State of Kerala v. V. M. Preetty, Gagar Korah, Satheesh Paul, David V.M.

_**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 1 ``` **==> picture [49 x 49] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943 CRL.A NO. 377 OF 2006 ``` ``` AGAINST THE JUDGMENT IN SC 175/2005 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, KOTTAYAM ``` ## **`APPELLANTS/ACCUSED NOS.1,2,4 AND 5:`** ``` 1V.M.PREETTY, S/O. V.S. MOHANAN, CHENGANATHARA VEEDU, PADINJARA KARA, VAIKOM VILLAGE. 2GAGAR KORAH, S/O.M.V.KORAH SADATHI VEEDU, VELOOR VILLAGE, THIRUVATHUKAL KARA. 3SATHEESH PAUL, S/O.PAULOSE, CHAMALAKALA VEEDU, KATTUPARA VILLAGE, PARIYARAM KARA. 4DAVID V.M, S/O.V.M.MATHEW VALIYA PLACKAL VEEDU, PERUMBAIKADU VILLAGE, NATTASERI KARA. BY ADVS. SRI.JOHN K.GEORGE SRI.K.SUBRAMANI ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI SANGEETHA RAJ-PP, SMT AISWARYA ANN JACOB(AMICUS CURIAE) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 2 ``` **==> picture [49 x 49] intentionally omitted <==** ## JUDGMENT This appeal has been preferred by accused Nos.1,2,4 and 5 challenging the judgment dated 30.11.2005 in S.C.No.175/2005 on the file of the Additional Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam (for short 'the court below'), convicting them under Sections 143, 148, 332, 333 and 308 r/w 149 of IPC. 2. The prosecution case in short is as follows: On 3.11.2004 a State wide agitation by leading processions and staging 'dharna' before Collectorate was organized by leftist parties and media persons to protest against the assault and lathi charge of mediamen from Karipur Airport by Minister Kunjalikkutty's men and police on the previous day. At Kottayam, media men and leftist parties numbering around 1000 came to the Collectorate in the morning on 3.11.2004 and they squatted in front of the main gate and started their dharna. A large number of police personnel including the Dy.S.P of Kottayam, Inspectors of different circles, Sub Inspectors and _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 3 ``` **==> picture [49 x 49] intentionally omitted <==** Constables were on duty in front of the gate which was on the northern side of K.K.Road that run east west. By about 12 in the noon, a procession of about 50 students of S.F.I, the student wing of Marxist party, came towards the gate from western side. The first and 2nd accused were leading the procession. They were cordoned off by the police from the road in front of the gate. Immediately the members of the procession started pelting stones and an effigy of the Minister which was in the hands of the fourth accused was set fire by the 2nd accused and the burning effigy was hurled at police by the 3rd accused. The effigy fell on the back left shoulder of police constable namely Mr.Mohanan and a stone pelted by the 5th accused hit at the eyebrow of the police constable Mr.Kuttappan and his nose started to bleed. Mr.Raveendran, a Sub Inspector of Police also was injured in the incident. This is the sum and total of the prosecution allegation. 3. Altogether there were six accused. On receipt of summons, all of them appeared at the court below. After _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 4 ``` **==> picture [49 x 49] intentionally omitted <==** hearing both sides, the court below framed charge against them under Sections 143, 148, 332, 333 and 308 r/w 149 of IPC. The charge was read over and explained to the accused who pleaded not guilty. 4. The prosecution examined PW1 to PW10 and marked Exts.P1 to P7. MO1 was identified. No defence evidence was adduced. 5. Considering the evidence on record, the court below found the accused Nos.1,2,4 and 5 guilty for the offence punishable under Sections 143, 148, 332, 333 and 308 r/w 149 IPC and they were convicted for the said offence. The accused Nos.3 and 6 were found not guilty and accordingly they were acquitted. Challenging the conviction and sentence, the accused Nos.1,2,4 and 5 preferred this appeal. 6. I have heard Smt.Sanjana Racheal Jose, the learned counsel for the appellants and Sri.Sanjeetha Raj, the learned Public Prosecutor. I have appointed Smt.Aiswarya Ann Jacob as _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 5 ``` **==> picture [49 x 49] intentionally omitted <==** Amicus Curiae. I place on record the appreciation for the after assistance rendered by the learned Amicus Curiae. 7. The learned Counsel for the appellants Smt.Sanjana Racheal Jose impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned Counsel submitted that PW2 and PW3, whose evidence were heavily relied on by the court below, are interested witnesses and that no independent witnesses were examined. The learned Counsel further submitted that the medical evidence and ocular witnesses adduced are contradictory to each other. The learned Amicus Curiae Smt.Aswarya Ann Jacob supported the arguments advanced by the learned counsel for the appellants. She added that inasmuch as the members of the unlawful assembly were reduced to less than five by the acquittal of two accused, the conviction under Section 149 of IPC is not sustainable. The learned Amicus Curiae further submitted that, at any rate, there is absolutely nothing to show that the offence under Section 308 of IPC is attracted. Both of them also _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 6 ``` **==> picture [49 x 49] intentionally omitted <==** submitted that no weapon allegedly used for the commission of the offence was seized. 