Jayakumar @ Jayan vs State of Kerala

K.P. Balachandran, J.—The petitioners are accused Nos. 1 and 2 in Crime No. 139/91 of Eloor Police Station registered for offences under Sections 143, 147, 148 as also under Sections 341, 323, 324, 326, 427 and 307 IPC read with Sections 149 thereof inter alia on the allegation that they along with seven other accused who all were members of the Industrial Workers Solidarity Union who on account of animosity towards PW2 (CW2) who was the President of INTUC Union of Eloor formed themselves into an unlawful assembly with the common object of doing away with PW2 and in prosecution of their common object they have at 8.35 a.m. on 13/11/91 armed with deadly weapons committed rioting near the road at Elanjikkal temple; waylaid the car wherein PW2 was travelling and attempted to commit murder of PW2 by cutting him with weapons and beating him with iron pipes and voluntarily caused hurt also to PW1, the driver of the car in which PW2 was travelling. PW13 the Sub Inspector of Police, Eloor registered Crime No. 139/91 of Eloor Police Station recording Ext.P1 F.I. statement from PW1 who was under treatment in the hospital. The investigation in the case was thereafter taken over by PW14/the Circle Inspector of Police, Kalamassery who conducted the initial part of the investigation in the case and the investigation in the case was thereafter taken over by PW15 on 04/11/92 on the direction of the City Police Commissioner and PW16/the Circle Inspector of Police, Kalamassery completed the investigation and laid the charge against all accused 1 to 9.

The Final Report was taken on file by the Judicial First Class Magistrate, North Parur as Committal Proceedings No. 18/94 and on committal, the case was registered on file of the Sessions Division, Ernakulam as S.C.118/94. The Sessions Judge made over the case to the Assistant Sessions Judge, North Parur. The Assistant Sessions Judge heard preliminary arguments; framed charge against the accused and questioned them and as all the accused pleaded not guilty, a trial of the case was conducted. Prosecution examined PWs.1 to 16; got marked Exts.P1 to P14 and got identified MOs.1 to 11. On the defence side Exts.D1 to D6 contradictions in C.D statements of the witnesses were marked.

On the prosecution closing their evidence, the accused were questioned u/s 313 Cr.P.C. Thereupon all the accused generally denied all incriminating circumstances appearing in evidence against them and maintained that they are innocent. However, no evidence was adduced in defence. The Assistant Sessions Judge considering the entire evidence in the case found accused Nos. 1 to 3 guilty of the offences under Sections 143, 147, 148, 341, 323, 324, 326, 427 and 307 IPC read with Section 149 thereof and convicted them thereunder and found accused Nos. 4 to 9 guilty of only the offences punishable under Sections 143, 147, 148, 341, 323 and 427 IPC read with Section 149 thereof; heard the accused on the question of sentence and sentenced them under the relevant provisions.

In Criminal Appeal No. 59/97 filed by the accused the Additional Sessions Judge, North Parur, set aside the conviction and sentence passed against accused Nos. 3 to 9 and acquitted them of all the offences with which they stood charged giving them benefit of doubt in the light of the unconvincing testimony of witnesses implicating them in the commission of the crime. As regards accused Nos. 1 and 2 the appellate court confirmed the conviction and sentence of A1 and A2 u/s 143, 147, 148 IPC; altered the conviction u/s 324 IPC to one u/s 323 IPC set aside the conviction u/s 326 IPC and altered the sentence u/s 341 and 323 IPC and reduced the sentence respectively to one month and one year respectively from one year and two years. The conviction and sentence u/s 307 IPC read with Section 149 thereof was however, confirmed. Hence, this revision by accused Nos. 1 and 2.

It is vehemently contended before me by the learned Counsel for the petitioners that there is absolutely no reliable evidence in the case on which a conviction can be sustained even for the petitioners; that the case is one foisted by the INTUC Union in Eloor industrial area against the accused for having formed a parallel union namely Industrial Workers Solidarity Union, Eloor leaving from the INTUC Union as a consequence of Sri.K.Karunakaran, the leader of the Congress leaving the congress party under which INTUC is working and that out of the four occurrence witnesses namely PWs.1 to 4, PWs.3 and 4 were disbelieved by the first appellate court; that the evidence of PWs.1 and 2 are also far from being reliable to sustain a conviction on their testimony as against the petitioners; that the investigating officer in the case who conducted the initial part of the investigation has not cared to verify the correctness of the version of PW1 as regards the occurrence in the F.I. statement given to PW13/the Sub Inspector of Police who registered the crime and that on a close analysis and appreciation of the testimony of PWs.1 and 2 the fact that the case is one foisted on account of animosity towards the accused and by way of retaliation is evident and that for the above reasons the petitioners also ought to have been acquitted by the first appellate court.

