has rightly held "as far as Section Crl.R.PNos 2924 & 3906 of 2009 :-106-:

228 A is concerned, the commission of the offence is completed when the identity of the raped victim is published without the consent(See 1988 Crl.L.J.3688 (sic. 1998 Crl.L.J.3683) Madras Lekshmipathi v. Ramalingam". The above finding was entered into by the appellate court while answering to a question mooted by itself to the effect that whether search of Sudhinam Office and press was necessitated for a successful investigation of Ext.P41 crime or not. It is to be noted that the search was conducted without the order of the concerned Magistrate and the reason stated in Ext.P42 search memo for conducting the immediate search appears to be incorrect and unwarranted. At the most, what required is the seizure of Sudhinam Daily dated 2.2.1988 and connected papers connected with Crime No.50 of 1988. It is also relevant to note that even though the two suits mentioned above were dismissed, the prosecution has produced Ext.P31 interim report and Ext.P32 final report which were part of the suit for damages. PW34 the Advocate Commissioner, who prepared the above reports, had been examined and according to his deposition, he had visited the press with the assistance of experts and the reports were marked as Exts.P33 and Crl.R.PNos 2924 & 3906 of 2009 :-107-:

P34. The evidence of PW22 further disclosed that CW1 had incurred a sum of Rs.12,500/- towards the expenses for the repair work of machinery. In the light of the above facts and circumstances, I am of the view that considering the allegation contained in Ext.P41 F.I.R., the search and seizure effected in Printing Press was not required and considering the other evidence and materials referred above due to that search and seizure, CW1 had sustained pecuniary loss and therefore, the conviction recorded by the trial court as well as the lower appellate court against accused Nos.2 and 3 under Section 427 requires no interference and accordingly, the conviction of accused Nos.2 and 3 under Section 427 of I.P.C. is also confirmed.

101. In the light of the above finding and confirming the conviction of accused Nos.2 and 3 under Sections 342 and 427 of I.P.C., the next question to be considered is whether any interference is required with respect to the quantum of sentence ordered by the lower appellate court.

102. As I mentioned earlier, third accused is no more. He had expired after the filing and during the pendency of the above revision petition. Second accused has already retired from service. Crl.R.PNos 2924 & 3906 of 2009 :-108-:

The alleged incident had taken place about 22 years back. The allegation of the prosecution agency regarding all other substantial offences against second and third accused and all other accused are found as incorrect and not proved and accordingly, they are acquitted. It is also relevant to see that accused Nos.2 and 3 were ordered to pay Rs.25,000/- each under Section 427 of I.P.C. besides the imprisonment till rising of the court under the above two counts. The finding under Section 427 of I.P.C. is with respect to the mischief committed with respect to the property of CW1 and on finding such guilty, the compensatory relief is already ordered which according to me, is sufficient to meet the ends of justice especially, when second accused has already retired from service and third accused is no more. No punishment of imprisonment more than a day that is, till the rising of the court, requires in the interest of justice, especially when the alleged offence had taken place 22 years back. The lower appellate court, on recording the conviction of accused Nos.2 and 3 under Sections 342 and 427 of I.P.C., in exercise of its discretion, imposed the above sentence and order for compensation, which according to me, for the above mentioned reasons, is quite legal, proper and adequate. Therefore, Crl.R.PNos 2924 & 3906 of 2009 :-109-:

I find no reason to interfere with the order of sentence and direction to pay compensation under Section 357(3) of Cr.P.C.

In the result, Crl.R.P.No.3906 of 2009 is dismissed confirming the order of acquittal recorded by the appellate court acquitting accused Nos.1,2,3 and 7 for the offences under Sections 120B,323 and 357 of I.P.C. and confirming the conviction and sentence of imprisonment and direction for compensation and default sentence thereon imposed against accused Nos.2 and 3 under Sections 342 and 427 of I.P.C. Crl.R.P.No.2924 of 2009 preferred by accused Nos.2 and 3 is also dismissed confirming their conviction and sentence under Sections 342 and 427 of I.P.C.

Accordingly, both the revision petitions stand dismissed.

(V.K.MOHANAN) Judge MBS/ Crl.R.PNos 2924 & 3906 of 2009 :-110-: