P. Valsan, S/o Kunhiraman; Babu @ Ashokan; Prakasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** ## **THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933** **Crl.Rev.Pet.No. 1049 of 2002(C)** **--------------------------------------------** **[CRL.A.NO.74/1997 OF ADDITONAL SESSIONS COURT, THALASSERY, CC.NO.694/1993 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA]** **....................** ## **PETITIONERAPPELLANTS/ACCUSED:** **------------------------------------------------------** **1. P.VALSAN, S/O. KUNHIRAMAN, CLERK, KOOTHUPARAMBA.** **2. BABU @ ASHOKAN, BUSINESS, KOOTHUPARAMBA.** **3. PRAKASAN, S/O. NANU, DRIVER, KOOTHUPARAMBA.** **BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, ADV. SRI.P.V.SURENDRANATH.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.R.P.No.1049 of 2002 ---------------------------------Dated this the 20[th ] day of October 2011** ## **O R D E R** Three accused who were convicted by J.F.C.M., Kuthuparamba for offences punishable under Secs.143, 147, 148, 341, 324 and 326 r/w Sec.149 IPC are the revision petitioners. They were sentenced to undergo R.I. for 2 years and to pay Rs.5,000/- as fine for the offence punishable under Sec. 326 IPC. Besides they were sentenced to various terms of imprisonment and fine for other offences. The appeal filed by them was dismissed by the learned Sessions Judge confirming the conviction and sentence but with a direction that substantive sentences will run concurrently. 2. The case of the prosecution is that on 3.1.1993 PW3 was travelling in UKT bus bound for Mooriyad. When the bus reached Adiyarapara at about 9.30 PM, the three Crl.R.P. No.1049 of 2002 -: 2 :- accused who are the revision petitioners herein along with five unidentified persons blocked the bus and out of the aforesaid persons three identified persons – A1 to A3 got into the bus. PW3 was sitting in one of the middle seats on the left side. Besides the revision petitioners, other members of that unlawful assembly also got into that bus and thereafter, they dragged PW3 out of the bus and from outside the bus also he was beaten by the revision petitioners herein and other members of that unlawful assembly. Thus the prosecution alleged that there was an unlawful assembly of 8 persons of whom the revision petitioners were identified and that the object of that unlawful assembly was to attack PW3 and to cause grievous hurt and other injuries on his body. Because of the serious injuries inflicted on his body with deadly weapons he became unconscious. He was removed by somebody to Government Hospital, Kuthuparamba where he was examined by the doctor (PW8). On the next day at about Crl.R.P. No.1049 of 2002 -: 3 :- noon, because his injuries were serious, he was removed to Government Hospital, Thalassery. His treatment was continued there. Ext.P2 F.I.Statement was recorded from Koothuparamba Hospital based on which Ext.P5 F.I.R. was registered. The investigation was conducted by PW12. The charge sheet was laid against these accused for the offences mentioned above. 3. PW1 to PW12 were examined and Exts.P1 to P12 were marked. Besides, MO1 series - the iron rod and wooden stick were also marked. On the side of the defence DW1 to DW5 were examined and Exts.D1 to D3 were marked. 4. It was contended by the defence that first accused was nowhere in the scene of occurrence and that he was at Iritty where the election of a Co-operative Bank was conducted and as a polling agent he was there till about 8- 8.30 PM. Thus a plea of alibi was set up by A1. 5. The learned Magistrate after elaborately Crl.R.P. No.1049 of 2002 -: 4 :- discussing the evidence adduced by the prosecution found that the evidence given by PW3, the injured supported by the medical evidence is true and acceptable. Though eye witnesses did not support the prosecution the fact that the incident took place at the time and place as spoken to by PW3 was to some extent corroborated by those witnesses as well. The plea of alibi set up by the defence was found against by the learned Magistrate since all the witnesses examined on the side of the defence were found to be highly interested and partisan and also because those witnesses chose to give evasive answers to certain relevant questions which did indicate the unreliability of those witnesses. Further, it was also found that no evidence was adduced by the defence to show that it was impossible for A1 to reach at about 9.30 PM at the place of incident which is only few kilometers away from the place where he was stated to have been present in connection with the election. As such the plea of alibi was rejected by the learned Magistrate. Crl.R.P. No.1049 of 2002 -: 5 :- Accepting the evidence given by PW3, the learned Magistrate convicted the revision petitioners for the offences as mentioned above. 6. The learned Sessions Judge after a thorough reappraisal of the evidence found that the finding entered by the learned Magistrate regarding the complicity of the petitioners is well merited. Accordingly the appeal was dismissed. 7. The learned Senior Counsel Sri.M.K.Damodaran would submit that the courts below did not approach the real point in dispute as to whether there was an unlawful assembly. The learned counsel would submit that though there is a vague statement in Ext.P2 that the petitioners and five other unidentified persons prevented the bus from proceeding further and the petitioners entered the bus there is no clear and cogent evidence to convince the court that there was an unlawful assembly. It is further submitted that there is also no evidence to show that there Crl.R.P. No.1049 of 2002 -: 6 :- was any common object for five or more persons to attack PW3. 