It is seen from Ext.P1/F.I. Statement given by PW1 that he is a driver employed in the INTUC Office and was driving the car of PW2, who was the President of the Eloor Area of the INTUC. According to him, he was driving the car KLB 2689 with PW2 as the sole passenger in the car; that near the Elanjikkal bridge, seeing a car coming in the opposite direction along the wrong side of the road, he stopped his car; that the car, which was coming in the opposite direction, was having KLU registration in which the first accused and ten to eleven others were there; that immediately on stopping the car, they jumped out from the said car with sword sticks and surrounded the car driven by him and broke its glasses and two or three persons pulled him out from the car uttering to do away with him and then the first accused and others pulled out PW2 from the back seat of the car and inflicted injuries on his body chopping with sword sticks; that PW2 thereupon fell down and when people began to assemble, the assailants got into their car and drove away towards Kalamassery. As per Ext.P1 F.I. Statement of PW1, the assailants were four or five persons belonging to solidarity union and others were also familiar to him having seen them at Eloor. He further stated that other than the first accused there was no other known leader and that there was industrial disputes in existence between the INTUC union and solidarity union and that it may be on account of that animosity that PW2 was attacked with the intention of doing away with him. He also stated in Ext.P1 that immediately on the assailants leaving the place, he took PW2 in the car to the Janm Hospital and that after examination by the Doctor, PW2 was referred to the Medical Trust Hospital and he himself was continuing in the Janm Hospital for the injuries sustained to him.

