State of Kerala v. Mani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 12TH DAY OF OCTOBER 2020/20TH ASWINA, 1942** **Crl.Rev.Pet.No.429 OF 2010** **AGAINST THE JUDGMENT IN CRA 327/2006 DATED 22-12-2009 OF ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD** **CC 747/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PALAKKAD DTD.27.4.2006** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED Nos.1 to 7:** - **1 MANI, S/O.KUNHUMON, PUTHENPURAKKAL, MUTHIRAMKUNNU VEEDU, ANAKKALLU, MALAMPUZHA.** - **2 HARIDAS, S/O.APPUKUTTAN, KETUMKARA, ARUKUDI, AMBALLAM, KOTTEKKAD, MARUTHAROAD.** - **3 ARUCHAMI,** - **S/O.APPUKUTTAN, KETUMKARA, ARUKUDI, AMBALLAM, KOTTEKKAD, MARUTHAROAD.** - **4 VIVEKANANDAN, S/O.APPUKUTTAN, KETUMKARA, ARUKUDI, AMBALLAM, KOTTEKKAD, MARUTHAROAD.** - **5 PRAKASAN, S/O.BHASKARAN, KETUMKARA, ARUKUDI, AMBALLAM, KOTTEKKAD, MARUTHAROAD.** - **6 KASAPPAN, S/O.SANTHU MUHAMMED, KETUMKARA, ARUKUDI, AMBALLAM, KOTTEKKAD, MARUTHAROAD.** - **7 BABU @ SURESH, S/O.VISWANATHAN, KETUMKARA, ARUKUDI, AMBALLAM, KOTTEKKAD, MARUTHAROAD.** **BY ADVS. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN** Crl.R.P.No.429 of 2010 ..2.. ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRSENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-09-2020, THE COURT ON 12-10-2020 PASSED THE FOLLOWING:** Crl.R.P.No.429 of 2010 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** Dated this the 12[th] day of October, 2020 The revision petitioners are the appellants in Crl.A.No.327/2006 on the file of the Additional Sessions Court, Adhoc-I, Palakkad and the accused in C.C.No.747/2002 on the file of the Judicial First Class Magistrate Court-III, Palakkad. By its judgment dated 27.4.2006, the learned Magistrate convicted the accused 1 to 7 for the offences punishable under Sections 143, 147, 148, 447, 324 and 326 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC') and sentenced them to undergo imprisonment and also to pay fine amount under various counts including imprisonment for one year each and also to pay a fine of Rs.1,000/- each in default of payment of fine to undergo rigorous imprisonment for a period of three months each Crl.R.P.No.429 of 2010 **==> picture [22 x 8] intentionally omitted <==** more. All the above sentences were ordered to run concurrently. Challenging the conviction and sentence, the accused preferred an appeal before the appellate court. The appeal was dismissed confirming the conviction and sentence imposed by the trial court. Hence the revision petitioners are before this Court. 2. The prosecution case in brief is that on 11.6.2002 at about 9 pm., at Muthiramkunnu in Malambuzha Village, out of prior enmity all the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object trespassed to the property of PW1 and voluntarily caused hurt to him and also inflicted injuries to PWs.2 and 3 and thereby committed the aforesaid offences. 3. For the occurrence in question, PW1 lodged Ext.P1 statement before PW9 the Head Constable of Crl.R.P.No.429 of 2010 ..5.. Malambuzha on 12.6.2002 at 4.00 pm. Pursuant to Ext.P1, PW9 registered Ext.P6 FIR for the offences punishable under Sections 143, 147, 148, 341, 447 and 324 read with Section 149 of the IPC. Thereafter, PW10 questioned the witnesses, recorded their statements, recovered the material object, completed the investigation and filed final report before the trial court. 4. Upon the appearance of the accused, after having heard both sides, the trial court framed charges against the accused under Sections 143, 147, 148, 341, 447, 324 and 326 read with Section 149 of the IPC. The charge was read over to which all the accused pleaded not guilty. When the case came up for evidence, PWs.1 to 11 were examined and marked Exts.P1 to P7 and MOs.1 and 2 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. All the accused denied the Crl.R.P.No.429 of 2010 **==> picture [22 x 8] intentionally omitted <==** incriminating circumstances appearing in the evidence against them. However, no defence evidence was adduced. 5. Heard Sri.M.Revikrishnan, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Public Prosecutor for the State. 6. PWs.1 to 3 are the injured in this case. The 1[st] accused is the brother of PW1 and the 2[nd] accused is the brother-in-law of the 1[st] accused respectively. The 3[rd] and 4[th] accused are also brothers-in-law of the 1[st] accused. The 5[th] , 6[th] and 7[th] accused are the neighbours of the other accused. According to PW1, while he was sitting at home, all the accused came towards his house and asked him to come out. When he came out from the house, suddenly the 1[st] and 5[th] accused dragged him to the courtyard resulting a scuffle among them. While so, the 2[nd] accused beat him below the left knee with MO1 stick. Crl.R.P.No.429 of 2010 **==> picture [22 x 8] intentionally omitted <==** On seeing this, PWs.2 and 3 rushed to the scene of occurrence. PW3 is the sister of PW1 and PW2 is her husband. They were also residing along with PW1 at his residence. Soon thereafter, the 3[rd] accused inflicted injuries on the head and left leg of PW2 with MO2 chopper. When PW3 came to rescue her husband, the chopper fell on her arm and as a result