Vasu and Others vs State of Kerala

Khader, J.—At a trial of the Petitioners along with another held by the Assistant Sessions Judge, Parur for offences punishable under Sections "143, 147, 148, 323, 326, 307, 379, 109 and 149" I.P.C., the Petitioners, who are respectively accused 1 to 10, were found guilty only under Sections 148 and 307I.P.C. and each of them was convicted and sentenced to suffer rigorous imprisonment for six months on the first count and rigorous imprisonment for two years on the second count, with the direction that the sentences will run concurrently. The eleventh accused was acquitted of all the charges. On appeal, the convictions and sentences passed against the Petitioners were confirmed. They have now come up in revision challenging their convictions and sentences.

Briefly stated, the main cases against the Petitioners was that at about 3?15 p.m. on February 20, 1974 they, along with the eleventh accused, formed themselves into an unlawful assembly armed with deadly weapons with the common object of murdering P. W. 1 and that in prosecution of this common object, the accused belaboured P. W. 1 causing grievous injuries resulting in the fracture of tibia, fibula and the 5th, 6th, 7th, 8th and the 9th ribes on his right side. The incident was spread over to four places. While P. W. 1 was going along the public road on the southern side of the house of P. W. 3, at the instigation of the first accused, the fourth accused beat P. W. 1 on his forehead with an iron rod. On receiving this blow P. W. 1 ran to the house of P. W. 3 followed by the accused. P.W. 3 and the members of his house did not allow P. W. 1 to remain there and drove him out of the house, when he ran to the house of one Lakshmanan Mooppen (P.W. 4). The accused were chasing him. P.W. 4, apprehending that the accused might cause hurt to him and his wife if he gave shelter to P.W. 1, objected to P.W. 1 remaining in his house. P.W. 1 had then to run away from there and was proceeding towards the house of Devassykutty (P.W. 14). By the time he reached a property known as Purusham-paramba on the eastern side of the house of P.W. 14, the accused overtook him, surrounded and beat him with crow bars iron roads and sticks indiscriminately causing injuries on different parts of his body.

P.Ws. 2 to 6 and 11 are the eye-witnesses to the occurrence and of these P.Ws. 3, 4, 5 and 6 turned hostile to the prosecution.

At the very outset, the learned advocate appearing for the Petitioners contended that the judgment of the appellate court is thoroughly unsatisfactory, that there is absolutely no discussion and analysis of the evidence appearing against each of the accused, that the mandatory provisions in Section 354 of the Code of Criminal Procedure have been flagrantly violated, that as a result of all these, the Petitioners have been very seriously prejudiced in presenting their case in revision, where the scope is very limited in the matter of appreciation of oral evidence and that therefore, this Court be pleased to send back the case to the appellate court after setting aside the convictions and sentences passed against the Petitioners for writing a proper judgment after hearing both parties.

The counsel has taken me through the judgment of the appellate court and I find that there is substance and force in the contentions raised on behalf of the Petitioners in this regard. The appellate judgment should show that the appellate court has properly applied its mind and really considered the points involved in the case and has arrived at an independent judgment after a reappraisal of the evidence, No doubt it is not necessary that an appellate court should; write a long and elaborate judgment. Nevertheless, the judgment should be independent and self-contained so that in revision the High Court may be able to follow it without any reference to the judgment of the trial court. The, appellate court being the final court on facts, it is its duty to independently consider the evidence after a proper, analysis and discussion of the same. It is clear from Section 387 of the Code of Criminal Procedure, 1973 that an appellate judgment should comply so far as may be practicable with the mandatory provisions in Section 354(1) of the Code. Even in the case of dismissal of an appeal confirming the conviction, there should be at least a summary discussion and analysis of the material pieces of evidence in the case. In other words, however conclusive the case might be, the appellate court should deal with the case in all its aspects and the judgment of the appellate court must show, on the face of it, that the judge has applied his mind on consideration of the evidence on record and the pleas raised. A well written judgment has the advantage of giving the satisfaction or a feeling to a litigant that the Judge has taken into consideration all the relevant and material evidence and the pleas raised in the case and that his point of view has not been left unnoticed.

The necessity and importance of complying with the provisions in Section 354 which are mandatory in nature have been emphasised by this Court more than once. In this context, the Sessions Judges should realise that they are entrusted with heavy and serious responsibilities and that any error or default, even if it be the slightest, or any act tending to show lack of proper care and caution on their part is likely to shake or adversely affect the confidence of the public in the judiciary. The appellate judgment must stand by itself without being merely supplementary to the judgment of the trial court and also shall contain point or points for determination. At least the judgment should indicate that the Judge had all the material points in his mind while considering the evidence. The procedure to be followed in writing a judgment in a criminal case, especially in a sessions case, is that after stating the prosecution case and the plea of the accused, the point or points for determination should be properly formulated and the evidence on record under each of the points should be properly analysed and discussed before a finding on each point is arrived at.

The case on hand is a rioting case involving a number of accused. It is essential that in a case of this nature the evidence appearing against each of the accused has to be marshalled and discussed. This has not been done in this case by the appellate court. There is also no discussion and finding in the judgment about the common object attributed to the accused. In the light of all these infirmities, it cannot be said that the appellate judgment conforms to the mandatory provisions in Section 354 and that no prejudice has been caused to the petitioners resulting in failure of justice. If really the appellate judge had been careful enough to comply with the mandatory provisions in Section 354 of the Code of Criminal Procedure, it would have been of considerable help to this Court in revision. The learned Public Prosecutor submitted that although there are infirmities in the judgment, there is satisfactory evidence on record to support the convictions of the Petitioners. But in the light of what is noticed above and the failure of the appellate court to conform to the relevant provisions of law in this regard, I feel that in the interests of justice, the case should be sent back to the appellate court for writing a proper judgment according to law.

In the result, this revision Petition is allowed, the convictions and sentences passed against the Petitioners are set aside and the case is sent back to the appellate court for writing a fresh and proper judgment after hearing both sides and disposal of the case according to law.