Crl.Rev.Pet.No.3160 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 20TH DAY OF MARCH, 2020/30TH PHALGUNA, 1941** ## **Crl.Rev.Pet.No.3160 OF 2007** **[AGAINST THE JUDGMENT IN CRA 194/2005 DATED 25-07-2007 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT NO.II(ADHOC), THRISSUR** **AGAINST THE JUDGMENT IN SC 301/2003 DATED 10-03-2005 OF ADDITIONAL SUB COURT, IRINJALAKUDA]** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED 2,3 AND 4:** - **1 SHIJIL, AGED 25 YEARS, S/O. SUBRAMANIAN, KOZHIPARAMBIL HOUSE, CHAMAKKALA, KODUNGALLUR TALUK.** - **2 SHINE, AGED 24 YEARS, S/O. JANARDHANAN, KILIKULANGARA, KOORKKUZHI, KODUNGALLUR.** - **3 SHIBIN, AGED 22 YEARS, S/O. NARAYANAN, MUNIKKUMTHARA, KOORIKUZHI, KODUNGALLUR.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM [CRIME NO.672 OF 2001 OF, MATHILAKAM POLICE STATION].** ## **SR.PUBLIC PROSECUTOR SRI.M.S.BREEZE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD** **ON 10-03-2020, THE COURT ON 20.03.2020 PASSED THE FOLLOWING:** Crl.R.P.No.3160 of 2007 :-2-: **O R D E R 'C.R.'** (Dated this the 20[th] day of March,2020) Revision petitioners are the accused Nos.2,3 and 4 respectively in S.C.No.301/2003 on the file of the court of Additional Assistant Sessions Judge, Irinjalakuda. The case was initially registered against the revision petitioners and two others as Crime No.672/2001 of the Mathilakam Police Station for the offences punishable under Sections 143,147,148,341,324, 326,307 read with 149 of the Indian Penal Code, 1860 (for short 'the IPC') and Section 27(2) of the Arms Act,1959 (for short 'the Act'). By judgment dated 10.3.2005, the learned Additional Assistant Sessions Judge convicted and sentenced the revision petitioners under various spells including Rigorous Imprisonment for 5 years each and a fine of Rs.5000/- each, in default to undergo Rigorous Imprisonment for one year more for the offence punishable under Section 326 read with Section 149 of the IPC. The above sentences were ordered to run concurrently. 2. Feeling aggrieved, the revision petitioners preferred Crl.A.No.194/2005 before the Sessions Court, Thrissur. By judgment dated 25.7.2007, the learned Additional Sessions Crl.R.P.No.3160 of 2007 :-3-: Judge, Fast Track Court-II (ADHOC), Thrissur dismissed the appeal confirming the conviction and sentence imposed by the trial court. Thus, the accused 2 to 4 are before this Court in revision. ## 3. The prosecution case in brief is as hereinbelow:- On 9.12.2001 at 1.30 p.m., at Chamakkala bus stop in Edathirithy Village, all the accused, five in number, formed themselves into an unlawful assembly, armed with deadly weapons for the purpose of rioting and in prosecution of their common object assaulted CW1 and PW8. It is alleged that when the CW1 and PW8 arrived at the scene of occurrence on a motor bike bearing Regn.No.KL8M 4200, the fifth accused had given a signal to the other accused and all the other accused rushed to the place of occurrence and wrongfully restrained CW1 and PW8 . Thereafter, the second accused cut the right wrist of CW1 with a sword after which CW1 and PW8 fell down along with the motor bike. The first accused shouted to the others to kill PW8 and on hearing that, the accused Nos.2 and 3 inflicted cut injuries on his head and left shoulder with swords, as a result of which he sustained injuries and a fracture on the skull, left shoulder bone, Crl.R.P.No.3160 of 2007 :-4-: neck and left ankle. All the other accused also had beaten PW8 all over his body. 4. Final report was filed before the Judicial First Class Magistrate, Kodungallur for the offences enumerated above against accused Nos.1 to 5. The first accused - Shibu had absconded during the committal stage. Hence, the case against him was split up by the learned Magistrate as C.P.No.34/2003 by order dated 30.5.2003. Case against accused Nos.2 to 5 was committed to the court of Sessions, Thrissur after completing the usual legal formalities. 5. The learned Sessions Judge took cognizance of the offences punishable under Sections 143,147,148,341,324, 326 and 307 r/w Section 149 of IPC and Section 27(2) of the Act as against accused Nos.2 to 5 as against accused Nos.1 to 4 in S.C.No.301/2003 and made over the case for trial and disposal to the Additional Assistant Sessions Judge, Irinjalakuda. After the trial, the learned Sessions Judge convicted and sentenced accused Nos.2 to 5 (Accused Nos.1 to 4 in the sessions case) for the offences punishable under Sections 143,147,148,341,324, 326,307 read with 149 IPC. Accused Nos.2 to 5 preferred Crl.R.P.No.3160 of 2007 :-5-: Crl.A.No.194/2005 before the Sessions Court. The learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. After the dismissal of the appeal, the second accused (the first accused in the sessions case) passed away. Hence the accused Nos.3 to 5 have preferred this Criminal Revision Petition. 