P. Rajan @ Karatta Rajan and M. Kanaka Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **SATURDAY, THE 1ST DAY OF DECEMBER 2012/10TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 945 of 2002 ( ) ------------------------------SC.176/1995 of SESSIONS COURT,THALASSERY CRA.112/1997 of SESSIONS COURT,THALASSERY** **REVISION PETITIONER(S)/APPELLANT/ 2ND AND 3RD ACCUSED:** **-----------------------------------------------------** **1. P.RAJAN @ KARATTA RAJAN,** **S/O. KRISHNAN, AMBILAD, KUTHUPARAMBA.** **2. M.KANAKA RAJAN, S/O. DASAN,** **AMBILAD, KUTHUPARAMBA.** **BY ADV. SRI.P.S.SREEDHARAN PILLAI** **RESPONDENT/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM (COMPLAINT BY FOOD INSPECTOR MARAYOOR PANCHAYATH, MALAPPURAM CIRCLE)** **BY ADV. SRI. BIJU MEENATTOOR - PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------Crl.R.P. No. 945 of 2002 ---------------------------------------------Dated this the 1[st] day of December, 2012 ## **ORDER** The petitioners are the accused in Sessions Case No.176/1995 before the Additional Assistant Sessions Judge, Thalassery. They were prosecuted for offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the Indian Penal Code. The prosecution case as stated in paragraph 2 of the judgment of the Assistant Sessions Judge is as follows: “On 12.4.94 at or about 14.30 hours all the four accused persons along with unidentified persons being motivated due to the political enmity in furtherance of their common object being members of an unlawful assembly committed rioting in the courtyard of the Hotel New Westend, Thalssery armed with deadly weapons like Koduval and sword and with intent to commit murder of CW2 Anirudhan. A2 Rajan and A3 Kanakarajan voluntarily caused hurt to CW2 Anirudhan by stabbing him with dagger and koduval as a result of which the said Anirudhan sustained grievous hurt and thereby all the accused persons have attempted to commit murder and thereby committed the aforesaid offences.” 2. The prosecution examined PWs 1 to 11 and marked Exts.P1 to P9 documents as well as MOs 1 to 5. The petitioners Crl.R.P.No.945/02 2 did not adduce any defence evidence. After considering the evidence adduced by the prosecution, the Assistant Sessions Judge found the petitioners guilty of offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the Indian Penal Code. Accused Nos. 1 and 4 were found not guilty. The 5[th] accused had already been deleted from the array of the accused by the prosecution themselves. The Additional Assistant Sessions Judge sentenced the petitioners as follows: “Accused 2 and 3 are sentenced to undergo R.I. for 3 months u/s 143 IPC, which will be sufficient to meet the offence u/s 147 IPC also and R.I. for 5 years each and to pay a fine of Rs.5,000/- each in default simple imprisonment for one year u/s 307 IPC r/w 149 IPC. No separate sentence is awarded for the offence u/ss. 324 and 326 IPC. Fine amount if paid will be given to PW1 as compensation u/s 357 Cr.P.C. Sentences shal run concurrently. Set off allowed u/s 428 Cr.P.C.” The petitioners filed Criminal Appeal No.112/1997 before the Sessions Court, Thalassery. The Sessions Court dismissed the appeal confirming the conviction and sentence passed by the Additional Assistant Sessions judge. The petitioners are challenging the judgments of the courts below. 3. The contention of the petitioners is that there is no reliable evidence on record to find the petitioners guilty of the offences charged against them. The petitioners do not dispute Crl.R.P.No.945/02 3 the incident of attack against PW1. Their only case is that they are not the persons responsible. According to them, apart from the interested testimony of PW1, there is no other reliable evidence to connect the petitioners with the crime. The evidence of PW1 is suspect. First of all, when PW1 was taken to the hospital, his first reaction regarding the assailants is that five identifiable persons attacked him with a sword and chopper. That would go to show that at that time PW1 was not aware of the names of the assailants. But, in the F.I. Statement given by PW2, the names of five persons have been mentioned. The prosecution themselves deleted the 5[th] accused from the array of accused. There was no evidence regarding the involvement of A1 and A4. In the above circumstances, the evidence of PW1 to the effect that the petitioners were the assailants, cannot be believed at all. The learned counsel for the petitioners relies on the decision of the Supreme Court in _**Devinder**_ v. _**State of Hariyana**_ [1996(2) Supreme Court Criminal 331]. The learned counsel for the petitioners submits that the evidence of PW1 should be appreciated in the background of the dispute. Admittedly, there is political rivalry, which is the alleged motive attributed Crl.R.P.No.945/02 4 by the prosecution themselves. PW1 is a known criminal. He, himself, admitted that he has been involved in many criminal cases. In that background, it is not beyond comprehension that PW1 would give false evidence to implicate the petitioners, who are admittedly in the opposite camp in the political rivalry. Therefore, the identification by PW1, of the petitioners, as the assailants cannot be believed at all is the contention. It is also submitted that recovery of the alleged weapons used namely, MO1 and MO2 under Section 27 of the Indian Evidence Act itself