Ponnan, Balachandran, Kunhukuttan and Krishnankutty vs State of Kerala

K.P. Balachandran, J.—The petitioners are the accused Nos. 1 to 4 in Crime No. 147/93 of Shoranoor Police Station registered for offences under Sections 143, 147, 148, 149, 341, 324, 326, 307, 455 and 427 IPC. On the final report in the case being laid before the Judicial First Class Magistrate''s Court, Ottappalam, the case was registered as Committal Proceedings No. 5/96 on the file of that Court. On committal, the case was registered as Sessions Case No. 104/96 of Palakkad division in the Sessions Court, Palakkad. It was made over to the Assistant Sessions Court, Ottappalam for trial and disposal. The Assistant Sessions Judge on hearing the prosecution and perusing the prosecution records, framed charge against all the accused in the case namely the accused Nos. 1 to 12 on the allegation that they being members of an unlawful assembly formed with the common object of doing away with Pws.1 to 3 have at about 7.30 p.m on 21/10/93 on the public road at Panayoor in prosecution of their common object committed rioting armed with deadly weapons; blocked autorikshaw bearing registration No. KL-9A-6863 in which they were travelling and accused 4, 6, 7 and 8 pulled out PWs.1 to 4 from the autorikshaw and bet them with sticks that thereafter accused Nos. 1, 7, 8 and 10 chased PW3 who attempted to escape from the scene and caused grievous hurt to him by beating with sticks and accused Nos. 1 and 2 pelted stones at the dwelling house of CWs.5 and 6 bearing Door No. X/436 of Vaniyamkulam Panchayath where PW3 has taken shelter, causing thereby damage to the extent of Rs. 100/- to the said building and thereby they committed offence under Sections 143, 147, 148 as also offence under Sections 341, 324, 326, 307, 455 and 427 IPC read with Section 149 thereof.

Prosecution examined PWs.1 to 19; got marked Exts.P1 to P23 and got identified Mos.1 to 6. On the prosecution closing their evidence, the accused were questioned by the Assistant Sessions Judge u/s 313 Cr.P.C and heard both sides. As the learned Assistant Sessions Judge was of the view that this is not a case for acquittal u/s 232 of the Cr.P.C, he called upon the accused to enter upon their defence, but no evidence was adduced in defence. Hence, evidence was closed and arguments were heard by the Learned Assistant Sessions Judge. Even before the trial began, A9 died and hence, charge against him had abated.

Considering the evidence adduced as aforesaid, the learned Assistant Sessions Judge found accused Nos. 5 and 10 not guilty and acquitted them and found accused Nos. 1 to 4, 6 to 8, 11 and 12 guilty of the offence with which they stood charged; convicted them thereunder and sentenced them to undergo R.I. for a term of 4 months for offence u/s 143 IPC; R.I. for a term of one year for offence u/s 147 IPC; R.I. for a term of two years for offence u/s 148 IPC; Simple Imprisonment for a term of one month for offence u/s 341 IPC; R.I for a term of two years for offence u/s 324 IPC; R.I. for a term of three years for offence u/s 326 IPC and R.I for a term of 5 years for offence u/s 307 IPC. For offence u/s 326 and 307 IPC over and above the substantive sentence of rigorous imprisonment respectively for three years and five years, sentence of fine of respectively Rs. 3,000/- and Rs. 5,000/- were also imposed on the accused with a default sentence of rigorous imprisonment for two years each. Aggrieved by the said conviction and sentence, accused Nos. 1 to 4, 6 to 8, 11 and 12 filed Crl. Appeal No. 25/98 before the Sessions Court, Palakkad and vide judgment dt.18/05/02 in the said appeal, the learned Additional Sessions Judge found accused Nos. 6 to 8 as also accused Nos. 11 and 12 not guilty of the offence with which they stood charged and acquitted them of those offences, but confirmed the conviction and sentence passed against the present petitioners who are accused Nos. 1 to 4. Hence, this revision.

