K. Manoharan and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934** ## **Crl.Rev.Pet.No. 30 of 2008 ( )** **---------------------------------------CRA.16/2002 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.221/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT KUTHUPARAMBA** **..........** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED NO.1 TO 8:** **----------------------------------------------------------------------------------------** **1. K.MANOHARAN, S/O. DAMU, AGED 40 YEARS, KOLAYAD AMSOM, KOOTHUPARAMBA, KANNUR.** **2. PREMAN, S/O. KUNHIKRISHNAN, AGED 38, KOLAYAD AMSOM, KOOTHUPARAMBA KANNUR.** **3. PREMAN, S/O. NANU, AGED 36, KOLAYAD AMSOM, KOOTHUPARAMBA, KANNUR.** **4. MOHANAN, S/O. KRISHNAN, AGED 40, KOLAYAD AMSOM, KOOTHUPARAMBA, KANNUR.** **5. M.MOHANAN, S/O. GOVINDAN, AGED 40, KOLAYAD AMSOM, KOOTHUPARAMBA, KANNUR.** **6. GANGADHARAN, S/O. CHATHU, AGED 40, KOLAYAD AMSOM, KOOTHUPARAMBA, KANNUR.** **7. T.SUDHAKARAN, S/O. KUMARAN, AGED 38, KOLAYAD AMSOM, KOOTHUPARAMBA KANNUR.** **8. GOVINDAN, S/O. KANNAN, AGED 46, KOLAYAD AMSOM, KOOTHUPARAMBA, KANNUR.** - **BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** ## **CRRP. NO.30/2008** ## **RESPONDENT/ RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.30 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of September, 2012** ## **O R D E R** The accused, 8 in number, in C.C. No.221/1998 before the Judicial First Class Magistrate's Court, Kuthuparamba are the petitioners in this Criminal Revision Petition. They were tried for offences under Sections 143, 147, 148, 341, 323, 324 r/w 149 IPC. The prosecution case against them was that they formed an unlawful assembly in Kolayad amsom and desom and committed the offence of rioting with deadly weapons and wrongfully restrained Cws 1 to 5 and in prosecution of the common object of the said unlawful assembly the accused due to political enmity voluntarily caused simple hurt to Cws 1 to 5 by beating them with an iron rod and with hands. After trial, the Magistrate convicted the accused for offences under Sections 143, 147, 148, 341, 323 & 324 r/w Section 149 of IPC. For offence under Section 143 r/w Section 149 IPC, Crl. Rev. Petition No.30 of 2008 **-2-** the petitioners were sentenced to undergo simple imprisonment for one month, for offence under Section 147 r/w Section 149 IPC, the petitioners were sentenced to undergo simple imprisonment for three months, for offence under Section 148 r/w Section 149 IPC, the petitioners were sentenced to undergo simple imprisonment for three months and for offence u/s 341 r/w 149 IPC, the petitioners were sentenced to undergo simple imprisonment for 15 days, for offence under Section 323 r/w Section 149 IPC, the petitioners were sentenced to undergo simple imprisonment for two months and for the offence under Section 324 r/w Section 149 IPC, they were sentenced to undergo simple imprisonment for four months. The sentences were to run concurrently. The accused were entitled to set off if any. The petitioners filed Crl. Appeal No.16/2002 before the Sessions Court, Thalassery, who confirmed the conviction but modified the sentence of imprisonment to one till rising of the court and imposed fine for the different offences varying from Rs.500/- to Crl. Rev. Petition No.30 of 2008 **-3-** Rs.2,000/-. The petitioners are challenging the judgments of the courts below. 2. The contention of the petitioners is that the prosecution has not succeeded in proving the case against them with any amount of certainty. They would point out that the witnesses, who are the injured did not even identify them in the dock. It is further pointed out that the Magistrate himself noticed serious discrepancies in the evidence of these witnesses but brushed aside them as minor inconsistencies, which are negligible. According to the learned counsel for the petitioners, the inconsistencies were not minor but very substantial which go to the root of the prosecution case itself. The question as to whether a conviction can be without the witnesses identifying the accused in the dock, the petitioners rely on the decision of this Court in **Mohammed v. State of Kerala [2002 KHC 969]** . Therefore, according to the petitioners, the prosecution has not proved the guilt against the petitioners beyond a reasonable doubt and in any event they are Crl. Rev. Petition No.30 of 2008 **-4-** entitled to the benefit of doubt in the absence of clear identification of the accused by the witnesses. 3. The learned Public Prosecutor would contend that it is not necessary that all the witnesses should identify the accused in the dock. If some of them or even one of them identifies them in the dock that may be sufficient. It is contended that PW4 had categorically stated that all the persons standing in the box were in the road at the time of occurrence, which according to the learned Public Prosecutor would be sufficient identification of the accused. The Public Prosecutor would say that the inconsistencies pointed out by the counsel for the revision petitioners are minor which does not seriously affect the prosecution case. 4. I have considered the rival contentions in detail. 5. In **Mohammed** 's case (supra), a learned Judge of this Court has examined the question as to whether there can be a successful prosecution when the witnesses do not identify the accused in the dock specifically pointing out that the persons standing in the dock are the accused. In Crl. Rev. Petition No.30 of 2008 **-5-** this case, none of the witnesses had specifically identified any of the accused as the persons who assaulted them. Of course, as pointed out by the learned Public Prosecutor, the 4[th] respondent had stated that the accused standing in the box were present in the road. I am not satisfied that, that would amount to identification of the accused in the box. I am of opinion that going by the decision in the **Mohammed** 's case, the witnesses should identify the accused specifically by name as such pointing out each person standing in the box. The prosecution has not made any attempt in that regard going by the deposition of witnesses before the Magistrate. In addition, I find that there are serious inconsistencies in the evidence of the injured witnesses. One witness said that there were 8 assailants. Another witness said that there were 25 and still another witness stated that there were about 50 people. In the matter of occurrence of the incident also there was serious inconsistencies. I am not satisfied that the accused can be convicted on the basis of that evidence, that too Crl. Rev. Petition No.30 of 2008 **-6-** without proper identification of the accused in the box. Therefore, I am of opinion that the petitioners are entitled to benefit of doubt in this case. Accordingly, the judgments of the courts below are set aside giving the accused the benefit of doubt. The accused are acquitted of the offence charged against them by the learned Judicial First Class Magistrate's Court, Kuthuparamba. Their bail bonds are cancelled. The criminal revision petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/