P. Jayarajan s/o Kunhiraman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941** **Crl.Rev.Pet.No.923 OF 2001** **AGAINST THE ORDER/JUDGMENT IN CRA 118/1997 DATED 25-07-2001 OF ADDITIONAL SESSIONS COURT ,THALASSERY** **AGAINST THE ORDER/JUDGMENT IN CC 629/1994 DATED 09-04-1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS,KUTHUPARAMBA** ## **REVISION PETITIONER:** **P.JAYARAJAN S/O KUNHIRAMAN, PATTIAM, THALASSERY** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.E.C.BINEESH SRI.C.K.SAJEEV SRI.P.V.SURENDRANATH (SR.) SRI.N.K.SHYJU SMT.R.SANGHESWARY SRI.P.K.VARGHESE** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682031** **R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R1 BY SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR.** **OTHER PRESENT:** ## **SR.PP MR.S U NAZAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-02-2020, THE COURT ON 12-02-2020 PASSED THE FOLLOWING:** Crl.R.P.923 of 2001 :-2-: ## **O R D E R** ## **(Dated this the 12[th] day of February, 2020)** This Criminal Revision petition is filed by the revision petitioner/the first accused challenging the conviction and sentence passed by the Judicial First Class Magistrate Court, Kuthuparamba in C.C.No.629/1994, which is confirmed in Crl.A.No.118/1997 of the Sessions Court, Thalasserry, with modification. 2. The petitioner was convicted under Sections 143, 148,447,353 and 427 r/w.149 of IPC and 3(2)(e) of the Prevention of Damage to Public Property Act,1984 (hereinafter referred to as 'the PDPP Act') and sentenced to undergo rigorous imprisonment for one month each u/Ss.143 and 447 r/w S.149 of IPC, rigorous imprisonment for six months each u/Ss.148 and 353 r/w. S.149 IPC, rigorous imprisonment for three months under S.427 r/w S.149 IPC , rigorous imprisonment for one year u/S.3(2)(e) of the PDPP Act r/w S.149 IPC. In addition to the Crl.R.P.923 of 2001 :-3-: above, the 1[st] accused was directed to pay an amount of Rs.15,000/- as compensation to the Government of India and in default, to undergo rigorous imprisonment for six months u/s.357(3) of Cr.PC. That apart, he was directed to pay an amount of Rs.1000/- each as compensation to PWs.1 and 2 and in default, to undergo rigorous imprisonment for two weeks each. Total period of imprisonment to be undergone comes to two years and five months. The above sentences were ordered to run consecutively. 3. In appeal, the appellate court modified the sentence holding that the substantive sentences imposed by the trial court should run concurrently. In all other respects, the appellate court confirmed the findings of the trial court. 4. The prosecution case in brief is as herein below:- On 09.12.1991, at about 10.30 am, the accused P.Jayarajan and 16 others along with 350 unidentified persons formed themselves into an unlawful assembly, armed with Crl.R.P.923 of 2001 :-4-: dangerous weapons, and criminally trespassed to the Post Office and Telephone Exchange Building at Kuthuparamba and in prosecution of their common object, they pushed aside the policemen on duty at the main gate of the compound, entered therein, shattered the glass panels of the aforesaid buildings and the adjoining quarters by hurling brickbats and beating with sticks. As a result of which, the Central Government sustained damage for an amount of Rs.10,000/-. It is alleged that these atrocities were done by the accused with an intention to make the _bandh_ declared by the Left Democratic Front successful on 09.12.1991. 5. Heard the learned senior counsel for the petitioner Sri.B. Raman Pillai and the learned Senior Public Prosecutor, Sri.S.U.Nazar, for the State. 6. PWs.1 and 2 are the occurrence witnesses in this case. Immediately after the occurrence, PW1 identified and arrested accused Nos.2 to 4 and produced them before the Crl.R.P.923 of 2001 :-5-: Kuthuparamba Police Station. When they were examined before court, no explanation was offered by them as to why the first accused was not arrested along with accused Nos.2 to 4 from the occurrence place. At the time of trial, PWs.1 and 2 failed to identify accused Nos.2 to 4 before the court. Ultimately they were acquitted. The learned Magistrate tried a total of 17 accused and after the trial, the first accused alone was convicted. They learned Magistrate acquitted 16 of the aforesaid accused and convicted the first accused mainly relying on the oral evidence of PW1. On a perusal of the oral evidence tendered by PW2, it is brought out that he did not identify the first accused. 