Vijaya Kumar And Ors vs State Of Kerala

The revision petitioners are the accused 1 to 3 in C.C.No.910/2003 on the file of the Judicial First Class Magistrate Court-II, Kottarakkara and the

appellants in Crl.Appeal No.349/2007 on the file of the Sessions Court, Kollam. The offences alleged against the accused are punishable under

Sections 143, 144, 148, 452, 324, 326 and 506(ii) read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC').

The prosecution case in brief is as hereunder:-

On 25.10.2002 at about 8.30 pm., the accused 1 to 8 formed themselves into an unlawful assembly armed with deadly weapons for the purpose of

rioting and in prosecution of their common object criminally trespassed into the house of PWs.1 and 2 after making preparations to commit hurt with

dangerous weapons like dagger and sticks and thereafter accused Nos.1 and 6 to 8 dragged PW1 from his house towards its premises and while so,

the accused 2 to 5 wrongfully confined him and thereafter accused No.1 inflicted stab injuries on both his thighs and thereby his vein ruptured and had

sustained deep vein injury. It is further alleged that in the very same incident, the accused 6 and 7 inflicted blows on PW2 who is the wife of PW1 and

thereby she also sustained injury.

On the appearance of the accused, after having heard both sides, the trial court framed charge against the accused 1 to 8 for the offences under

Sections 143, 144, 148, 452, 324, 326 & 506(ii) read with Section 149 of the IPC. The charge was read over to which the accused 1 to 8 pleaded not

guilty.

During the trial, PWs.1 to 8 were examined and marked Exts.P1 to P5 on the prosecution side. On closing the prosecution evidence, the accused

Nos.1 to 4 and 6 to 8 were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the

evidence against them. On the side of the accused, Exts.D1 and D2 were marked. The 5th accused had absconded during the trial. Hence the case

against him was refiled as C.C.No.554/2007.

On evaluation of the evidence, the trial court convicted the accused 1 to 3 under Sections 143, 147, 452, 324 and 326 read with Section 149 of the

IPC and sentenced to undergo various counts including rigorous imprisonment for one year each for the offences punishable under Sections 326 &

452 of the IPC. Over and above, the trial court convicted and sentenced the 1st accused to undergo rigorous imprisonment for six months for the

offence under Section 148 of the IPC. The 1st accused was found not guilty of the offence under Section 144 of the IPC. The accused 2 and 3 were

found not guilty of the offences under Sections 144, 148 and 506(ii) of the IPC and accordingly they were acquitted thereunder. The accused 4 and 6

to 8 were found not guilty of the offences under Sections 143, 144, 147, 148, 324, 326, 452 and 506(ii) read with Section 149 of the IPC. Challenging

the conviction and sentence, the accused 1 to 3 preferred Crl.Appeal No.349/2007 before the Sessions Court. By its judgment dated 31.3.2009, the

learned Sessions Judge allowed the appeal in part setting aside the conviction and sentence for the offence punishable under Sections 147, 149 and

326 of the IPC and confirming the conviction and sentence imposed under Sections 324 and 452 of the IPC. Feeling aggrieved by the impugned

judgments, the revision petitioners 1 to 3/accused Nos.1 to 3 preferred this criminal revision petition.

Heard Sri.Arjun Sreedhar, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Senior Public Prosecutor for the

respondent-State.

The learned counsel for the revision petitioners Sri.Arjun Sreedhar submitted that the conviction against the accused 1 to 3 based on the interested

testimony of PWs.1 and 2 alone is improper and illegal. The learned counsel further submitted that the evidence on record, both oral and documentary

is silent as to any overt act on the part of the 2nd and 3rd accused which strengthens the defence case of false implication. Elaborating on the

submission, the learned counsel for the revision petitioners submitted that non-recovery of weapon of assault is fatal to the prosecution and the First

Information Statement in this case is silent as to the details about the overt acts on the part of the accused 1 to 3. It was further submitted that non-

examination of the Doctor, who had issued Exts.P3 and P4 wound certificates, is fatal to the prosecution.

Per contra, the learned Senior Public Prosecutor submitted that the prosecution case is supported by the evidence of PWs.1 and 2 who sustained

injuries at the place of occurrence. According to the learned Public Prosecutor, both the trial court and the appellate court concurrently found that the

accused committed the offences alleged and in the absence of any illegality or irregularity, the revisional court would not be interfered in revision.

PW1 is the husband of PW2. The occurrence in this case was on 25.10.2002 at about 8.30 pm at the residence of PW1. According to PW1, there

was an altercation between him and accused Nos.2 and 3 on the day prior to the occurrence. On the date of occurrence at about 8.30 pm, while PW1

was taking rest at his home, the 2nd and 3rd accused came there along with the 1st accused and some other accused identifiable by sight. Thereafter,

the 3rd accused sought the assistance of the 1st accused to push PW1 out of his house. The accused 1 to 3 trespassed into the house, wrongfully

restrained PWs.1 and 2 and tried to push PW1 out of the house. As a result of the push and pull, PW1 fell on the floor and while so, his wife pleaded

with them not to inflict injuries on her husband. However, the allegation is that the accused in prosecution of their common object dragged him from

the house and the 2nd accused inflicted blows on him with a stick. It is also alleged that he also inflicted another blow on his wife and thereafter the

1st accused stabbed him on both his thighs using a dagger. Soon after the occurrence, PW1 was taken to the Medical College Hospital,

Thiruvananthapuram and he underwent treatment there from 25.10.2002 till 31.10.2002. According to him, he had sustained rupture of the vein as a

result of the assault. PW1 identified the accused before court.