8. The learned Public Prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that, necessary ingredients of Sections 143, 148, 332, 333 and 308 r/w 149 IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 9. PW1 did not support the prosecution. PW2 and PW3 are the injured Police Constables and PW4 is an eye witness. PW2 deposed that on the date of incident he and the police constables namely Mr.Kuttappan (PW3) and Mr.Cherian were on special duty in connection with the Collectorate march in K.K Road in front of the Collectorate from 10 am onwards. By about 12 noon, a procession of about 50 SFI students came in front of the Collectorate. They were carrying an effigy and raising provocative slogans against Minister Kunjalikkutty. He specifically stated that the accused Nos.1 and 2 were leading the _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 7 ``` **==> picture [49 x 49] intentionally omitted <==** procession and they pelted stones against the police. He further deposed that the effigy in the hands of 4th accused was set fire by the 2nd accused and the burning effigy was thrown at them. He also deposed that when they were running back, the effigy fell on the back side of his shirt, which was marked as MO1. He identified accused Nos.1, 2 and 4 at the dock. PW3 also gave evidence in tune with the evidence given by PW2. In addition to the evidence given by PW2, he specifically deposed that accused No.5 threw a stone directly at his face and as a result, the bones of his nose, under the eye and the eyebrows suffered fracture. He further deposed that the accused No.4 also threw burning effigy against him. He identified all the accused. PW4 is the Circle Inspector of Police, Ettumanoor and PW9 is the Deputy Superintendent of Police. They gave evidence more or less in tune with the evidence tendered by PWs 2 and 3. 10. PW5 is the doctor who examined PW3 immediately after the incident at 12.25 pm. PW6 is the doctor who examined PW2 at 12.30 pm. The cause of the incident was narrated by _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 8 ``` **==> picture [49 x 49] intentionally omitted <==** both PW2 and PW3 to PW5 and PW6. Ext.P2 is the wound certificate of PW3. It would show that PW3 sustained fracture of his nasal bone. Ext.P3 is the wound certificate of PW2. It would show that he had sustained two abrasions, both on the left side, one 5 cm long 2 cm wide at back of left shoulder and the other 5 cm long 2 cm wide on the left below neck. 11. PWs 2 to 4 and 9 were cross examined in length by the learned counsel for the accused, but nothing tangible could be extracted from their evidence to create any shadow of doubt that they are not the truthful witnesses. PW2 and 3 clearly deposed the manner in which the accused attacked and caused injuries on them. They gave reliable, consistent and credible version of the crime. PWs 2 and 3 are the injured witnesses. It is trite that the evidence of the injured witnesses have to be given much weightage. Where a witness to the occurrence has himself/herself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he/she is a witness that comes with a built-in-guarantee of his/her presence _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 9 ``` **==> picture [49 x 49] intentionally omitted <==** at the scene of the crime and is unlikely to spare the actual assailant in order to falsely implicate someone. No vital contradictions or material omissions were brought out in the evidence of PWs 2 to 4 and 9. The evidence of the injured witnesses gets corroboration from the medical evidence discussed above. Both doctors have clearly deposed the injuries sustained by them. Thus, I am of the view that the medical evidence also supports the oral evidence given by PWs 2 to 4 and 9. 