It is contended on behalf of the petitioners by the learned Counsel for the petitioners that there is absolutely no convincing evidence to hold the petitioners guilty of any of the offences with which they stood charged and that the evidence tendered by the witnesses would show that some affray has taken place between the two factions of rival political parties and that suppressing that aspect in the F.I. statement, the conspired attempt on the part of the witnesses who allegedly sustained injuries in the occurrence was to rope-in all persons with whom they have political animosity and that aspect looms large from their evidence; that there is no evidence in the case from any independent witness as regards the occurrence and that in any event, in the circumstances of the case, the petitioners should have been acquitted by the courts below granting them at least benefit of doubt.

The counsel further submits that even in the testimony of PWs.1 to 4 who are the injured, there is absolutely no corroboration and also that the medical evidence also is not consistent with the evidence tendered by the prosecution witnesses as to the manner in which they sustained injuries and that considering the entire circumstances of the case this is a fit case where the petitioners are entitled to be acquitted invoking the revisional jurisdiction of this Court.

I heard the arguments of the learned Counsel for the petitioner and the Public Prosecutor for the respondent/State and they have taken me through the entire evidence in the case especially the ocular testimony of PWs.1 to 6 who are the occurrence witnesses of whom PWs.1 to 4 are the injured.

PW5 is an immediate neighbour to the scene of occurrence and PW6 is driver of the autorikshaw wherein PWs.1 to 4 were allegedly travelling and was waylaid by the accused in the case, according to the prosecution. Before going into the evidence of the witnesses it would be worthwhile to consider in detail the F.I. statement given by PW1/Rajan to the Head Constable of Shoranoor Police Station, when he was approached at the hospital namely the Ottappalam Valluvanad Hospital where he was under treatment, late in the night on 21/10/93 namely at 1.30 a.m on 22/10/93. Ext.P1 is the F.I. statement. It is seen that PW1 has stated to PW16/the Head Constable who recorded the F.I. Statement that himself his brother Unnikrishnan, Ramankutty and Raghu (PW2, PW4 and PW3 respectively) hired an autorikshaw to go to their houses at Panayoor; that when the autorikshaw reached in front of the house of Kumara Chettiyar at Panayoor, the autorikshaw was waylaid by a group of people and demanded them to get down from the autorikshaw; that seeing sticks in their hands they did not alight from the autorikshaw; that then A1 to A5 forcibly got them out from the autorikshaw and immediately on his alighting from the autorikshaw, one person dealt a blow on his head with a bamboo stick; that sustaining injury he fell down and thereupon he was beaten below his knee which rendered pain to his leg; that PW3 also sustained injuries to his head and he also is under treatment in the hospital; that seeing this, persons who were with him took to heels and himself and Raghu (PW1 and PW3) were brought over to the said hospital in a jeep by Manikantan (PW5) and others and got him admitted in the hospital. He further stated that they are sympathisers of congress and assailants were sympathisers of Marxist Communist party and that the attack was lodged against them on account of political animosity. The occurrence was stated by him to be at 7.30 hours in the evening and he stated that he witnessed the occurrence in the light from the autorikshaw and in light at dusk (\\m+v shfn(w).

The evidence of PW6/the autorikshaw driver as regards the occurrence in chief examination itself is that while he was proceeding with four passengers in his autorikshaw, he saw a group of people standing at Panayoor; that thereupon the passengers asked him to stop the vehicle and that the group of people were standing 50 feet away from the place where the autorikshaw was stopped. He was declared hostile and cross examined by the Prosecutor. He has denied Ext.P3 C.D. statement stated to have been given by him to the police. In further cross examination by the Prosecutor, he has stated that he is not aware as to whether the passengers in his autorikshaw were taking to heels being afraid and he did not observe anything in the hands of the group of people who had assembled at Panayoor. However, he admitted that he came to know later the next day that the passengers in his autorikshaw the previous day sustained injuries and therefore, he did not make any attempt to get the hire charge of the autorikshaw from them. According to him, he is also not familiar with the persons who travelled in his autorikshaw.