is very much suspect. The presence of the mahazar witness namely, PW5 at the place of recovery has not been explained at all. According to the petitioners, going by his evidence, he was going to Thalassery through Poyyeri and he admitted that to go to Thalassery through Poyyeri, it is not necessary to come to Thalassery. Therefore, his presence at the place of recovery is totally suspect. As such, his evidence cannot be believed at all. Therefore, the recovery under Section 27 falls to ground. These are the only two evidences relied upon by the prosecution to prove the alleged offences against the petitioners. Once the evidence of PW1 and PW5 are not believable, then there is no evidence to 5 Crl.R.P.No.945/02 connect the petitioners with the offences alleged, is the contention of the learned counsel for the petitioners. He raises a further contention that here, the ingredients of Section 149 have not been proved by the prosecution. According to the petitioners, the court charge is that the petitioners along with two others and one unidentified person have constituted an unlawful assembly for committing the offences alleged. The court found that there is no evidence regarding the involvement of A1 and A4. As such, going by the court charge, five persons required for constituting a unlawful assembly under Section 141 of the Indian Penal Code, is clearly absent. Therefore, Section 149 could not have been invoked to punish the petitioners under Section 149, is the contention raised. On these contentions, the learned counsel for the petitioners seeks acquittal of the petitioners. 4. In answer to that, the learned Public Prosecutor would contend that the evidence of both PWs 1 and 5 are cogent and convincing and the petitioners could not discredit their evidence in any manner. He submits that the mere fact that either PW1 did not mention the names of the petitioners to the doctor or the doctor has not recorded those names, will Crl.R.P.No.945/02 6 not in any way discredit the evidence of PW1, insofar as it is clearly in evidence that PW2 had, on the very same day of the incident, filed F.I. Statement, in which, he has specifically stated that PW1 had told him on the way to the hospital that five persons including the petitioners had attacked him. This contemporaneous document would show that the failure of PW1 to mention the names of the petitioners to the doctor or the failure of the doctor to record the names is of no consequence. It is pointed out that in this respect, the decision of _**Devinder's case**_ (supra) is not applicable, whereas the Supreme Court had, in the decision of _**Pattipati Venkaiah**_ v. _**State of Andhra Pradesh**_ [AIR 1985 SC 1715] held that a doctor is not all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person and his primary effort is to save the life of the person brought to him and to inform the police in medico-legal cases. Therefore, the fact that PW1 did not mention the names of the persons to the doctor or the doctor had not recorded those names is of no consequence, insofar as the evidence available would prove the involvement of the petitioners in the crime. Further it is pointed out that PW2, who gave F.I. Statement, Crl.R.P.No.945/02 7 has given evidence to the effect that on the way to the hospital, PW1 himself had told him the names of the assailants, which have been included in the F.I. Statement, which would prove beyond doubt that on the very same day on the way to the hospital, PW1 himself had given the names of assailants and therefore, failure to mention the names of the petitioners to the doctor is of no consequence. Regarding the validity of the recovery under Section 27 of the Indian Evidence Act, it is submitted that PW5 had signed the mahazar and he has given evidence in support of the mahazar. PW9, the investigating officer has also given evidence in support of the recovery. That being so, there is no reason to doubt the validity of the recovery, is the contention raised. According to the learned Public Prosecutor, in evidence, it has come out that there were altogether eight assailants and therefore, even if the other three persons mentioned in the charge sheet have not been identified, there would still be five persons so as to rope in Section 149 as well against the petitioners. He submits that, even otherwise, since specific overt acts have been proved against the petitioners that becomes irrelevant, insofar as they were not included not merely under Section 149 but on 8 Crl.R.P.No.945/02 the basis of the overt acts proved against them as well. 5. I have considered the rival contentions in detail. 