12. The next question is, in view of the acquittal of accused Nos.3 and 6 by the court below, whether the conviction of the remaining accused under Sections 143, 148 with the aid of Section 149 of IPC could be sustained. The question whether acquittal of some of the accused persons reducing the number of those convicted to less than five has the effect of taking the case out of the purview of Section 149 of IPC was examined by the Constitution Bench of the Apex Court of India in Mohan Singh and another v. State of Punjab (AIR 1963 SC 174). It was held that one of the essential conditions of unlawful _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 10 ``` **==> picture [49 x 49] intentionally omitted <==** assembly under Section 141 of IPC is that its membership must be five or more and as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that cannot be regarded as an unlawful assembly. It was further held that in such circumstance, the conviction could be altered with the aid of Section 34 IPC, if a case of common intention is made out, even in the absence of charge under Section 34 IPC. The said dictum was followed by the Apex Court in K.Nagamalleswara Rao and others v. State of A.P. [(1991) 2 SCC 532], Babu and Another v. State rep. by Inspector of Police, Chennai and Another (AIR 2013 SC 1769), Dhanna and others v. State of M.P. (AIR 1996 SC 2478) and Dhaneswar Mahakud and Others v. State of Orissa (AIR 2006 SC 1727). Recently, the Apex Court in Ram Kumar and Another v. State of Haryana (Crl.Appeal No.104/2022) has held that conviction with the aid of Section 149 of IPC is unsustainable when the co-accused are acquitted making membership of unlawful assembly less than five and there are no _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 11 ``` **==> picture [49 x 49] intentionally omitted <==** unidentified accused. The dictum above squarely apply to the facts of the case. Hence, I am of the view that conviction under Sections 143, 148 r/w 149 of IPC passed by the court below cannot be sustained. 13. What remains is Sections 333, 332 and 308 of IPC. A person can be said to commit offence under Section 308 of IPC when he has intention to commit culpable homicide not amounting to murder and in execution of that intention does an act towards its commission. The court has to see the intention behind the act to come to the conclusion whether an offence under Section 308 of IPC is attracted or not. It is settled that to attract the offence under Section 308 of IPC, the prosecution has to make out the facts and circumstances envisaged by Section 299 of IPC. If the ingredients of Section 299 of IPC are wholly lacking, there cannot be any conviction under Section 308 of IPC. As stated already, the alleged occurrence has taken place when a mob attacked the policemen deputed to control the procession. The injury sustained by PWs2 and 3 are not at all serious. _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 12 ``` **==> picture [49 x 49] intentionally omitted <==** Considering the entire facts and circumstances of the case, I am of the view that there is no reliable evidence to come to the conclusion that there was intention or knowledge on the part of the accused to commit culpable homicide not amounting to murder. Therefore, I am of the view that the prosecution has failed to make out a case u/s 308 of IPC. 14. What remains is Sections 332 and 333 of IPC. S.332 is attracted when hurt is caused to public servant in the discharge of his duty as a public servant or with the intent to prevent or deter that person from discharging his duty as a public servant. S.333 is attracted when grievous hurt is caused. The evidence of PWs 2 and 3 coupled with the medical evidence on record already stated would show that PWs2 and 3 are public servants and they have sustained hurt and grievous hurt respectively at the hands of the accused. Therefore, Ss.332 and 333 are squarely applicable. Then the question is whether the appellants could be convicted under Sections 332 and 333 with the aid of S.34 of IPC. _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 13 ``` **==> picture [49 x 49] intentionally omitted <==** 15. PWs2 and 3 gave a detailed account of the occurrence. PW2 clearly deposed that the accused Nos.1 and 2 were leading the procession and they were carrying an effigy and raising provocative slogans against Minister Kunjalikutty. He further deposed that they pelted stones at the police. He also deposed that the effigy in the hands of the accused No.4 was set fire by the accused No.2 and burning effigy was thrown on them. PW3 specifically gave evidence that the accused No.5 threw stone directly at this face and thereby he sustained fracture. Thus, the overt act on the part of the appellants are clearly proved from the evidence of PWs2 and 3. Therefore, the common intention on their part is evident and stands proved. For these reasons and in view of the settled legal positions discussed above, there is no difficulty in holding that the appellants are guilty of the offence punishable under Sections 332 and 333 r/w S.34 of IPC. So far as the sentence is concerned, the appellants were released on probation. For the reasons stated above, I allow the appeal in part. _**2022:KER:6476**_ ``` CRL.A NO. 377 OF 2006 ``` ``` 14 ``` **==> picture [49 x 49] intentionally omitted <==** The conviction passed against the appellants/accused Nos.1,2,4 and 5 under Sections 143, 148 and 308 r/w 149 of IPC are hereby set aside and they are acquitted for the said offences. Instead, they are convicted under Sections 332 and 333 r/w Section 34 of IPC. Sd/- DR. KAUSER EDAPPAGAT **H** JUDGE ab/Rp