Sreejith and others v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 1ST DAY OF DECEMBER 2012/10TH AGRAHAYANA 1934 Crl.Rev.Pet.No. 2344 of 2006 ( ) -------------------------------CRA.210/2000 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY CC.550/1998 of ADDL.C.J.M.,THALASSERY REVISION PETITIONER(S)/PETITIONERS/APPELLANTS/ACCUSED: ----------------------------------------------------- 1. SREEJITH, S/O. SREEDHARAN, - KADIRUR AMSOM, THALASSERY. 2. MOHANAN, S/O. KRISHNAN, KADIRUR AMSOM, THALASSERY. 3. PRAMOD, S/O. SREEDHARAN, - KADIRUR AMSOM, THALASSERY. 4. BABU, S/O. KRISHNAN, - KADIRUR AMSOM, THALASSERY. 5. RAJOOTTY, S/O. DAMU, KADIRUR AMSOM, THALASSERY. 6. SANTHOSH, S/O. NANU, KADIRUR AMSOM, THALASSERY. 7. SURENDRAN, S/O. CHATHUKUTTY, - KADIRUR AMSOM, THALASSERY. BY ADVS.SRI.P.V.SURENDRANATH SRI.V.A.ABDUL JALEEL COMPLAINANT(S)/RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. V.H. HASMINE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. **Crl.R.P. No. 2344 of 2006** .................................................. ## Dated: 01-12-2012 ## ORDER Seven accused persons who were concurrently held guilty and convicted of the offences punishable under Sections 143, 147, 148, 448 , 427 and 435 IPC read with Sec. 149 I.P.C., are the petitioners herein. 11 accused persons faced trial before the learned Magistrate. Out of them accused Nos. 8 to 11 were found not guilty and were acquitted by the trial Court. This Revision Petition is directed against the concurrent conviction and sentence passed against the petitioners. 2. The case of the prosecution is that on 11-2-1998 at about 5.30 p.m. the petitioners along with so many other **Crl.R.P. No. 2344 of 2006** -:2:- persons belonging to a major political party formed themselves into an unlawful assembly with the common object of committing trespass into the residential house of P.W1 and P.W2, and after trespassing into the residential house destroyed the house-hold articles like tables, chairs, phones, sewing machine, fans, and so many other items and also destroyed the windows, doors and roof tiles. Further they also set fire to the cattle shed adjacent to the residential house mentioned above and destroyed the same causing burn injuries to the cattle. According to the prosecution, the act of the accused caused a loss of about Rs. 1,00,000/- to P.W.1 and P.W.2. Ext.P1, the F.I. statement was given by P.W.1 based on which the F.I.R. was registered . After conducting investigation the charge-sheet was laid against 11 accused persons mentioned above. P.W.1 to P.W.8 were examined and Exts.P1 to P4 were marked. MO1 series the broken pieces of tiles,chairs, fridges, fans etc,. were also identified and marked. 3. The learned Magistrate, after a thorough scanning **Crl.R.P. No. 2344 of 2006** -:3:- of the evidence given by P.W.1 and P.W.2 which was supported by P.W.3 and other circumstances found the petitioners guilty and they were convicted and sentenced as mentioned above. The appeals filed by the petitioners were dismissed by the Addl. Sessions Judge confirming the conviction and sentence passed against them. 4. The learned counsel for the revision petitioners submits that P.W.1 and P.W.2 are the mother and daughter respectively. Though the incident took place on 5.30 p.m. on 11-2-1998 the first information statement was given by P.W.1 only at 11.55 a.m. on 12-2-1998. According to the petitioners, Ext.P1 was lodged by P.W.1 after thorough deliberation, especially, because the workers of the political party to which P.W.1's brother was having allegiance had visited the house of P.W.1. It is also stated that P.W.4 the independent witness did not support the prosecution. It was not possible P.W.3 to see the incident and so his evidence is to be disbelieved. Since P.Ws 1 and 2, on seeing the accused **Crl.R.P. No. 2344 of 2006** -:4:- trespassing into the house, left that house and went to the neighbouring house it was not possible for P.W.1 and P.W.2 to identify any of the assailants, It i further contended. The argument proceeds further stating that the names of these petitioners were furnished as supplied by the leaders of the other political party to which P.W.1 and P.W.2 belong. It is strenuously contended that the petitioners were not properly identified so as to fix the criminal liability on them. It is further contended that so far as the role of the 7th accused is concerned, there is inconsistent version and that P.W.1 did not even identify the 7th accused. The further argument that is advanced by the learned counsel for the petitioners is that the compensation directed to be awarded by the court below is excessive and disproportionate since the value of the articles alleged to have been destroyed was not assessed properly. 