It is worthy to note that as against the F.I. statement given by PW1, he has embellished his version and developed his case when examined as PW1 specifying the acts done by each of accused 1 to 4 as also the other accused except accused Nos. 5, 11 and 12. He has also a case that PWs.2 to 4 took to heels and they were chased by the accused and he was sheltered in the house of Kumara Chettiyar/the father of PW5 and later A1, A2, A8 and A10 came over there and demanded for himself being released from the said house and pelted stones at that house. In cross examination, in his anxiety to support the case against the accused, he has stated that even at the time of giving the F.I. statement he was aware of the names of those who made attacks and did overt acts. In certain matters he says that he had told those details also to the police, but in other matters he says that he did not tell the police. He has however, admitted that no identification parade was conducted to identify those who have waylaid the autorikshaw and who caused bodily harm. It is also brought out in cross examination of PW1 that there are several persons at the place Panayoor having the names of the accused in the case and that he has not given any details of the accused to the police so as to enable their identification. The fact that the autorikshaw driver did not remain there is admitted also by PW1 when he says that being afraid the autorikshaw driver left the place immediately.

PW2 is the brother of PW1. He also states that they are sympathisers of Congress and the accused are sympathisers of Marxist Communist Party and that there were several cases even before this occurrence between sympathisers of both the above political parties. According to him, the occurrence was being witnessed by him in the light from the autorikshaw and in moonlight. No evidence is forthcoming from any other witness that it was a moonlight night. He has stated that bodily harm was caused to him by two persons; that out of the two persons who did bodily harm to him one caused bodily harm to Rajan as well (PW1); that bodily harm was done to PW1 only by one accused and that what he told to the Circle Inspector when questioned was only that he found PW1 being chased by A1 to A3 and that he is aware of only that and nothing else. According to him, he ran for about half a kilometre and went to his house and had a sound sleep. His version is that when autorikshaw was waylaid and they were dragged out from the autorikshaw, all of them viz. PWs.1 to 3 were taking to heels running in different directions and they met thereafter only the next day in the hospital. He also does not say that any injury was inflicted on PW1 by any of the accused in his presence dragging him out from the autorikshaw. He has also admitted in cross examination that he has not disclosed to the police the residential address or the names of the parents of the assailants so as to enable identification of the assailants. Apart from saying that the cause for the occurrence is political animosity, neither PW1 nor PW2 say as to what is the animosity or the provocation that prompted the accused to waylay the autorikshaw and to attack PWs.1 to 4. The testimony of PW3 specifying the names of a few of the accused is stating that he could identify them in the light from the headlight of the autorikshaw. According to PW3, they were being dragged from out of the autorikshaw one by one and were being beaten; that PW1 fell down sustaining injury; that PW2 took to his heels sustaining injury and that all the nine persons whom he has named have beaten him; that he also took to his heels and that all the named nine accused have chasten him when he ran to the residential garden of Rajalekshmi teacher where also he was beaten by all of them. It is strange that when according to the prosecution case when there are twelve accused who were in the gang constituting an unlawful assembly, only the named persons attacked PW3 and he witnessed all of them chasing them into the residential garden of Rajalekshmi teacher and beating him all after 7.30 p.m. in the night where obviously the light from the headlight of the autorikshaw was not there. It is further strange that he has identified MOs.1 to 3 which has no identification marks as the stick which were used to beat him though he is not able to say as to who were carrying those sticks. PW3 has also admitted in cross examination that the accused were not shown to him by the police and got identified; that the accused whom he has named are residing in several houses and are engaged in different avocations and they have no personal animosity towards him. It is to be noted that PW3 has admitted that he was giving statement to the police only the next day and PW2 has admitted that all of them have met in the hospital the next day and obviously there was sufficient time for PWs.1 to 4 to make out a specific case as against the accused by naming at least a few of them. However even those accused who were named are not at all got identified by the police through the witnesses, when they were questioned and no identification parade was also conducted thereafter especially when it is the admitted case that there are ever so many persons having the same name in that locality. The testimony of PW3 is quite unbelievable when he says that there is a distance of 150 metres to the house of Rajalekshmi teacher and while he was taking to his heels he was beaten by six or seven persons and that as he was taking to his heels turning back he was able to see as to who all were beating him. The time then was obviously 7.30 p.m. much after sunset. He has further stated that no one has witnessed him being beaten while he was taking to his heels or himself being beaten within the residential premises of Rajalekshmi teacher. He admits that he has not given details of the accused who have inflicted particular blows on his body when he was questioned by the Circle Inspector of police. On the whole, the testimony of PW3 which contains embellishments from that of the version given by him to the police and specifying the accused who inflicted blows on him cannot be believed and his testimony on those aspects cannot be corroborated either as he himself admits that nobody has witnessed himself being beaten while he was taking to his heels nor has anyone witnessed himself being beaten while he was in the residential garden of Rajalekshmi teacher.

