Ramachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932** **Crl.Rev.Pet.No. 2906 of 2010()** **-----------------------------------------** **CRMP.608/2010 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD** **....................** ## **REVN. PETITIONER(S): PETITIONER** **---------------------------------------------------** **RAMACHANDRAN, S/O. VELAYUDHAN, KAITHAVAVU HOUSE, VANDITHJAVALAM, CHITTUR TALUK, PALAKKAD DISTRICT.** **BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE BY ADV. SRI.P.M.RAFIQ** ## **RESPONDENT(S): PETITIONERS/A9 TO 13 AND STATE** **-------------------------------------------------------------------------------** **1. C.BALAN, S/O. CHAMY, PULINKAVU, VANDITHAVALAM, PATHENCHERRY VILLAGE, CHITTUR TALUK.** **2. VIJAYAN, S/O. KITTA, KUNNATHU HOUSE, MUTHUKADU, CHITTUR TALUK.** **3. SIVAPRAKASH @ S.P., S/O. RAMAKRISHNAN, MOOTHA CHETTIKULAMBU, THURISUMUKKU, TATTAMANGALAM, CHITTUR TALUK.** **4. GHOSH, S/O. KUNJUKUTTAN, PALLATHAMPULLY, TATTAMANGALAM, CHITTUR TALUK.** **5. AJITH DEV, S/O. DAMODARAN, KALEEKKAL, MUTHALAMADA ROAD, NANNIYODE.** **6. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R6 BY PUBLIC PROSECUTOR SMT.REKHA C.NAYAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **V.K.MOHANAN,J.** **---------------------------------------------------------Crl.R.P.No. 2906 of 2010 --------------------------------------------------------Dated this the 28[th] day of February,2011** ## **O R D E R** The de facto complainant in S.C.No.465 of 2005 of the court of Additional Sessions Judge, Fast Track Court-II, Palakkad is the revision petitioner. The grievance of the petitioner is that by the impugned order in Crl.M.P.No.608 of 2010, the learned Sessions Judge allowed the said petition preferred by accused Nos.9 to 13 for a discharge under Section 227 of the Cr.P.C. 2. I have heard Sri.Vijayabhanu, learned counsel appearing for the revision petitioner and the learned Public Prosecutor. 3. Though the order impugned is shown as a common order, the learned Sessions Judge considered the merit of the prayer in Crl.M.P.No.608 of 2010 and allowed the petition filed by accused Nos.9 to 13 for a discharge. Counsel for the petitioner submitted that the findings and observations made by the learned Sessions Judge in discharging the respondents herein are not proper and correct and the ## **Crl.R.PNO.2906 of 2010** ## **:-2-:** learned Sessions Judge miserably failed in taking note of the relevant materials that are produced by the prosecution along with the charge. According to the learned counsel, CW55 in his 161 statement has stated more details regarding the conspiracy taken place prior to the date of incident i.e., on 30.7.2002. The learned counsel invited my attention to 161 statement of CW55. According to the said statement, CW55 is a member of DYFI and the sympathizer of CPI(M) and he had attended the meeting held on 21.7.2002 in the party office in which many of the persons attended the meeting and he had also mentioned the name of certain accused who allegedly attended the meeting. He had also mentioned the name of accused Nos.9 and 8 who addressed the said meeting. According to the statement of CW55, there was strong opinion among many of the members who attended the meeting, that unless Kattupadam Sundaran and Kaitharavu Sivan were finished, the party may not have existence at Vandithavalam. ## **Crl.R.PNO.2906 of 2010** ## **:-3-:** 4. I have repeatedly gone through 161 statement of CW55 and nothing is discernible from the statement that the members in the meeting have arrived into any agreement with respect to a criminal design for the purpose of finishing the persons mentioned above. It is true that CW55 has further stated that he went along with first accused in search of deceased Sivan. The further overt act mentioned by CW55 among the accused who are discharged by the Sessions Court is with respect to ninth accused. When CW55 stated about A1,A2,A3,A4,A5 who were in the jeep along with CW55, what he stated about A9 is that Except the above statement, CW55 has not stated anything against A9. It is also relevant to note that even according to the statement of CW55, the meeting was on 21.7.2002 and what all he stated is about the fact taken place near to that date. But the incident was on 30.7.2002. As indicated earlier, no plan of action is designed on that day and no such case also. **T** herefore, mere mentioning of ## **Crl.R.PNO.2906 of 2010** ## **:-4-:** name of A9 and A11 are not sufficient to proceed against A9 to A13 including A9 and A11 for the offence under Section 120B of I.P.C. The further statements are based upon his hearsay information. The learned Sessions Judge, after considering the statement of Cws.53 and 55 came to a conclusion that except the presence of accused Nos.9 to 13 in two open meetings held by some of the other accused, who are said to be the leaders of one of the political factions and the provocative words allegedly uttered by some accused persons to annihilate the victim, there are absolutely no materials to show that accused conspired with the remaining accused with the unity of will and were consenting parties to any such conspiracy. The learned Sessions Judge further held that mere knowledge, even discussion of the plan for the commission of offence would not per se constitute conspiracy. After consideration of the decision of this Court reported in v. **Vijayachandran.K.K. Superintendent of Police** (2008(3) KHC 85), the learned Sessions Judge is of the opinion that the materials ## **Crl.R.PNO.2906 of 2010** ## **:-5-:** produced by the prosecution against accused Nos.9 to 13 are not sufficient to show that there was meeting of two or more persons in a particular manner to a criminal conspiracy. 5. In this juncture, it is relevant to note that according to the prosecution, there are 13 accused in the incident which had taken place on 30.7.2002 in which the offences alleged agianst them are under Sections 143,147,148,307,302,114 and 120B read with Section 149 I.P.C. and Section 25 (1)(b) of the Indian Arms Act. The learned Sessions Judge, after a careful scrutiny of the materials made available by the prosecution along with the charge, found that there are sufficient materials and grounds to proceed against accused Nos.1 to 8 and accordingly, those accused were not discharged. By applying the same judicial mind, the learned Sessions Judge, on perusal of the same materials, has categorically found that there is no sufficient ground to proceed against accused Nos.9 to 13 and accordingly, they are discharged under Section 227 of Cr.P.C. In the light of the facts and ## **Crl.R.PNO.2906 of 2010** ## **:-6-:** circumstances indicated above and particularly on a perusal of 161 statement of CW55, I am of the view that the learned Sessions Judge is perfectly correct and legal in discharging accused Nos.9 to 13. In the result, there is no merit in the revision petition and accordingly, the same is dismissed. **V.K.MOHANAN, Judge.** MBS/ ## **Crl.R.PNO.2906 of 2010** **:-7-:**