5. The learned Public Prosecutor has strongly opposed the submission. The contention that Ext.P1 was subsequently **Crl.R.P. No. 2344 of 2006** -:5:- concocted after thorough deliberation has been assailed seriously by the learned Public Prosecutor stating that P.Ws 1 and 2 are two aged women. The learned Public Prosecutor submits that the petitioners and so many other persons trespassed in the house and committed acts of vandalism destroying the tables, chairs and sewing machine, fan, fridge and almost all the house-hold articles and created a terrifying atmosphere. The state of mind of P.W.1 and P.W.2, the women, is well understandable. The contention that there was unexplainable delay in lodging the F.I. statement was turned down by the courts below. The further contention that the workers or leaders of the other political party had visited the house and cow-shed where such valuable articles were smashed to smithereens cannot be a reason to say that the names of the accused persons were furnished by those persons. The evidence given by P.W.1 to 3 would clearly show that the accused persons were of the very same locality and they were known to them previously. Therefore, the **Crl.R.P. No. 2344 of 2006** -:6:- requirement of identifying those persons by conducting an identification parade, does not arise at all. It is not a case where the accused persons were unknown to P.Ws 1 to 3. The fact that P.W.4 did not support the prosecution is no reason to say that P.W.1 to P.W.3 are totally unreliable. The learned Public Prosecutor submits that in cases like this where one political party having such muscle power and political power creates acts of vandalism and terrifying atmosphere nobody would come forward to speak against those persons lest they would be inviting the wrath of such workers of that political party. 6. The learned Public Prosecutor submits that the courts below had the opportunity to watch the demeanour of P.Ws 1 to 3 to find that the evidence given by them radiates confidence in the minds of the Court. Though in this Revision it is actually not necessary to go through the evidence of P.Ws 1 to 3 and also of other witnesses. I have gone through the evidence of those witnesses and also the scene mahazar and **Crl.R.P. No. 2344 of 2006** -:7:- the F.I.R. to find whether there was anything wrong in the appreciation made by the courts below. I could find nothing. 7. An attempt was made by the learned counsel for the petitioners to contend that the name of the 7th accused was not shown in the F.I. statement. It is seen that an incorrect suggestion was put to P.W.1 to the effect that the name of one Suku was given by her in the F.I. statement. It was an incorrect suggestion made by the counsel to mislead the witness. The FI. statement does not show the name of Suku. The name of the 7th accused is Surendran. The learned Public Prosecutor submits that it is usual that such person by name Surendran is usually called by the short name as Suran or Suru. It is also important to note that when P.W.1 was in the witness box a question was put whether she had given the name of one Motta Suku but she had flatly denied and said that she had given the name Motta Suru and she identified the 7th accused. Thereafter that question was not pursued by the learned counsel for the defence but still **Crl.R.P. No. 2344 of 2006** -:8:- argument was addressed by the learned counsel to the effect that identification of the 7th accused was improper and a wrong statement was given by P.W.1 to the police. The 7th accused was properly identified by the witnesses especially by P.W.2. That was not challenged in cross-examination also. Therefore, by putting an incorrect suggestion to P.W.1 and eliciting an answer that a person by name Suku was mentioned in the F.I. statement but that person was not the 7th accused before Court. Every effort was made by the defence to confuse the witness and also to confuse the court, if possible. But the courts below went through the evidence in the correct perspective and rejected the contention put forward by the defence. Therefore, the argument so made by the learned counsel for the petitioners before this Court is also found to be unmerited . 8. The learned counsel for the accused would submit that P.W.1 and P.W.2 should have stated about the overt acts done by each of the accused persons. It is a case where all **Crl.R.P. No. 2344 of 2006** -:9:- the persons who trespassed into the house, according to the witnesses, and destroyed the house-hold articles. It is not necessary to say that A1 destroyed one article, A2 destroyed the other article etc. It is a case where the common object of the unlawful assembly was to trespass into the house and to destroy the entire house-hold articles. When the formation of the unlawful assembly and common object as has been referred to above could be proved by the evidence given by P.W.1 to 3, which gets corroboration from the factors