of which she sustained injuries. According to PW1, previously the 1[st] accused had beaten his son which was questioned by his mother and on account of this enmity, the accused trespassed into his courtyard and committed the aforesaid offences. PW1 identified MOs.1 and 2 before the court. PWs.2 and 3 supported the version of PW1. PWs.1 to 3 stated that the accused were familiar with them prior to the incident. The accused Nos.1 to 4 are close relatives of PW1. They had stated that they identified the accused in the moon light. The question of identification of the Crl.R.P.No.429 of 2010 **==> picture [22 x 8] intentionally omitted <==** accused has not been seriously challenged during crossexamination. The occurrence in this case took place in front of the courtyard of PW1 at 9 pm. The parties are close relatives and all are known to each other prior to the occurrence. 7. PWs.2 and 3 adduced evidence to show that all the accused came to the house of PW1 and called and brought PW1 to the courtyard by catching his shirt. Then the 2[nd] accused beat him with a stick on his leg and the 3[rd] accused inflicted a cut injury on his head and left leg with MO2 chopper. On seeing this, PW3 Radha wife of PW2 came and tried to ward off and then the 3[rd] accused inflicted an injury on PW3 with MO2 chopper. PW3 also sustained injuries. Immediately after the occurrence, all of them were taken to the hospital. PWs.2 and 3 identified MOs.1 and 2 before court. Crl.R.P.No.429 of 2010 ..9.. 8. PW5 the Doctor examined PWs.1, 2 and 3 and issued Exts.P3, P4 and P5 wound certificates respectively. As per Ext.P3 wound certificate PW1 sustained the following injuries:- “ _Contusion 8x8 cm left upper shin. To rule out #left tibia in region. (ortho consultation), contusion 2x2 cm left forearm.”_ 9. As per Ext.P4 wound certificate PW3 sustained the following injuries:- _“Lacerated wound 3x0.25x0.25 cm. left_ _hand.”_ 10. Similarly, as per Ext.P5 wound certificate, PW2 sustained the following injuries:- - _“1.Lacerated wound 3x0.25x0.25 cm. scalp._ _2. Bleeding small wounds ( 2 in number) left lower leg._ _3. Abrasion left forearm.”_ 11. When examined before court PW1 stated that the 2[nd] accused beat him with a stick on his head and the Crl.R.P.No.429 of 2010 **==> picture [28 x 8] intentionally omitted <==** 3[rd] accused inflicted a cut injury on his head. PW2 another injured supported the version of PW1 and stated that the 3[rd] accused inflicted injuries on his head and left leg. PW3 stated that when she attempted to ward off the assault she also sustained injuries. On going through Exts.P2 to P5 it is clear that PW1 sustained simple and grievous injuries as stated by them. The medical evidence supported the version of PWs.1 to 3. It is true that PWs.6 to 8, the independent witnesses in this case, turned hostile to the prosecution. The trial court as well as the appellate court concurrently believed the version of PWs.1 to 3 and entered a finding that the accused committed the offences alleged against them. According to the prosecution, all the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object, committed the offences aforesaid. Crl.R.P.No.429 of 2010 **==> picture [28 x 8] intentionally omitted <==** 12. On a combined reading of Sections 141 and 149 of the IPC would show that an assembly of less than 5 persons is not an unlawful assembly within the meaning of Section 141 of the IPC and cannot therefore form the basis for conviction of an offence with the aid of Section 149 of the IPC. On going through the evidence adduced in this case, there is nothing on record to show that the accused 1, 4 to 7 were present at the scene of occurrence on the date of occurrence. It is brought out in evidence that the 2[nd] and 3[rd] accused inflicted injuries on PWs.1 to 3 as alleged by the prosecution. The evidence does not show that 7 persons were armed with deadly weapons which they wielded towards PW1 and when PWs.2 and 3 went to the rescue of PW1, they were also beaten. There is also no evidence to show that all others except the 2[nd] and 3[rd] accused were armed with deadly weapons. The prosecution case was that a few accused entered in the Crl.R.P.No.429 of 2010 **==> picture [28 x 8] intentionally omitted <==** courtyard and others were standing at the place of occurrence. Unless and until positive evidence was adduced to prove the identity of the accused who were standing at the place of occurrence, it is not just and proper to convict them for the offence against the public tranquility. There is no specific finding that some unidentified persons along with remaining accused less than 5 had formed an unlawful assembly in this case. The circumstances in this case shut out reasonable possibility of identification of other accused other than the 2[nd] and 3[rd] accused. Physical presence of the accused 1 and 4 to 7 in the assembly is not proved in this case. Necessary ingredients to prove unlawful assembly is not brought out in evidence. In fact, the presence of the accused 1 and 4 to 7 are not proved in evidence. It is true that the court is competent to convict the accused with the aid of Section 149 of the IPC provided the prosecution is able to prove Crl.R.P.No.429 of 2010 **==> picture [28 x 8] intentionally omitted <==** that A2 and A3 along with other unidentified accused (5 or more persons) formed into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object assaulted PWs.1 to 3. In the case on hand, there is no evidence to show that 5 or more persons constituted an unlawful assembly on the date of occurrence and other requirements of the said Section as to the common object of the person composing that assembly are satisfied. In the case on hand, there is no evidence to show that the said assembly consisted of 5 or more persons having one of the specified objects as their common object. 