6. Crl.M.A.No.2/2020 has been filed before this Court under Section 482 of Cr.P.C. by the revision petitioners to implead the victim/PW8 as additional second respondent in the Crl.R.P. Along with the impleading petition, the revision petitioners filed Crl.M.A.No.1 of 2020 to quash the conviction and sentence passed by the trial court and confirmed by the appellate court. Along with Crl.M.A.No.1 of 2020, an affidavit is submitted by the victim/PW8 in S.C.No.301/2003, who is sought to be impleaded as additional second respondent in this Crl.R.P. According to him, due to the intervention of the senior members of the society and well-wishers of both the parties, all the disputes are settled out of court and the matter has been resolved amicably. He further stated that the revision petitioners are his neighbours and they are residing in the very same locality. More Crl.R.P.No.3160 of 2007 :-6-: so, they are on cordial terms. He has no subsisting grievances against the revision petitioners. According to him, the dispute is purely private in nature and there is no public policy involved. Hence the revision petitioners seek to quash the conviction and sentence imposed against them. 7. The learned Public Prosecutor Sri.M.S.Breeze submitted that the offences alleged against the revision petitioners are noncompoundable offences as per the Scheme of the Code of Criminal Procedure and therefore, even if there is any settlement or compromise between PW8 and the revision petitioners, the conviction and sentence imposed against the revision petitioners cannot be quashed. 8. The learned counsel for the revision petitioners contended that if the dispute is private and personal and the matter is settled out of court between the parties, the High Court is competent to quash the proceedings for securing the ends of justice. Relying on the decisions in **Biju Kumar** v. **State of Kerala and another** [2013(2) KHC 569], **Renjith** v. **State of Kerala** [2019 KHC 5647] and **Bitan Sengupta and others** v. **The State of West Bengal and others** [2018(9) SCALE 249], Crl.R.P.No.3160 of 2007 :-7-: the learned counsel for the revision petitioners contended that even at the revisional stage, proceedings against an accused for committing a non-compoundable offence can be quashed invoking inherent powers of the High Court under Section 482 of Cr.P.C. 9. Heard Sri.S.Rajeev, the learned counsel for the revision petitioners and Sri.M.S.Breeze, the learned Senior Public Prosecutor for the State. 10. Although the offence is not compoundable, the power of the High Court under Section 482 of Cr.P.C. to quash the proceedings in non-compoundable offence is well recognized. In **Gian Singh** v. **State of Punjab and another** [(2012)10 SCC 303] , the Apex Court held in paragraph 53 of the judgment as follows:- “53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for Crl.R.P.No.3160 of 2007 :-8-: quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.” 11. Another three Bench of the Apex Court in **Parbatbhai Aahir @ Parbatbhai** vs **The State Of Gujarat** [(2017)9 SCC 641], after analysing the various precedents, has summarised the broad principles to exercise inherent power under Section 482 of Cr.P.C. in different ways to achieve its ultimate objective in paragraph 15 as hereunder:- “15 The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions : - i. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; - ii. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is Crl.R.P.No.3160 of 2007 ## :-9-: ## non-compoundable. - iii.In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482,the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; - iv. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court; - v. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; - vi. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; - vii. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the Crl.R.P.No.3160 of 2007 ## :-10-: inherent power to quash is concerned; - viii. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; - ix. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and - x. There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.” 12. In this case, the accused were convicted and sentenced for the offences punishable under Sections 143,147,148,341,324, 326 and 307 r/w Section 149 of IPC. Admittedly, the offence under Section 307 of IPC is a non-compoundable offence. Section 320 of Cr.P.C. states that no offence shall be compounded if it is non-compoundable under the Code. In **Iswar Singh** v. **State of M.P.** [(2008)15 SCC 667], while taking Crl.R.P.No.3160 of 2007 :-11-: into account the fact of compromise between the parties, the Apex Court held that it should not be appropriate to order compounding of an offence under Section 307 of IPC not compoundable under the Cr.P.C. ignoring and keeping aside statutory provisions. 13. In the decision reported in **Rajendra Harakchand Bhandari and others** v. **State of Maharashtra** [(2011)13 SCC 311], the Apex Court held that the offence under Section 307 is non-compoundable in terms of Section 320 (9) of Cr.P.C. and therefore, compounding of the offence is out of question. v. 14. In the decisions reported in **State of Rajasthan Shambhu Kewat and another** [(2014)4 SCC 149] and in v. **State of Madhya Pradesh Kalyan Singh and others** [(2019) 4 SCC 268], the Apex Court held that the offence under Section 307 is non-compoundable and it is not proper to quash criminal proceedings under Section 482 of the Cr.P.C. 15. In the decision reported in **Narinder Singh** vs **State Of Punjab And Ors** [(2014)6 SCC 466], it was held in paragraph 29 of the judgment as follows:- Crl.R.P.No.3160 of 2007 :-12-: “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: **29.1.** Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. **29.2.** When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: ( _i_ ) ends of justice, or ( _ii_ ) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. **29.3.** Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. **29.4.** On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. Crl.R.P.No.3160 of 2007 :-13-: **29.5.** While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. **29.6.** Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. **29.7.** While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that Crl.R.P.No.3160 of 2007 :-14-: at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” 16. Bearing in mind the above principles, this Court is of the view that the offence under Section 307 of IPC for which the revision petitioners have been convicted and sentenced concurrently by the trial court and the appellate court, are in fact offences against the society and not private in nature. Thus, this Court is not justified in quashing the conviction and sentence against the convicts on the ground of compromise between the Crl.R.P.No.3160 of 2007 :-15-: parties for the offence punishable under Section 307 of IPC. The decisions cited by the learned counsel for the revision petitioners in paragraph 8 of this judgment are either matrimonial disputes between husband and wife under Section 498A of the IPC or other offences under the IPC, which are not heinous in nature. 17. After having clarified the legal position in the manner as indicated hereinabove, this Court heard the learned counsel for the revision petitioners and the learned Public Prosecutor on merits. 18. Prosecution mainly relied on the oral evidence of PWs.1 to 14 and Exts.P1 to P10 on the prosecution side. Mos.1 to 5 were also marked as material objects. PW1,2 and 9 were examined to prove the occurrence. They turned hostile to the prosecution by denying the occurrence. PW3 was a taxi driver, who took CW1 and PW8 to the hospital immediately after the occurrence. PW4 was an attestor to Ext.P1 scene mahazar. PW5 was the Head Constable, who recorded Ext.P2 First Information Statement and registered Ext.P3 FIR. PW6 was the Village Officer, who prepared Ext.P4 sketch. PW7 examined CW1 and PW8 at the hospital and issued Exts.P5 and P6 wound certificates. PW8 Crl.R.P.No.3160 of 2007 :-16-: supported the prosecution case. He was an injured witness. PW10 was working as staff at the hospital where CW1 and PW8 were admitted. PW11 and PW12 attested Ext.P7 recovery mahazar. PW13 was an attestor to Ext.P8 mahazar prepared by the Investigating officer. PW14 questioned the witnesses, conducted the investigation and filed final report before the court. 19. It would be pertinent to analyse as to whether the offence committed by the accused would fall within the parameter of Section 307 of IPC. Going by Section 307 of IPC, the most important ingredient is the intention and knowledge. It is essential for the prosecution to establish that the intention of the accused was one of the three crimes mentioned in Section 300 of IPC. A person commits an offence under Section 307 of IPC, when his intention is to commit murder, and in pursuance of that intention, he does an act towards its commission, irrespective of the fact, whether that act is a penultimate act or not. The act must be done with such intention or knowledge or in such circumstances that, if death be caused by that act, the offence of murder will emerge. There are Crl.R.P.No.3160 of 2007 :-17-: various relevant circumstances from which the intention can be gathered (i) the nature of the weapon used (ii)the place where the injuries were inflicted (iii) the nature of injuries caused (iv) the opportunity available which the accused gets. 20. In the case at hand, Ext.P3 FIR in Crime No.672/2001 of Mathilakam Police Station was registered against the accused, four in number, for the offences punishable under Sections 341,324,307 r/w 34 of IPC. When the final report was filed before the court, one more accused was added as the fifth accused and chargesheeted under Section 143,147, 148,341,324,326 and 307 r/w 149 of IPC. Ext.P2 FIS was lodged by CW1 Satheesan, an injured witness. PW8, yet another injured witness was examined to prove the prosecution case. All other independent witnesses turned hostile to the prosecution. Ext.P2 First Information Statement was marked through the Head Constable, who registered Ext.P3 FIR. The first accused -Shibu alleged to have inflicted injury to CW1 and PW8 in the final report, had absconded during the committal stage. Case against original accused Nos.2 to 4 in the final report were committed to the court of Session. During the pendency of the appeal, the original Crl.R.P.No.3160 of 2007 :-18-: second accused (first accused in the sessions case) passed away. PW8 adduced evidence to show that the accused No.1 (Shibu) had inflicted serious injuries to PW8 on his head and thereafter, accused No.2 (Aneesh) had inflicted cut injuries above the left hand wrist of PW8 with MOs.1 and 2 swords. The allegation is that the accused Nos.3 to 5 had inflicted injuries to him with MOs.3 and 4 iron rods. When examined before the court, PW8 stated that MOs.1 and 2 were shown to him during the investigation of the case whereas MOs.3 and 4 were not shown to him. No serious incriminating evidence was let in against A3 to A5 when PW8 was examined before the court. Further, the accused were not identified before the court. The evidence tendered by PW1 does not indicate that PW8 identified the accused as the perpetrator of the crime. In a criminal trial, it is the duty of the prosecution to establish the fact that the perpetrator of the crime is before the court. To prove the identity of the accused, there is nothing in evidence to show that the accused in the dock were identified by PW8. 