mentioned in the scene mahazar, the argument that the petitioners should not have been found guilty because the overt acts of each of the accused has not been specified in the evidence is rather unsound and untenable. It is not a case where the identity of the accused could be proved only by pointing out the overt act of those accused persons. The contention that unless the overt act is attributed in respect of each of the accused persons there could be a wrong implication of the accused persons has no legs to stand in **Crl.R.P. No. 2344 of 2006** -:10:- this case since the petitioners belonged to the same place and their names were mentioned in the F.I. statement also. P.W.1 has given evidence regarding the role of the accused persons stating that these petitioners were among the persons who trespassed into the house and committed mischief as mentioned earlier. 9. A strange contention was advanced by the defence before the Court below that during that period there used to be such acts of vandalism by political parties; one political party trespassing into the house and committing mischief destroying the house and household articles of a person belonging to the other group, and the other party workers doing the same thing against their opponents in retaliation, as if political parties are given license to commit such criminal mischief and can get political protective umbrage. By putting such a suggestion, the defence wanted to glorify the act of vandalism, the learned Public Prosecutor submits. 10. The other contention that was advanced by the **Crl.R.P. No. 2344 of 2006** ## -:11:- accused was that since P.W.1 and P.W.2 ran to the nearby neighbouring house it was not possible for them to see the incident. They have stated that they went to the other house when the accused trespassed into the house to commit mischief. There was no case that it was not possible for P.W.1 and P.W.2 to see the incident from the neighbouring house. In fact P.W.3 who was the neighbour also has supported the evidence given by P.W.1 and P.W.2 about the incident. It was in the house of P.W.3, P.W.1 and P.W.2 took shelter. It was stated by P.W.3 that the nearest house was his house and that it was from his house P.W.1 and P.W.2 watched the incident. The fact that P.W.3 was related to P.W.2 is no reason to say that he has given false evidence. 11. The learned counsel for the petitioners has relied upon the decision of the Apex Court in Akbar Sheik and others v. State of West Bengal - (2009) 7 SCC 415 in support of the submission that it would be safe to convict only those persons against whom overt act is alleged lest some innocent **Crl.R.P. No. 2344 of 2006** -:12:- spectators may also get involved. Common object is different from common intention as it does not require a prior concert and a common meeting of mind . It is enough if each of them had the same object in view and there was five or more persons in that assembly and they acted as an assembly to achieve that common object. The common object of the assembly is to be ascertained from the facts and circumstances, accent and language of the members composing of it. It can also be gathered from the course of conduct adopted by the members of the assembly. So far as the case on hand is concerned the consistent evidence is that the petitioners and so many other persons by forming themselves into an unlawful assembly trespassed into the house of P.W.1 and P.W.2. It is also in evidence that the members of that unlawful assembly destroyed the household articles worth Rs. 1,00,000/- (value at that point of time). Therefore, there could be no difficulty to determine the common object of the unlawful assembly since the conduct of **Crl.R.P. No. 2344 of 2006** -:13:- each of the members of the unlawful assembly at the time of attack and the motive for the crime are so loudly obtrusive that it could create no scintilla of doubt that the common object of the unlawful assembly was to cause destruction of the household articles in the manner stated above. The very fact that all of them barged into the residential house carrying deadly weapons will speak for itself as to the common object of that unlawful assembly. Here it is actually a case where common object of the unlawful assembly was translated into action and they even became successful in their act. See the decisions of the Supreme Court in Maranadu v. State - (2008) 16 SCC 529. 