PW2 stated that on 25.10.2002 at about 8.30 pm, the accused criminally trespassed into her house and got in conflict with her husband. She also

stated that thereafter the 1st accused tried to push her husband down and as a result her husband fell down on the floor. She would say that she tried

her level best to prevent assault as against her husband. However, she would say that one of the assailants stabbed on the right and left thighs of her

husband with a dagger. She confirmed the version of PW1 that the 2nd and 3rd accused inflicted blows on her. She was also taken to the Medical

College Hospital, Thiruvananthapuram along with her husband.

PW3 is the daughter of PWs.1 and 2. She was not an eye witness to the occurrence. She rushed to the scene of occurrence on hearing the cry of

her mother. When she reached home, she found her father lying on the ground with stab injuries on his leg. She would say that both PWs.1 and 2

were taken to the Medical College Hospital, Thiruvananthapuram by her husband.

PW5 is the husband of PW3. He was not an eye witness and he reached the place of occurrence immediately after the occurrence and found

PW1 lying on the floor with stab injuries on his thighs.

PW6, the Head Constable attached to the Chadayamangalam Police Station proceeded to the Medical College Hospital, Thiruvananthapuram on

getting requisite information in this regard and recorded Ext.P1 FIS of PW1. He registered Ext.P2 FIR on the strength of Ext.P1 FIS.

PW8, the Sub Inspector of Police, Chadayamangalam Police Station issued notice to the accused directing them to be present before the police

station. The accused were shown to PWs.1 and 2 and their identification was confirmed. He completed the investigation and submitted the final

report. The initial investigation was conducted by CW10. CW10 was not examined. Similarly, CW8 the Doctor, who issued Exts.P3 and P4 wound

certificates, was also not examined.

The trial court convicted and sentenced the accused for the offences punishable under Sections 143, 147, 324, 326, 148, 149 and 452 of the IPC.

The appellate court allowed the appeal in part setting aside the conviction under Sections 147, 149 and 326 of the IPC confirming the conviction and

sentence imposed under Sections 324 and 452 of the IPC. The appellate court neither confirmed nor set aside the conviction under Sections 143 and

148 of the IPC. In this regard, the judgment of the appellate court is totally silent. On going through the trial court judgment, there is nothing on record

to indicate that the trial court analysed the evidence regarding unlawful assembly as contemplated under Section 141 of the IPC to fasten criminal

liability under Section 143 of the IPC as against the accused.

For an unlawful assembly, the minimum number required is five. In a case where more than five persons participated in the assembly, but the

identity of the accused was not established, it cannot be said that it was an unlawful assembly. It is necessary, therefore, for the prosecution to lead

evidence pointing to the conclusion that all the accused had done or committed some overt acts in prosecution of a common object of the unlawful

assembly. It is true that active participation in active violence is not necessary. The persons, who by words or signs or otherwise engaged in violence,

are equally members of the unlawful assembly. In this case the occurrence took place at the residence of PWs.1 and 2. Admittedly, all the persons

were not armed with deadly weapons. For the offence under Section 149 of the IPC, overt act by every person is not to be proved. The only thing

necessary to be decided is whether the accused shared the common object of the assembly. In the case on hand, the appellate court set aside the

conviction imposed against the accused for the offences under Sections 147, 149 and 326 of the IPC. However, they were convicted under Sections

324 and 452 of the IPC without the aid of Section 34 of the IPC. The operative portion of the appellate court judgment is illegal. The appellate court

maintained conviction against the accused for the offences under Sections 324 and 452 of the IPC without stating anything regarding the offences

under Sections 143 and 148 of the IPC. In this case, on a perusal of the entire evidence, there is nothing on record to indicate that all the accused

were armed with deadly weapons. In Suresh v. State of Kerala [2006 (1) KLT 78], a Division Bench of this Court held that the conviction of all the

accused for the offence under Section 148 of the IPC without a finding that those who were so convicted were armed with deadly weapons is

unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for

the mere reason that they were members of an unlawful assembly. There is a distinction between the offences under Sections 146 and 148 of the

IPC. The offence under Section 146 of the IPC is punishable under Section 147 of the IPC. To constitute the offence of rioting as has been defined

under Section 146 of the IPC, the members of the unlawful assembly need not carry weapons, whereas a person charged with an offence under

Section 148 of the IPC must be armed with deadly weapons. In this case the appellate court acquitted the accused of the offences punishable under

Sections 147, 149 & 326 of the IPC. There is no specific finding regarding Sections 143 and 148 of the IPC. Necessary ingredients to attract Section

141 of the IPC are not proved in this case.

