Skip to content


Ahmed Kutty Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 343 of 1961
Judge
Reported inAIR1963Ker152; 1963CriLJ597
ActsIndian Penal Code (IPC), 1860 - Sections 2II; Code of Criminal Procedure (CrPC) , 1898 - Sections 164
AppellantAhmed Kutty
RespondentState of Kerala
Appellant Advocate V.R. Krishna Iyer and; M.M. Abdul Khader, Advs.
Respondent AdvocateState Prosecutor
DispositionRevision allowed
Cases ReferredIndian Penal Code. (Vide Sahadeo Karan Singh v. Emperor
Excerpt:
criminal - conviction - section 211 of indian penal code, 1860 and section 164 of criminal procedure code, 1898 - petition filed challenging conviction of petitioner under section 211 - conduct of police in matter strange and unusual - it found that case against petitioner was registered by police very promptly and without due enquiry - prosecution based upon statements recorded under section 164 which cannot be used as substantive evidence - in view of circumstances petitioner was falsely implicated in matter - prosecution of petitioner was unsustainable and must be set aside - petitioner accordingly acquitted. - - he unsuccessfully appealed to the sessions judge, kozhikode and has now moved this court in revision. 1) by beating him and throwing his body into the river, knowing..........the petitioner was convicted by the sub-divisional magistrate malapuram under section 211 indian penal code and sentenced to undergo rigorous imprisonment for one year. he unsuccessfully appealed to the sessions judge, kozhikode and has now moved this court in revision.2. the prosecution alleged that the petitioner a prominent.worker of the communist party falsely accused p. ws. 8 and 9 of having murdered kunhi mohammed (p. w. 1) by beating him and throwing his body into the river, knowing fully well that no such thing had taken place. p. w. 1 who took a room belonging to p. w. 8 on rent allowed the rent to fall into arrears. according to the prosecution he voluntarily surrendered the room on 8-9-1959 at 4 p. m. and handed over the key to p. w. 8. the accused and p. w. 3 another.....
Judgment:
ORDER

Anna Chandy, J.

1. The petitioner was convicted by the Sub-Divisional Magistrate Malapuram under Section 211 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. He unsuccessfully appealed to the Sessions Judge, Kozhikode and has now moved this Court in Revision.

2. The Prosecution alleged that the petitioner a prominent.worker of the Communist Party falsely accused P. Ws. 8 and 9 of having murdered Kunhi Mohammed (P. W. 1) by beating him and throwing his body into the river, knowing fully well that no such thing had taken place. P. W. 1 who took a room belonging to P. W. 8 on rent allowed the rent to fall into arrears. According to the prosecution he voluntarily surrendered the room on 8-9-1959 at 4 P. M. and handed over the key to P. W. 8. The accused and P. W. 3 another prominent member of the Communist Party approached P. W. 1 and pressed him to disappear from the place and sent him to his father-in-law's house at Cherub ad i in Nilgiris. Thereafter the accused with the intent to cause injury to P. Ws. 8 and 9 started criminal proceedings against them by sending a petition Ext. P-.f to the police alleging that Kunhi Mohammed was manhandled and forcibly evicted from the shop by them and is not to be seen in the locality. The Malapuram Police registered a case against P. Ws. 8 and 9 and others under Sections 148, 323, .448 and 426 Indian Penal Code. The case was investigated by P. W. 14 the Sub-Inspector and P. W. n the Circle Inspector and referred as false. That gave rise to the charge under Section 211 Indian Penal Code against the accused which ended in his conviction.

3. The correctness of the conviction of the accused is challenged on several grounds. Before dealing with the points raised by the learned defence counsel the charge framed against the accused in this case may be referred to. The charge reads as follows : -

'That you on or about the nth day of September, 1957 at Malapuram, with intent to cause injury to Panidkkadvath Ahammad Kutty Haji (P. W. 8) and P. K. Abdullakutty Haji-(P. W.9) instituted criminal proceedings before the Sub-Inspector of Police, Malapuram, charging the said Ahamad Kutty Haji and Abdulla Kutty Haji with having committed the offence of murder and disposal of the dead body of one T. Kunjumohammed by beating and throwing away the body in a river, knowing at the same time that there was no just or lawful ground for such proceedings against the said Ahammad Kutty Haji and Abdulla Kutty Haji; and that you have thereby committed an offence punishable under Section 211 Indian Penali Code .....'