12. In Horilal v. State of U.P. - (2006) 13 SCC 79 it was held that the common object would mean the purpose or design shared by all members of such assembly and that it may be formed at any stage. Whether in a given case the accused persons shared common object or not must be ascertained from the acts and conduct of the accused persons. **Crl.R.P. No. 2344 of 2006** -:14:- The surrounding circumstances are also relevant and can be taken into consideration in arriving at a conclusion in this behalf. So far as the case on hand is concerned, there can be no iota of doubt that the common object of the unlawful assembly was to trespass into the house and commit criminal mischief by destroying the household articles. It is not a case where the petitioners happened to be present in that house as mere onlookers or persons who reached there to watch the scene out of curiosity . There was no such case for the defence before the courts below . In Akbar Sheik (cited supra) it was a case where the incident took place near the pond and there were so many persons arrayed as accused . The contention raised by the defence was that the overt act of the appellant was not spoken to by the witnesses and it is possible that the appellant happened to be at or near the scene who happened to reach there out of curiosity . Here the position is entirely different. To fasten the criminal liability with the aid of Sec. 149, two essential ingredients **Crl.R.P. No. 2344 of 2006** -:15:- to be proved are the commission of offence by any member of an unlawful assembly and such offence was committed in prosecution of the common object of that assembly or it must be such as the members of that assembly knew to be likely to be committed. Here, the very fact that the petitioners trespassed into the residential house of P.W.1 along with others and they had actively participated in the destruction of the household articles would clearly prove their complicity. 13. It is submitted by the learned Public Prosecutor that in Nagarjit Ahir v. State of Bihar - (2005) 10 SCC 369, though it was stated that it may be safe to convict only those persons against whom overt act is alleged with the aid of Sec.149 I.P.C. lest some innocent spectators may get involved, it was held; it is only rule of caution and not a rule of law. In other words, if the fact finding court has reason to hold that the role of the accused is established from the evidence given by the prosecution witnesses then it cannot be said that there should also be evidence to prove the exact overt act of each **Crl.R.P. No. 2344 of 2006** -:16:- of the accused who are the members of the unlawful assembly. 14. The crucial question is whether the evidence given by the prosecution witnesses instill confidence in the mind of the Court to hold that the petitioners were actually members of that unlawful assembly and whether they shared that common object. There could be no difficulty to hold that each of the members of the unlawful assembly had shared that common object. The only other point remains for consideration is whether the petitioners were members of that unlawful assembly. As has been said earlier, the prosecution witnesses have spoken about the presence of the accused persons in the unlawful assembly mentioned earlier. 15. The learned Public Prosecutor would submit that even if four accused persons were acquitted by the trial Court that is no reason to say that the evidence of P.W.1 to P.W.3 is unacceptable. It was held by the Hon'ble Supreme Court in Gangadhar Behera v. State of Orissa -(2002) 8 SCC 381: -:17:- **Crl.R.P. No. 2344 of 2006** _"Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons" ._ See also the decision of the Supreme Court in Pratap and Another v. State of Kerala - (2010) 12 SCC 79. It was held by the Apex Court in Chanda v. State of U.P. - (2004) 5 SCC 141 that the pivotal question is applicability of Section 149 I.P.C. which has its foundation on constructive liability which is the sine qua non for its operation. It is true that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object. Here, the common object of the unlawful assembly could be proved beyond reasonable doubt. In fact that was not disputed also. The acts of criminal mischief committed in the house of P.W.1 and P.W.2 would prove that aspect to the hilt. Undoubtedly, that assembly **Crl.R.P. No. 2344 of 2006** -:18:- consisted of more than 5 members. The only other point as noted above was whether the petitioners were members of that unlawful assembly. There could be no doubt that those persons entered the house compound of P.W.1 and 2 and also entered the house to carry out that common object of destruction of the household articles. The evidence given by P.W1 to P.W.3 as to the active role of the accused persons persuaded the courts below to hold the petitioners guilty. 16. It is not a case where the accused persons were merely passive witnesses and joined the assembly as a matter of idle curiosity without intending to entertain the common object of the unlawful assembly. It is also not a case where there was only a mere innocent presence of the accused in an assembly of persons as a bystander or otherwise. The evidence given by P.Ws 1 to 3 the eye witnesses would demolish the plea so raised by the accused. See also the decisions of the Supreme Court Masalti v. State of U.P. - AIR 1965 SC 202 and Musa Khan v. State of **Crl.R.P. No. 2344 of 2006** -:19:- Maharashtra (1977) 1 SCC 733. 