It is settled law that substantial evidence is the evidence of identification in court. As a general rule, the substantive evidence of a witness is the

statement made in court. The purpose of prior test identification is to test and strengthen the trustworthiness of the evidence given before the court. It

is accordingly considered as a rule of prudence to generally look for corroboration to establish the identification of the accused. The prosecution case

itself would show that the accused 1 to 3 along with other accused identifiable by sight trespassed into PW1's house and committed the offence. In the

instant case, the evidence of PWs.1 to 3 reveals that they had not actually identified the accused before the court. Regarding the identification before

the court, a Division Bench of this Court in Vayalali Girishan & others v. State of Kerala [2016 KHC 204] held that the witnesses should specifically

point out the accused by their names or specific features to individually fix each of the accused as being present at the scene of crime so that their

complicity as members of an unlawful assembly in prosecution of the common object could be fixed. In the case on hand, no dock identification was

made that the witnesses have specifically identified the accused as the persons who were involved in the crime so that the complicity and presence of

the accused at the scene of occurrence could be fixed with exactitude. No evidence was adduced by the prosecution to prove that the accused in the

dock were identified by the witnesses in an acceptable manner. In this connection it is pertinent to note that no test identification was conducted by the

Investigating Officer during the investigation. Instead, the accused were summoned to the police station and they were shown to PWs.1 and 2.

The dagger and sticks were allegedly used by the accused to assault PWs.1 and 2. During investigation, material objects were not recovered in

accordance with law. The Doctor, who issued Exts.P3 and P4 wound certificates, was not examined before the trial court. The Doctors are medical

experts and their examination before the court is absolutely essential to prove the opinion evidence. In the case on hand, the Doctor was not examined

to prove the wound certificate.

The occurrence in this case was on 25.10.2002 at 20.30 hours. However, the First Information Report was registered on 27.10.2002 at 16 hours.

No plausible explanation was offered for the delay in lodging Ext.P1 FIS before the police. There were 7 accused along with three more unidentifiable

accused by sight are arrayed as accused Nos.1 to 10 in Ext.P2 FIR. PW1 failed to mention all the overt acts in Ext.P1 FIS. Similarly, PWs.1 and 2

failed to identify the accused before the court in an acceptable manner. Medical evidence was also not appreciated by the court below. Further, the

Investigating Officer was not examined before the trial court. Non- examination of the Investigating Officer has prejudiced the case of the accused.

Inconsistency with regard to the place of occurrence as evidenced by Ext.P5 and oral evidence of PW1 would go to show that the occurrence place

had not taken place as alleged by the prosecution. The evidence on record, both oral and documentary is totally silent about the overt acts attributed to

each of the accused which strengthens the defence case of false implication.

The next question is whether any of the accused would be personally liable for the acts committed by them with the aid of Section 34 of the IPC.

It is settled principle of law that even if the accused had not been charged with the aid of Section 34 of the IPC and instead charged with the aid of

Section 149 of the IPC, they can be convicted with the aid of Section 34 of the IPC if evidence was adduced to prove that there was common

intention to commit the crime. In the case on hand, the appellate court acquitted the accused of the offence under Section 149 of the IPC but

maintained conviction under Sections 324 and 452 of the IPC. In this case, the presence of all the accused was not established. The Doctor who

treated the injured and the Investigating Officer who recorded the statements of the witnesses during investigation were not examined. The accused

did not get an opportunity to contradict the statements of the witnesses elicited during cross-examination to the Investigating Officer. The weapon of

assault by the accused had not been recovered and produced before the court. The trial court found that the accused 1 to 3 were present at the scene

of occurrence. However, the trial court found that the presence of the accused 4 to 8 was not proved in evidence. Without proving the participation of

other accused, the trial court convicted accused Nos.1 to 3 with the assistance of Section 149 of the IPC. This is apparently unsustainable. Regarding

the presence of the accused 1 to 3, the evidence on record both oral and documentary is silent as to any overt act on the part of the accused 2 and 3.

Inconsistencies and contradictions in the evidence of PWs.1 and 2 as to the manner in which the alleged occurrence took place with reference to

Ext.P5 scene mahazar would indicate that the occurrence was not taken place as alleged by PWs.1 and 2.

Both the trial court and the appellate court erroneously appreciated the evidence on record and wrongly convicted and sentenced the accused. The

revision petitioners/accused Nos.1 to 3 are found not guilty of the offences punishable under Sections 143, 148, 324 and 452 of the IPC and

accordingly they are acquitted thereunder.

Resultantly, the criminal revision petition is allowed. The revision petitioners/accused Nos.1 to 3 are set at liberty. In case any fine amount is deposited

by the revision petitioners/accused Nos.1 to 3 during the pendency of the revision, the same shall be refunded to the revision petitioners/accused Nos.1

to 3 in accordance with law. Pending applications, if any, stand disposed of.