7. The main allegation against the first accused is that he was leading the procession of nearly 350 persons on the date of occurrence in connection with the bandh declared by the Communist Party of India (Marxist). PW1 identified the first accused before court. However, PW2 failed to identify the first accused during trial. No attempt was made by the prosecution to Crl.R.P.923 of 2001 :-6-: get him identified. In view of the above facts, the only evidence against the first accused is that of PW1 alone, as a single eye witness, who testified that the first accused was leading a procession consisting of 350 persons in connection with the bandh through the public road. 8. PWs.6 to 11 are Officers of Post and Telegraph Department. They stated that they saw 30-40 persons entering into post office compound for committing illegal action. However, they totally failed to identify any of the accused. One of the main allegations against the revision petitioner is that he was one of the members of the unlawful assembly. Section 141 of IPC defines unlawful assembly to be an assembly of five or more persons. There must have a common object inter alia to commit any mischief or criminal trespass or other offence. Section 143 of the IPC provides for punishment of being a member of unlawful assembly. Section 149 provides for constructive liability on every person of an unlawful assembly, if Crl.R.P.923 of 2001 :-7-: an offence is committed by any member thereof in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. Whether an assembly is unlawful one or not, thus, would depend on various factors. The principle among them being a common object formed by the members thereof to commit an offence specified in one or other classes contained in Section 141 of IPC. If as a matter of fact, the petitioner was a member of the unlawful assembly, he must be present in the unlawful assembly and must have been seen by the witnesses and have been identified. Since PWs.6 to 11 failed to identify any of the accused, a corresponding duty was cast on the prosecution to declare the above witnesses as hostile to the prosecution. Strange as it may sound, none of them was declared as hostile by the prosecution and no explanation was offered for their failure to identify the accused. 9. PW14, in his evidence stated that the procession to Crl.R.P.923 of 2001 :-8-: make the bandh successful was followed by police personnel, driving in a jeep. The circumstances warranting to follow the procession by police personnel have not been explained by the prosecution. PW14 has no case that the members of the unlawful assembly were armed with deadly weapons for the purpose of rioting. The police personnel following the procession in a jeep and the policemen who reached the spot by way of reinforcement were not examined by the prosecution. 10. It is well settled proposition of law that an assembly of more than five persons, the common object of which is maintaining their rightful possession, is not an unlawful assembly. There is no evidence in this case to show that the first accused led a violent mob as a procession on the date of occurrence. The prosecution failed to disclose as to how the procession turned unlawful on the date of occurrence. There is no case for the prosecution that the first accused was armed with deadly weapons. In an offence u/s.148 of the IPC, the Crl.R.P.923 of 2001 :-9-: ingredients of the offence of rioting must be present. If in an unlawful assembly, only one accused is armed with deadly weapons or one as envisaged in Sec.148 of IPC, he alone is liable to be convicted u/s.148 of IPC. In this case, the prosecution has no case that the first accused was armed with deadly weapons to attract Section 148 of IPC. 11. Even though 17 accused persons were chargesheeted by the court below, the revision petitioner alone was convicted and sentenced. The State did not file appeal against the acquittal of the above persons. PW1, who arrested accused Nos.2 to 4, failed to identify them at the time of trial. His evidence was not challenged by the prosecution nor did the prosecution declare them as hostile to the prosecution. Among the 350 persons, who constituted the unlawful assembly, 17 accused persons were chargesheeted and all others remained unidentifiable. It is not the case of the prosecution that apart from the aforesaid 