17. The learned counsel for the petitioners has also relied upon the decision in Eknath Ganpath Ahar & Others v. State of Maharashtra - (2010) (6) SCC 519 to buttress his submission that unless there is cogent and specific evidence attributing a specific role in the incident to the accused persons, it is unsafe to pass an order recording conviction and sentence against such accused persons. That was a case where witnesses produced were on inimical terms with the accused persons, and the accused persons also had sustained injuries in the incident. The offence alleged against the accused persons include the offence punishable under Sec. 302 of I.P.C. More over, there were civil cases with regard to the question of title and ownership of the said land where the incident took place. 21 other accused persons who were stated to be the members of the unlawful assembly were already acquitted. It was in those circumstances, the Apex Court held that it is unsafe to find the appellants therein **Crl.R.P. No. 2344 of 2006** ## -:20:- guilty of the offences with which they were charged. The evidence on record in this case are totally different. P.W.1 and P.W.2 the women residents of that house who saw the accused trespassing in the house has given evidence in support of the prosecution allegation. That was supported by P.W.3 who is the immediate neighbour. The fact that there was trespass and that criminal mischief was committed by the members of that unlawful assembly by destroying the entire house-hold articles and that a cowshed was also set fire to by the members of that unlawful assembly is beyond any pale of doubt and in fact that aspect was not challenged by the accused also. The contention that the revision petitioners were not properly identified was turned down by the courts below appreciating the legal and acceptable evidence adduced by P.W.1 to P.W.3. I find no reason to upset the concurrent finding so entered by the courts below. The conviction is only to be confirmed. 18. A reading of the scene mahazar would show the **Crl.R.P. No. 2344 of 2006** ## -:21:- gravity of the offence committed by the accused persons. Only because the brother of P.W.1 happened to belong to the opposite political party, the accused have chosen to take law into their own hands and by using muscle power and political power they destroyed the entire household articles, the learned Public Prosecutor submits. It is also pointed out by the learned Prosecutor that it is a case where the accused persons showed no scruples or humaneness since they had even set fire to the cow-shed and caused burn injuries to a cow. That was not disputed by the accused. The horrifying and terrifying act of the accused should have in fact persuaded the trial court to award deterrent punishment, but they were sentenced only to undergo R.I. for one year for the offence under Section 435 and 427 I.P.C. It is also pointed out that the articles which were destroyed by the accused persons were then worth rupees one lakh. The learned counsel for the petitioners vehemently argued that there was no proper assessment of the damage . That is not required. A **Crl.R.P. No. 2344 of 2006** -:22:- perusal of the scene mahazar would show the acts of vandalism. The entire household articles were destroyed and the cow-shed was set fire to. In these circumstances, the contention that at the relevant time the value of the articles would be Rs. 1,00,000/- is found to be just and reasonable, if not too low. But, however, I find that the sentence has to be modified to grant proper relief to the victims as well. 19. In the result this Crl.R.P. is disposed of as stated below: The conviction is confirmed. In supersession of the sentence awarded by the courts below, the petitioners are sentenced to R.I. for 9 months and to pay Rs. 30,000/(Rupees thirty thousand only) each as compensation for the offence under Section 427 and 435 read with Sec. 149 I.P.C. In default of payment of the compensation amount, petitioners will undergo S.I. for six months each. They are further sentenced to R.I. for 6 months for the offence under Sec. 448 read with Sec. 149 I.P.C. and also to R.I. for 3 **Crl.R.P. No. 2344 of 2006** -:23:- months each for the offence under Secs. 143, 147 and 148 read with Sec. 149 I.P.C. Substantive sentences shall run concurrently.(The total compensation payable by the Revision Petitioners would come to Rs. 30,000 x 7 = Rs. 2,10,000). The learned Magistrate will take steps to execute the sentence and to recover the amount of compensation if not remitted within one month from today. Dated this the Ist day of December, 2012. Sd/-N.K. Balakrishnan, Judge. ani. /true copy/ P.S. to Judge