PW4 has admitted in cross examination that he did not go to hospital as he had not sustained any injuries. He also has stated that PWs.1 to 4 who were travelling in the autorikshaw were taking to heels in four different directions and that they could meet only the next day. He has also given statements embellishing the versions he has given to the police. PW5 has not supported the prosecution case and has turned hostile and nothing could be elicited by the prosecutor despite cross examining PW5 at length. On the whole, it is a case where there is no reliable and convincing evidence furnished by the prosecution as to the members who constituted the unlawful assembly and as to any of the overt acts done by any of the accused and the courts below were also not satisfied that there was convincing evidence to enter into a conviction of the other accused other than the petitioners. The petitioners were being convicted for the sole reason that their names find a place in the F.I. statement and FIR. Though the name of A5 also is there in the F.I. statement, A5 was found to be not guilty as there was no statement from the witnesses as to the overt acts, if any, done by A5, but all the same, the same is the position in relation to A1 to A4 as well as their implication in any overt act is only the result of a conspiracy by PWs.1 to 4 putting their heads together after their meeting on the next day of the occurrence and that accounts for the absence of any overt act by any of the accused being stated by PW1 in Ext.P1 F.I. statement. The mere mention of the names of A1 to A5 can only be a case of animosity that looms large between the followers of the congress party and the Marxist communist party and those whose names are made mention of might naturally be the prominent persons among them. If it was otherwise, there was no reason for PW1 not to give any details of any overt act and mentioning only that one person among them dealt a blow on his head with a bamboo stick.

It is also worthy to note that in Ext.P1 F.I. statement while mentioning about someone dealing a blow on the head of PW1, the words

is an insertion in between words

and

. No lethal weapon was used in the occurrence and it is not established on evidence that MOs.1 to 3 are dangerous weapons. It appears that the insertion of the utterance was for the purpose of incorporation of Section 307 IPC also to the crime to make the crime more grievous so as to be tried by a Sessions Court which usually is the tendency found in politically motivated cases. The mention of the names of A1 to A4, in the circumstances, does not gain any importance so as to fasten criminal liability on them and mentioning of their names in the embellished statements given subsequently by the witnesses after meeting of minds of PWs.1 to 4 on the next day of the occurrence can only be taken as a politically motivated conspired attempt to rope in those persons against whom the witnesses belonging to a particular political party is entertaining animosity. The first appellate court which found all the other accused except accused numbers 1 to 4 guilty was being led away by the fact of mentioning of their names in the F.I. statement. Without considering the fact that in the F.I. statement, there is absolutely no details furnished by the informant/PW1 of any of the overt acts having been done by them. The result is that the concurrent conviction of the petitioners who are accused Nos. 1 to 4 in the case deserves to be interfered with in revision by this Court as their conviction is incorrect, illegal and improper.

In the result, allowing this Crl. R.P., I set aside the concurrent conviction and sentence passed against the petitioners/ accused Nos. 1 to 4 by the courts below for offence punishable under Sections 143, 147, 148 as also for offence under Sections 341, 324, 326 and 307 IPC read with Section 149 thereof and acquit them of those offences. Their bail bonds are cancelled and they are set at liberty. Fine, if any, deposited by the petitioners are allowed to be withdrawn by them moving appropriate applications in the court below.