21. On closing the evidence of prosecution, it is the duty of the prosecution to put all the incriminating materials to the Crl.R.P.No.3160 of 2007 :-19-: accused so that the accused get a fair chance to defend themselves. Section 313 of the Cr.P.C. makes it obligatory on the part of the court to put questions to the accused for the purpose of enabling them to explain any of the circumstances appearing in the evidence against them. Needless to say that each material circumstance appearing in the evidence must be put to all the accused separately and failure to do so amounts to serious irregularity vitiating the entire trial. In this case, the original second accused (first accused in S.C.No.301/2003) alone was questioned under Section 313(1)(b) of Cr.P.C. All other accused were not questioned for the reasons better known to the trial judge. No doubt, it is recognised principle of law that where there was no examination under Section 313 of Cr.P.C. , it would certainly vitiate trial as against the accused. 22. In **Reena Hazarika** vs **The State Of Assam** [2018 KHC 6872], the Apex Court held in paragraph 16 of the judgment as follows:- “16. Section 313 Cr.P.C. , cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Crl.R.P.No.3160 of 2007 :-20-: Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b)Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C to consider the same. The mere use of the word ‘may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence,since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.” 23. In this context, a decision of the Three Bench Judgment of the Apex Court in **Shivaji Sahebrao Bobade** v. **State of Maharashtra** [(1973)2 SCC 793] is relevant. In paragraph 16 of the judgment, the Apex Court held as follows:- “16.…................It is trite law, nevertheless fundamental that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings Crl.R.P.No.3160 of 2007 :-21-: and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of Such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. ….....” 24. In the instant case, as rightly contended by the learned counsel for the revision petitioners, no independent witness has stated that on the date of occurrence, the accused Nos.3 to 5 (accused Nos.2 to 4 in the sessions case), had caused severe injuries to PW8 by assaulting him. In the above circumstances, in essence, his examination under Section 313 of the Cr.P.C. was rendered as an empty formality. Further, PW14 the investigating officer in this case recovered the material objects based on the confession statement given by the first accused in the final report while in police custody. He was not available for trial. The alleged confession made by the above first accused is not admissible as Crl.R.P.No.3160 of 2007 ## :-22-: against the other accused under Section 27 of the Evidence Act. 25. It is true that the court is competent to convict the accused with the aid of Section 149 of the IPC provided the prosecution is able to prove that one of the accused along with the other unidentified accused(5 or more persons) formed into an unlawful assembly, armed with deadly weapons for the purpose of rioting and in prosecution of their common object, committed the offence. In the case at hand, no evidence was adduced by PW8 to show that five or more persons constituted an unlawful assembly on the date of occurrence and the other requirements of the said section as to the common object of the person composing that assembly were satisfied. There is also no evidence to show that the said assembly consisted of five or more persons having one of the five specified objects as their common object. In **Suresh** v. **State of Kerala** [2006(1) KLT 78), a Division Bench of this Court held that the conviction of the accused for the offence punishable under Section 148 of IPC without a finding that the accused, who were convicted, were armed with deadly weapons, is unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with Crl.R.P.No.3160 of 2007 :-23-: the aid of Section 149 of the IPC for the mere reason that they were members of an unlawful assembly. The prosecution could not collect probable evidence to substantiate the prosecution case. There is no independent evidence to prove the unlawful assembly and the alleged recovery effected. There are material contradictions in the evidence of PW8. The medical expert, who had examined PW8, was not examined before the trial court. No evidence was adduced by the prosecution to substantiate the fact that the revision petitioners made an attempt to murder PW8, as alleged. 26. Judged by the above standards, this Court is of the view that the judgment of the trial court, as confirmed by the appellate court, is perverse and is liable to be set aside. The conviction and sentence recorded stand set aside accordingly. The bail bonds of the revision petitioners/accused 2 to 4, who were on bail, stand discharged. They are set at liberty. Crl.M.A.Nos.1 and 2 of 2020 stand closed. Crl.R.P.No.3160 of 2007 :-24-: The Criminal Revision Petition is, accordingly, allowed. Sd/- **N.ANIL KUMAR** , JUDGE MBS/