8. The contention that there is no evidence regarding the unlawful assembly is challenged by the learned Public Prosecutor. In the chief examination of PW3, it was stated that the three aforesaid accused and five other persons prevented the bus from proceeding further. It was further stated in chief examination itself that while he was being attacked by the petitioners, the other persons who had prevented the bus as mentioned earlier also entered the bus and all those persons forcibly dragged him out of the bus and from there also he was beaten by the petitioners. During cross examination, it was further stated by PW3 : “എന� അറ�യ�� മ���പ�ര�� അറ�യ�ത അഞ�പ�ര�� ക�ട� ��റപതയ��� വല�ച�ട�” The reference was about three accused/revision petitioners as stated by him in the earlier part of the evidence. It was further stated “ബസ�ന� ��റത�നവച�ണ� ക�ട�തല�യ�� അട� നക�ണത �. എന� എട �പ�ര�� അട�ച�ട �ണ�. Crl.R.P. No.1049 of 2002 -: 7 :- അറ�യ�ത ആള�കള�� എന� നലപ��നല അട�ച�.” The reference was about five unidentified persons and three identified persons who were members of that unlawful assembly. The three identified persons are the petitioners herein. Therefore, the evidence is clear, cogent and convincing that not only the three identified persons (revision petitioners) but also five other persons who could not be identified by him attacked him. As such the contention that there was no unlawful assembly cannot be accepted at all. 9. The learned counsel for the accused would further submit that going by the evidence of PW3, it can be seen that he was unconscious after the incident and as such there was no possibility for him to tell the doctor as to who the assailants were. In Ext.P3, the wound certificate issued by the doctor (PW8) the details of the incident stated to have been spoken to by PW3 are noted. The learned counsel for the accused would submit that in evidence it was stated by PW3 that after the incident it was at about 1 Crl.R.P. No.1049 of 2002 -: 8 :- AM he could regain consciousness. But it was stated by PW3 that he had regained consciousness intermittently. So, the time spoken to by him as 1 AM cannot be annexed with undue importance; as he was lying with injuries. The contention that it was not possible for PW3 to state the brief history of the incident to the doctor or to give the names of the assailants cannot be accepted. 10. It was stated by PW3, the injured that three petitioners herein were known to him prior to the incident. It was stated by him that it was A1, Valsan who pulled him up from the seat by catching the collar-back of his shirt. It was also stated that A2 beat him with an iron rod which was of a size of half a meter and a circumference of about 3-4 inches. There were corresponding injuries on the body of PW3. As mentioned earlier PW3 has stated that other assailants also got into the bus by that time. It was asserted by him that all of them dragged him out of the bus and he was beaten by all of them including the petitioner herein. Crl.R.P. No.1049 of 2002 -: 9 :- Since he was beaten by so many persons in the manner stated above, the court cannot expect the witness to give the sequence of events with regard to the role played by each of the petitioners and also by the other assailants. The inconsistencies in the narration of the sequence of events, if any, with reference to the statement contained in the F.I.S. or in the statement recorded by the police under Sec.161 Cr.P.C. can in no way affect the credibility of PW3. It is true that the independent witnesses betrayed the prosecution. But, still the evidence given by the independent witnesses would show that there was an incident as spoken to by PW3, though they did not fully narrate the incident or the role of the accused. Learned Public Prosecutor would contend that the accused are the members of a powerful political party, nobody including the doctors would be dare enough to speak against them. When incident of this nature takes place, especially because of political animosity independent witnesses do show the Crl.R.P. No.1049 of 2002 -: 10 :- propensity to keep away from being witnesses, lest they should invite the wrath of the accused or their political party. Therefore, the fact that independent witnesses did not fully support the prosecution is no reason to discard the evidence given by PW3. 11. PW4 has in fact stated that he noticed the shouting mob in the road directly in front of the bus. Three persons among them got into the bus and one of them hit PW3 on his brow and another man caught the shirt of PW3 and pulled him up. The learned Magistrate found that PW4 made every effort to conceal the truth. The fact that the bus was prevented at the time and place was spoken to by PW5 and PW6. It was asserted by PW8, the doctor who examined PW5 at 10.30 P.M. on 03.01.1993 at Government Hospital, Kuthuparamba that PW3 had narrated as to how and where the incident had taken place. The fact that the incident took place at 09.30 P.M. on the same day – 03.01.93, when he was travelling in the bus and that the bus Crl.R.P. No.1049 of 2002 -: 11 :- was blocked at Adiyarapara and the further fact that he was beaten by the petitioner herein etc. was noted by him in Ext.P3, the wound