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 under Section 148 of the IPC without a finding that those who were so convicted were armed with deadly weapons is unsustainable. Persons not armed with deadly weapons Crl.R.P.No.429 of 2010 **==> picture [28 x 8] intentionally omitted <==** cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for the mere reason that they were members of the unlawful assembly. 13. Judged by the above standards, the prosecution has not succeeded in proving the offences under Section 143, 147, 447, 324, 326 read with Section 149 of the IPC as against A1 and A4 to A7 beyond doubt. Hence they are found not guilty for the aforesaid offences and are acquitted thereunder. However, the evidence on record would inter alia show that the 2[nd] and 3[rd] accused in furtherance of their common intention trespassed into the courtyard of PW1 and assaulted PWs.1 to 3 out of prior enmity towards them. The parties had been known each other for a very long time. They are related also. Considering the above aspects, though the occurrence took place in the night, the presence of light is immaterial. Even by words and gestures, their presence could be very Crl.R.P.No.429 of 2010 ..15.. well located by PWs.1 to 3 due to their prior acquaintance with the 2[nd] and 3[rd] accused. It is also brought out in evidence that PWs.1 to 3 sustained injuries as a result of the overt acts committed by the 2[nd] and the 3[rd] accused. 14. In view of the discussion made hereinabove, this Court is of the view that the accused 2 and 3 committed the offences punishable under Sections 447, 324 and 326 read with Section 34 of the IPC and accordingly they are convicted thereunder. The trial court had awarded rigorous imprisonment for three months each for the offence punishable under Section 447 of the IPC, to undergo six months each for the offence punishable under Section 324 of the IPC and to undergo one year each and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months each for the offence punishable under Section 326 of the IPC. The same was confirmed in appeal. Crl.R.P.No.429 of 2010 ..16.. 15. Coming to the question of sentence, the learned counsel for the revision petitioners submitted that the occurrence in this case was on 11.6.2002 and the revision petitioners have been prosecuting the matter for the last 18 years. They have undergone the agony of criminal proceedings all these years. The learned counsel further submitted that the 2[nd] and 3[rd] accused have not been convicted in any other case so far. Considering the above special circumstances, the learned counsel for the revision petitioners seeks indulgence of this Court to reduce the sentence. 16. Having taken into consideration of the entire circumstances including the date of occurrence, this Court is of the view that the criminal revision petition is allowed in part as follows:- 1) The revision petitioners 1, 4 to 7/A1, A4 to A7 are found not guilty for the offences under Sections 143, 147, 148, 447, 324 and Crl.R.P.No.429 of 2010 ..17.. 326 read with Section 149 of the IPC and they are acquitted thereunder. The revision petitioners 2 and 3/A2 and A3 are found not guilty for the offences under Sections 143, 147 and 148 read with Section 149 of the IPC and they are acquitted thereunder. - 2) The revision petitioners 2 and 3/A2 and A3 are found guilty for the offences under Sections 447, 324 and 326 read with Section 34 of the IPC. - 3) The revision petitioners 2 and 3/A2 and A3 are sentenced to pay a fine of Rs.2,000/each and in default to undergo simple imprisonment for a period of one month each for the offence punishable under Section 447 of the IPC, to undergo imprisonment for two months each for the offence punishable under Section 324 of the IPC and to undergo rigorous imprisonment for three months each and also to pay a fine of Rs.3,500/- each (i.e., Rs.3,500/-+ Crl.R.P.No.429 of 2010 ..18.. Rs.3,500/-= Rs.7,000/-) in default of payment of fine to undergo simple imprisonment for a period of three months more for the offence under Section 326 of the IPC. The above sentences shall run concurrently. In case the fine amount is remitted by the revision petitioners 2 and 3/the 2[nd] and 3[rd] accused, an amount of Rs.3,500/- shall be disbursed to PW1 and an amount of Rs.1,750/- each shall be disbursed to PWs.2 and 3 as compensation in accordance with law as ordered by the trial court. In the result, the criminal revision petition is allowed in part. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR,** skj