17 accused persons, there were some other unidentified persons, Crl.R.P.923 of 2001 :-10-: who were involved in the crime of forming an unlawful assembly. The prosecution has no case that the other accused, who were chargesheeted, except the first accused had been identified during trial. When all other accused, except the first accused were acquitted, acquittal of other accused reduces the number of participants in the unlawful assembly to less than five. Under the circumstances, the first accused cannot be convicted u/S.148 IPC and on applying Section 149 of IPC, unless it is proved that along with the first accused, four more unidentified accused were members of the unlawful assembly. There is no such evidence in this case. Where 16 accused persons out of 17 were acquitted, the conviction of the revision petitioner alone is improper in the absence of specific finding that some unidentified persons not less than five had formed an unlawful assembly along with the revision petitioner participated in the occurrence and committed the offences alleged. In fact, the petitioner was convicted with the aid of Section 149 of IPC Crl.R.P.923 of 2001 :-11-: without proving unlawful assembly. 12. As indicated earlier, there is no evidence in this case to hold that the accused was armed with deadly weapon to commit the offences alleged. 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 was convicted, was armed with deadly weapon, is unsustainable. In other words, an accused not armed with deadly weapon cannot be convicted under Section 148 of IPC with the aid of Section 149 of IPC for the mere reason that they were members of an unlawful assembly. In this case, unlawful assembly also is not proved. 13. The trial court as well as the appellate court concurred with the finding that the revision petitioner destroyed public property as defined under the PDPP Act and imposed punishment under Section 3(2)(e) of the PDPP Act. Although PWs.6 to 11 were examined to prove the damages sustained to Crl.R.P.923 of 2001 :-12-: the Post and Telegraph Offices, they did not adduce evidence touching the quantum of damages sustained to the Department. The prosecution mainly relied on Ext.P2 mahazar prepared by the Police. However, Ext.P2 mahazar does not state about the actual damages or materials to assess the damages. Going by the evidence of PWs.1 and 2, it is clear that the Police Station is about 70 yards from the place of occurrence. PWs.1 and 2 and other prosecution witnesses testified that any person standing in the Police Station can have a clear version, if anything happened in front of the place of occurrence. PWs.1 and 2 have no case that accused Nos.2 to 4 resisted the arrest when they were apprehended from the scene of occurrence. No independent witnesses were examined to prove the occurrence. The only evidence against the revision petitioner is that of PW1 alone. PW1 stated that he arrested accused Nos.2 to 4 from the spot. He correctly identified the revision petitioner, however, he did not identify accused Nos.2 to 4 though they were physically Crl.R.P.923 of 2001 :-13-: present before court. Under the circumstances, the evidence tendered by PW1 is not sufficient to convict and sentence the accused for the offences alleged against him. Apart from a bald statement that the revision petitioner is leading a procession of about 350 persons, in connection with the bandh declared on that day, no specific overt act is attributed against him for having pelted stones and beaten the glass panels with stick. 14. The object of the provisions of Criminal Revision Petition is to set right a patent defect or an error of jurisdiction or law. On a perusal of the entire evidence and records in this case, this Court is of the view that the trial court as well as the appellate court considered the evidence in this case erroneously. 15. Since the decision under challenge is grossly erroneous and the finding recorded is based on no evidence, revisional jurisdiction can be invoked. The revision petitioner is entitled to get the benefit of doubt. Crl.R.P.923 of 2001 :-14-: In the result, the Criminal Revision Petition is allowed. The conviction and sentence imposed by the trial court and confirmed by the appellate court with modification stand set aside. The accused is acquitted accordingly. Cancelling his bail bond, this Court directs that he be set at liberty. sd/- **N.ANIL KUMAR, JUDGE** MBS/