certificate. The contention that some other persons who were having political animosity against the accused must have given such a story cannot be accepted for a moment since the doctor did examine the patient within one hour of the incident. Therefore, what was noted by PW8 in Ext.P3, wound certificate and the evidence given by PW8 with regard to the same fully corroborate the evidence given by PW3. It was noted by the Doctor that besides the injuries which were actually noted by him in the wound certificate (Ext.P3) there were numerous other injuries which could not be even counted. That would actually corroborate the evidence given by PW3 that he was beaten by the petitioner and other assailants black and blue indiscriminately and continuously. It is true that PW8, in the witness box showed every effort to support the defence presumably because he was also afraid of the Crl.R.P. No.1049 of 2002 -: 12 :- accused. However the fact remains that he himself noted the injuries and the cause of injuries in Ext.P3. That was proved. Since the allegations made by PW3, were narrated in Ext.P3 in the 'first person' the contention that those allegations/narrations must have been given by the police or other persons who took him to the hospital was also rightly turned down by the learned Magistrate. 12. There is evidence to show that PW4, the police Constable of Kuthuparamba police station went to the government hospital, Thalassery on 04.01.1993 at 03.30 P.M. and recorded Ext.P2, the First Information Statement. Ext.P4 intimation dated 04.01.1993 was signed by PW8. It was based on Ext.P2, the FIR (Ext.P5) was registered. Though an attempt was made by the defence to contend that in the FI statement, the name of the accused, Valsan was not there it was stated by PW9 that there is specific allegation to the effect that the accused, Valsan beat PW3 with an iron rod. It was also argued by the learned counsel Crl.R.P. No.1049 of 2002 -: 13 :- for the accused that the Investigating Officer has not found anything in the bus to indicate that the incident did take place. Ext.P6 is the body mahazar of the bus in which the incident happened. 13. Ext.P1 is the scene mahazar prepared by Ext.P10. The iron rod and wooden sticks which were found by the side of the road were seized by the police as per Ext.P1. In the light of the clinching and unassailable evidence given by PW3 which gets corroboration from the medical evidence as referred to above, I hold that the courts below were perfectly justified in coming to the conclusion that there was an unlawful assembly of 8 persons and among them the petitioners herein (the 3 accused) were identified and their overt acts were proved to the hilt. The evidence given by PW8 and PW11, the Doctors would prove that PW3 had sustained grievous hurt as he was beaten with iron rod, sticks etc. PW11 has stated that there was fracture on left ulna and last rib on the left side. PW3 was treated at Govt. Crl.R.P. No.1049 of 2002 -: 14 :- Hospital, Thalassery as in-patient from 4.1.93 to 30.1.93. That also shows the seriousness of the injuries inflicted on PW3 by the accused. 14. The learned counsel for the accused has cited the decision of the Apex Court in Gangadhar v. State of Orissa 2002 (8) Supreme Court 381, in support of his submission that in cases like this the possibility of false implication cannot be ruled out and so the courts should be very cautious in accepting the evidence of the injured. PW3, being the injured will not spare the real offenders and so the evidence given by the injured must be preferred to and accepted. The learned counsel would submit, relying upon the very same decision, that unless there is evidence to show that the other persons shared the common object, the conviction cannot be had with the aid of Sec.149 IPC. Here, there is convincing evidence to show that the accused and five other persons had shared the common object and all of them did participate in the attack mounted on PW3. The Crl.R.P. No.1049 of 2002 -: 15 :- Apex Court's decision in **Bhudeo Mandal and others** v. **State of Bihar** [AIR 1981 SC 1219], **State of A.P.** v. **Thakida Redy** [1998 (6) SCC 554] and **Gauda** v. **State of Mysore** [1957 KLT (SC) 25] and **Masal** v. **State of U.P. [** 1965 (1) Kerala Law Journal 226] also are not applicable to the facts of this case. There is incontrovertible evidence regarding the unlawful assembly of 8 persons of which the three petitioners were the identified members and it was pursuant to the common object of the unlawful assembly they committed rioting with the deadly weapons, wrongfully restrained and caused grievous hurt to PW3. The two courts below have analyzed the evidence meticulously and found that the prosecution could prove the offence charged against the petitioners beyond reasonable doubt. I find no reason to differ from the view taken by the courts below. The conviction is thus confirmed. 15. As stated earlier the petitioners and others indiscriminately beat PW3 that there were numerous Crl.R.P. No.1049 of 2002 -: 16 :- injuries on the body of PW3 which could not be even counted, because the injuries were numerous. The fracture of left ulna was noticed and one rib was also broken. PW3 had to undergo treatment as an inpatient in the hospital for 25 days. Therefore, the sentence awarded by the courts below is perfectly correct. In the result this Criminal Revision Petition is dismissed. **N.K.BALAKRISHNAN, JUDGE.** Jvt