It is worthy to note that PW1 has not mentioned the name of any of the assailants other than the first accused in Ext.P1 F.I. Statement. He has also not given any description of any other accused so as to enable their identification. No identification parade was also conducted by the Investigating Officer and the accused were not got identified also by witnesses. In fact, going by the testimony of PW1 other than himself and PW2, there is no other occurrence witness who can swear as to the manner in which the occurrence has taken place and the court below has rightly disbelieved the testimony of Pws.3 and 4. In chief examination also, the testimony of PW1 is to the effect that he knows two or three persons from among the accused. This goes against his F.I. Statement itself, as he has stated in the F.I. Statement that 4 to 5 persons were persons who are members of the solidarity union and others were persons who are known to him having seen them at Eloor. In his chief examination what he has stated is that two of the assailants pulled him out from the driving seat and identified them as A8 and A9 mentioning their name as Silvestor and Velayudhan, but then it is not known as to why he has not stated their names in the F.I. statement. His further version in the chief examination is that three of the assailants were having sword sticks with them and the others were having iron sticks, pipe and wooden sticks and that A1 inflicted a cut on the head of PW2 and the others were inflicting cuts on him in quick succession. He also mentioned the names of A1 and A2 as persons who were holding the sword sticks. PW1 has further stated in chief examination that he has not stated in Ext.P1 that PW2 was pulled out from the back seat though there is such a statement in Ext.P1. Even in chief examination, he admitted that he did not have any external injuries on his body. In cross examination, he admits that after giving Ext.P1 F.I. statement he was questioned by the police only a year thereafter. He further admitted that when he was questioned in the hospital for the purpose of recording Ext.P1. F.I. statement, he mentioned the name of A1 only as he did not know the name of anyone else from among the assailants and he stated that he realised their names only after a year. It is strange and unbelievable that PW1 could ascertain the names of the assailants only after a year when the assailants are all persons in the Eloor industrial area and a few of them were members also of the rival union namely the Solidarity Union. He has also admitted in cross examination that ever after the occurrence, the police has not shown any of the accused to him. PW1 has also admitted that even when he was questioned by the Circle Inspector, he was aware of only the name of A1 and it was then he stated it to the police that he is having acquaintance with the other assailants by sight only. He further asserted in cross examination that it is true that while giving statement, he told to the Circle Inspector that he is not aware of the names of any of the accused, but that the said statement was false and that he did not experience any difficulty or embarrassment in making such false statement to the investigating officer. Though PW1 has identified the weapons alleged to have been used in the commission of the crime his testimony reveals that none of those weapons were got identified through him by the police and that he was identifying those weapons in court only to support the prosecution. When it was suggested to him in cross examination that whatever was sworn by him before court is false and that he was giving false evidence on account of attachment and affinity towards PW2, his answer was that he has nothing to say. PW2 is the alleged injured himself. PW2 has stated in chief examination that A1 was originally a member of Bharatiya Mazdoor Sangh for short BMS that then he joined the INTUC and thereafter he formed a union as solidarity union severing from INTUC; that he continues in the Congress Party and is President of the INTUC Union at Eloor. Though PW2 has given evidence mentioning the names of all accused he has admitted that his statement was recorded by the police only in November, 1992 after about a year of the occurrence. He admitted in cross examination that the Solidarity Union was formed in the interest of the Ex.Chief Minister Sri.K.Karunakaran and that he (PW2) was aware that if the said Union gains strength, it would be a threat to his Union namely INTUC, but such a situation will not arise. Again to the specific question in cross examination as to whether, it is to ensure that the rival union do not gain strength that they were attacked by those in the INTUC union, PW2 answered in the affirmative and he has asserted that it was not happy for him for a rival Union coming into existence. When he was asked as to whether the INTUC workers attacked those who organised the Solidarity Union, he has answered that it is on account of the labour dispute. At one stage of the cross examination, when he was asked as to whether it is not true that he does not know the names of those who caused bodily harm to him, PW2 had no answer thereto. The specific question put to PW2 was as to whether it is not on account of his animosity towards members of the solidarity union that after a year of the occurrence he gave statement to the police implicating them and is tendering evidence before court though his answer thereto was in the negative. PW2 has also admitted that the occurrence of the INTUC workers attacking the first petitioner/first accused and others was an incident that took place about two months prior to the occurrence involved in this case. PW2 also admitted that to the Doctor in the Medical Trust Hospital, he had given a brief description of the occurrence to the effect that one Varghese Vevukadan, Jayan, Bharathan and 10 to 12 persons identifiable at sight have inflicted injury on his body, but that Varghese Vevukadan is not an accused in the case and that A3 Varghese is not Varghese Vevukadan that he knows Varghese Vevukadan and he was mentioning the name of Varghese Vevukadan under the impression that Varghese Vevukadan who is a worker of Congress (I) is also involved in the occurrence. PW2 has admitted that he has not entrusted his clothes to the police at any time whatsoever. The result is that the case is one wherein PW1 has given Ext.P1 F.I. statement to the police immediately after occurrence while he was admitted in the hospital; that PW2 alone was the other occurrence witness and the police had not questioned either PW1 or PW2 till November, 1992 namely for about a year and that a Final Report is laid completing the investigation in a hurried manner in 1992 without conducting any proper investigation into the case. As rightly contended by the counsel for the petitioners, there is no reliable evidence in the case on which the conviction can be sustained against the petitioners and that the case is one foisted by the INTUC Union in Eloor industrial area against the members of the newly formed rival union namely the Solidarity Union and that the evidence of PWs.1 and 2 discussed above is far from being reliable to sustain a conviction on their testimony as against the petitioners. It is also true that the investigating officer has not cared to verify the correctness of the version of PW1 as regards the occurrence in the F.I. statement given to PW13 who registered the crime and even PW1 at one stage has disowned also Ext.P1 F.I. statement stating that certain statements given by him are not there in Ext.P1, but that while getting the F.I. statement signed from him those statements were also there. The inconsistencies in the testimonies of PWs.1 and 2 and the admitted animosity between members of the rival union who are arraigned as accused including petitioners 1 and 2 pave way for this Court to form a strong suspicion that the present case is one foisted against political opponents by members of the INTUC group at Eloor; that earlier also admittedly there were instances when the accused were attacked by members of the INTUC union and that it is not safe in the circumstances to enter into a conviction of the petitioners/A1 and A2 on the sole testimonies of PWs.1 and 2 which are unreliable for the purpose of resting a conviction of the petitioners on their testimony.

In the result, allowing this Crl. R.P. I set aside the conviction and sentence passed by the first appellate court against the petitioners/A1 and A2 and acquit them of the offences under Sections 143, 147, 148, 341, 323 and 307 IPC read with Section 149 thereof for which offence were a conviction against them confirmed by the first appellate court though modifying the conviction and sentence to some extent. The petitioners are acquitted and their bail bonds are cancelled.