A mere reading of Ext. P-4 should convince any one that it does not contain any accusation of the murder of Kunhi Muhammed or of having thrown the dead body into the river. The only averment made in the petition is that it is understood that Kunhi Muhammed was man-handled by P. Ws. 8 and 9 and others and forcibly evicted from the shop. No doubt the petition refers to a rumour that the man was not to be seen after that and that he might have been thrown into the river. after the assault. However there are repeated statements which would indicate that any accusation of murder was far from the mind of the petitioner- it is rumoured that Kunhi Mohammed who was beaten up has run away somewhere and has not been seen afterwards' and 'It is unlikely that even if Kunbi Mohammed comes back he will admit tho occurrence' are two such references. The wording, of the prayer in the petition is also significant. It reads as follows : -

'I therefore pray that poor Kunhi Mohammed and other 'have nots' be saved from the attacks of the 'haves' and thus the good name of the Government kept up'.

The police officer who prepared the First information report did nqt understand the petition to contain any allegation of murder or 'attempt to murder and so he. registered the case only under Sections 148, 323, 448 and 426 Indian Penal Code. Thus the charge framed by the Court against the accused must necessarily fail.

4. it is also doubtful whether the allegations-about the trespass and assault made in the petition do amount to an accusation so as to bring it within the mischief of Section 211 Indian Penal Code. The indications are to the contrary. The petitioner-did not assert that he had any definite information about the trespass and the assault nor did he vouch for the truth of the allegation. He just passes on the information that he got along with the connected rumours and suspicions to enable the police to investigate and find out the truth and take necessary action. Criminal administration would come to a stand-still if every expression of suspicion is penalised when it turns out to be wrong. The police agency is there to enquire into reported ofiences and charge-sheet true cases and discard false ones. Mere statements of facts or communications of suspicions cannot amount to institution of criminal proceedings within the meaning of Section 211 Indian Penal Code. This position is made clear in a series of decisions of the several High Courts Saminatha Thevan v. Emperor, 1912 Mad WN 1125, Kashi Ram v. Emperor, AIR 1924 All 779 and Sankar Lal v. Abdul Rahiman, AIR 1953 Assam 204. It is clear that sending a petition of the type of Ext. P-4 to the Police does not amount to the initiation of criminal proceedings within the meaning of Section 211 Indian Penal Code.

5. Yet another ingredient of the offence the prosecution is bound to prove is that the charge was wilfully false to the knowledge of the maker of the charge. Mere proof of the falsity of the complaint or the failure to prove its truth is not enough. To adduce evidence of such knowledge may be very difficult, but it is still the unavoidable duty of the prosecution to prove that, if the accused is to be convicted under Section 211. If that proof of knowledge is not insisted upon no person would feel it safe to convey information to the police about any suspicion of the commission of a cognizable case. Hassan Mirza v. Mt, Mahbuban, 18 Cal WN 391 : (AIR 1914 Cal 349) is a case in point.

In that case the wife gave information about the theft to the husband who conveyed the information to the police and action was taken. The High Court held that the charge against the accused under Section 211 cannot stand because the prosecution failed to establish that as a matter of fact there was no theft and the petitioner knew that there was no theft. Here not only has the prosecution failed to establish that the accusation of trespass and assault are not true but the admissions contained in Ext. P. I and Ext. D-5 indicate that the allegations are substantially true.

Ext. P.I is the statement of P. W. I recorded by the Executive First Class Magistrate and Ext. D-5 is a letter dated 14-9-1958 written by D. W. 5 to the accused at the instance of P. W. I. The admissions of P. W. I in Ext. P. I have been ignored by the learned Magistrate who was prepared to accept the fantastic explanation of P. W. I that the hit on the face given by P. W. 8 referred to in Ext. P. I was just a friendly pat and the appellate Judge failed to consider the definite admissions made in Ext. D. 5 though the letter was used by him against the accused.