6. I am of opinion that on the evidence available, the petitioners have to fail. Of course, in the wound certificate, the doctor has mentioned that, as per the statement of PW1, five identifiable persons had attacked him. It could also be that the doctor has failed to record the names given by PW1, in the wound certificate. The fact that PW1 did not mention the names of the petitioners to the doctor is not of much significance to him. This position has been clearly stated by the Supreme Court in paragraph 17 in _**Venkaiah's case**_ (supra), which reads thus: “Another argument advanced before us was that although PWs 1 and 2 were supposed to be eyewitnesses, they never cared to disclose the name of the assailants to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.” Crl.R.P.No.945/02 9 In fact, laymen do not know that the names of the assailants can be recorded in the wound certificate, or that if they state such names the doctor will record the same so. Only persons associated with medico-legal cases would know that. Therefore, if other evidence is available regarding the identification of the persons by the injured, that would be sufficient in the circumstances. Here, PW2 was with PW1 at the time when eight persons together attacked PW1, out of whom the petitioners were the actual assailants. He gave evidence to the effect that while he was taking PW1 to the hospital, PW1 had specifically mentioned the names of the persons, who attacked him, which have been included in the first information statement. Between the wound certificate and first information statement, there is not much difference in time. PWs 1 and 2 have been elaborately cross examined by the petitioners also. But, their evidence in this regard could not be discredited to any extent. In such circumstances, the absence of the names of the petitioners in the wound certificate pales into insignificance **.** Therefore, the nonmentioning of the names of the petitioners to the doctor or non-recording of the same in the wound certificate will not Crl.R.P.No.945/02 10 come to the assistance of the petitioners to prove their innocence. 7. PWs 1 and 2 have given cogent and satisfactory evidence to prove the guilt of the petitioners. As I have already stated, they have been cross examined elaborately and their evidence could not be shaken to any extent by the petitioners. Of course, PW2 does not identify the petitioners as the persons, who committed the overt acts against PW1. According to me, that would only add to the truthfulness of his evidence. If he was telling lies, he could have very well identified the petitioners among the accused in court. He did not do so. He candidly stated that he is unable to identify the assailants from the accused persons in the dock. But, PW1 has given categoric and specific evidence that the petitioners were the persons, who actually committed the overt acts resulting in injuries to him. The facts that he is involved in criminal cases or that the motive alleged itself is political rivalry, are not sufficient to discredit the evidence of PW1. Insofar as the evidence of PW1 specifically proves the involvement of the petitioners in the crime, notwithstanding the fact that he is the injured, I do not find any infirmity in the appreciation of 11 Crl.R.P.No.945/02 evidence by the courts below to convict the petitioners. 8. I am also not satisfied that because of the reasons mentioned by the petitioners, the recovery under Section 27 of the Indian Evidence Act should be held to be suspect. The investigating officer has given evidence that on the basis of the confession made by the first petitioner, the petitioners were taken to the place where the weapons were discarded and in the presence of witnesses and the petitioners, MO1 and MO2, material objects were recovered. PW5, who was the mahazar witness, has given evidence in support of the recovery as well. Perhaps if the petitioners had demolished the evidence of PW9, the investigating officer in cross examination, the reasons now put forward may have come to their assistance. But, they sadly failed to do so. Therefore, I do not find any merit in the attempt against the validity of the recovery under Section 27 of the Indian Evidence Act as well. 9. But, I find merit in the contention of the learned counsel for the petitioners that here, Section 149 is not attracted to the petitioners. As rightly pointed out, the charge specifically mentions only four identified persons and one unidentified person, which adds upto only five persons. The Crl.R.P.No.945/02 12 charge does not say that there were other unidentified persons as well. Therefore, once three persons, out of the five are deleted from the array of accused, then there are only two persons, who would not constitute an unlawful assembly as defined under Section 141 of the Indian Penal Code. Consequently, the petitioners could not have been convicted for the offence punishable under Section 149 and the offences alleged to have been committed by the unlawful assembly. Therefore, the petitioners are acquitted of the offences under Section 143, 147, 148 read with Section 149 of the Indian Penal Code. But, I find that, although the petitioners were convicted for the offences punishable under Section 307, the petitioners were not separately awarded sentences for offences punishable under Sections 324 and 326 of the Indian Penal Code. 10. In the above circumstances, the petitioners are sentenced as follows: The conviction of the petitioners under Sections 324, 326 and 307 of the Indian Penal Code are confirmed. The petitioners are sentenced to simple imprisonment for one year under Section 307 of the IPC. The petitioners are sentenced to Crl.R.P.No.945/02 13 undergo rigorous imprisonment for three months and rigorous imprisonment for one year under Sections 324 and 326 respectively. Set off is allowed under Section 428 of the Cr.P.C.. The sentences shall run concurrently. The Cr.R.P. is disposed of as above. ## **S. SIRI JAGAN, JUDGE** acd Crl.R.P.No.945/02 14 According to the learned Public Prosecutor, in evidence it has come out that there were