Again there is the definite evidence of D. W. 3 the Secretary of the Communist Party of Oorakam who asserted that he had actually witnessed the occurrence and had passed on the information to the accused. It is he who got the resolution noted in Ext. D-4 Minutes Book passed at a meeting of the Party. It was resolved to convey the information about the incident to the police and to the leaders of the political parties and authorised the accused to take the necessary steps in that direction. No doubt there is an attempt in Ext. P-4. to exaggerate the incident and the language used is such that the impression created is more grave than what is warranted by the facts. But when the complaint is substantially true and what is false is a mere fringe to the complaint there is no offence made out under Section 211 Indian Penal Code. (Vide Sahadeo Karan Singh v. Emperor, 38 Cri LJ 462 : (AIR 1937 Pat 84).)

6. The circumstances of this case also do not warrant a finding that the accused in filing the petition acted with the intent to cause injury to P. Ws. 8 and 9. In filing the petition he was only carrying out the direction contained in the resolution passed at the party meeting. No doubt the resolution is safely worded and it contains a direction that after getting a statement from P. W. I the authorities may be moved. If the accused wanted to injure P. Ws. 8 or 9 he could have easily prevailed upon P. W. I to put in a petition himself to the police. The accused evidently believed in the steadfastness of P. W. I and signed the petition throwing all caution to the winds. The accused Sadhu Ahammed Kutty appears to have been more sinned against than sinning.

7. The failure to keep in mind the necessary ingredients of the offence under Section 211 Indian Penal Code and the burden on the prosecution to make out these ingredients has made the Courts to assess the evidence in the case from a wrong perspective. If the version given by P. W. I in Court that the alleged trespass and assault are untrue and that he kept off from the place at the instance of the accused to create evidence for a false charge against P. Ws. 8 and 9 is true then, he is as it were an accomplice whose evidence is tainted and has to be viewed with suspicion. The readiness with which he went away to his father-in-law's house in the Nilgiris at the behest of the accused disclosing not even to his father-in-law what prompted him to seek asylum there, and his conduct in returning to the place in disobedience of that command and walking straight into the police station to give a statement like Ext. P. I and his attempt to convert the hit on the cheek to a friendly pat, all clearly suggest that he is a person of no individuality, a reed between two strong currents, the rich and influential 'Feudal Lords' as the teamed Magistrate calls them and the Communist workers.

8. The conduct of the police also appears to be strange and unusual. They seem to have been too prompt and ready to register a case on the strength of Ext. P-4 which is only a carbon copy of a petition. They did not care to question the informant or get his signature as required in Section 154, Criminal Procedure Code. The petition was presented to P. W. 12 by a boy and he straightway registered a case without ascertaining whether the petition was actually signed by the signatory. The admission of Exts. P. I and P. 8 and P.2 in evidence has also prejudiced the accused. Ext. P. I is a statement of P. W. I recorded by the Executive First Class Magistrate and Ext. P. 7 another statement of his recorded by the Tirur Sub-Magistrate under Section 164 Criminal Procedure Code in Crime No. 72 of 1958 registered on the strength of Ext. P. 4.

It is well settled that statements recorded under Section 164 are to be used only for a very limited purpose and cannot be used as substantive evidence. In this case there is the additional circumstance that they were recorded during the investigation of some other case. Ext. P. 8 itself was not produced when P. W. I was examined and the accused had no opportunity even to cross-examine him on it. Ext. P. 2 is a similar statement by P. W. 2 recorded by the Executive First Class Magistrate. The use of these statements against the accused has considerably prejudiced him. It is strange why no objection was taken to the filing of these records in this case. It looks as if the prosecution wanted to teach the accused a lesson for his irritating interference in police matters.

In any view of the case the conviction ofthe accused is clsarly unsustainable and must beset aside. The revision petition is hence allowedand the accused is acquitted of the charge againsthim.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //