Suinil & Raju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934** ## **Crl.Rev.Pet.No. 1793 of 2002 ( )** **-------------------------------CC.276/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM CRA.338/2000 of III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR** **------------------------------------------------------------------------------** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED NOS.1 & 9:** **---------------------------------------------------------------------------------------** **1. SUINIL, S/O.KRISHNANKUTTY, EDAKKAD HOUSE, THIRUVALAYANOOR DESOM, VADAKKEKAD VILLAGE, THRISSUR DISTRICT.** **2. RAJU, S/O.KOTTAPATTU AYYAPPAN, THIRUVALAYOOR DESOM, VADAKKEKAD VILLAGE, THRISSUR DISTRICT.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT(S)/COMPLAINANT(S):** **--------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV. SRI.BIJU MEENATTOOR.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - -** **Crl. Rev. Petition No.1793 of 2002 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of November, 2012** ## **O R D E R** The petitioners are accused Nos.1 & 9 in Calendar Case No.276/1999 before the Judicial First Class Magistrate's Court, Kunnamkulam. They along with 14 specified persons were prosecuted for offences punishable under Sections 143, 147, 148, 448 & 427 r/w. Section 149 of the Indian Penal Code. 2. The prosecution examined PWs. 1 to 6 and marked Exhibits P1 & P2. The defence got Ext.D1 certified copy of F.I.R. in another case marked in evidence. After considering the evidence adduced, the Magistrate convicted the petitioners and acquitted the other 14 accused. The petitioners were sentenced to undergo rigorous imprisonment for six months each under Section 148 I.P.C., rigorous imprisonment for three months each under Section 448 I.P.C. and rigorous imprisonment for six months each Crl. Rev. Petition No.1793 of 2002 **-2-** under Section 427 I.P.C. No separate sentences were awarded under Sections 143 & 147 of the I.P.C. The sentences were to run concurrently. They were also directed to pay compensation of Rs.15,000/-, (Rs.7,500/each) to PW1 under Section 357 (3) of the Cr.P.C. The petitioners filed Crl. Appeal No.338/2000 before the III Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur, who dismissed the appeal. The petitioners are challenging the judgments of the courts below. 3. The petitioners' contention is that once the other 14 specified accused are acquitted, Sections 141 and 149 cannot be attracted. According to the learned counsel for the petitioners, the court charge is against 16 named persons. The court charge does not contemplate the presence of other unidentified persons along with the said 16 persons. In the absence of such a charge involving other unidentified persons, once the 14 persons are acquitted, then the remaining persons are only two, who cannot form an unlawful assembly as defined in Section 141 of the Crl. Rev. Petition No.1793 of 2002 **-3-** Indian Penal Code. It is also pointed out that there is no specific overact alleged against the petitioners. They have been roped in only as members of an unlawful assembly under Sections 141 and 149 of the I.P.C. Therefore, unless they are proved to be members of an unlawful assembly, they cannot be punished for any of the offences charged. Once the other 14 accused are acquitted, there is no unlawful assembly, of which, the petitioners were part and consequently, they cannot be convicted, is the contention of the petitioners. The counsel for the petitioners relies on the decisions of the Hon'ble Supreme Court in **Nagamalleswara Rao (K.) & Ors. v. State of Andhra Pradesh (1991) 2 SCC 532** and **Subran v. State of Kerala (1993) 3 SCC 32** , in support of his contention. 4. The learned Public Prosecutor, on the other hand, would contend that even if the charge does not mention about other unidentified persons, if the evidence shows that apart from the accused there were other unidentified persons also who would constitute 5 or more persons with Crl. Rev. Petition No.1793 of 2002 **-4-** the petitioners, the unlawful assembly would be complete and insofar as the presence of the petitioners has been identified by PWs. 1 & 2, they would form part of the unlawful assembly, making them liable to be convicted for having been part of the unlawful assembly. 5. I have considered the rival contentions in detail. 6. At the outset, I note that none of the witnesses stated that the petitioners had taken part in any overact constituting any offence. They have been roped in as accused only as members of an unlawful assembly. To constitute an unlawful assembly, there should be at least 5 persons. The charge framed by the court is against 16 specifically named persons. There is no charge that the unlawful assembly comprised of the 16 persons named in the charge sheet and other unidentified persons. Apart from the petitioners, 14 others have not been identified by any witnesses. Therefore, they have been acquitted. Therefore, out of the 16 persons, only two are in the fray as the accused. Two persons cannot form an unlawful Crl. Rev. Petition No.1793 of 2002 **-5-** assembly. The prosecution has no case that apart from the 16 persons, there were other unidentified persons, who took part in the unlawful assembly, who could also form an unlawful assembly with the petitioners. Such a fact situation has been specifically considered by the Hon'ble Supreme Court in **Nagamalleswara Rao** 's case (supra). In paragraph 8 of that judgment, the Hon'ble Supreme Court has held thus: “8. However, the learned Judges overlooked that since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, Section 149 cannot be invoked for convicting the four appellants herein. The learned Judges were not correct in stating that A-1, A-2, A-5 and A-11 “can be held to be the members of the unlawful assembly along with some others unidentified persons” on the facts and circumstances of this case. The charge was not that A-1, 2, 5 and 11 “and others” or “and other unidentified persons” formed into an unlawful assembly but it is that “you A-1 to 15” who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in Crl. Rev. Petition No.1793 of 2002 **-6-** furtherance of a common object. “ In that decision, the Hon'ble Supreme Court has held that in such circumstances the persons remaining in the fray cannot be held to be part of the unlawful assembly and convicted under Section 149. The very same principle has been reiterated by the Hon'ble Supreme Court in **Subran** 's case (supra). The fact situation in this case is identical to the fact situation in those two cases. Therefore, in the absence of any allegation that apart from the 16 persons included in the charge sheet, there were other unidentified persons also involved in the offences alleged, and out of 16 persons, only two have been identified as members of the unlawful assembly, the remaining two cannot be considered to form an unlawful assembly. Consequently, the petitioners being roped in only as members of the unlawful assembly, could not have been convicted when the other 14 named persons have been acquitted. Therefore, I am satisfied that the judgments of the courts below are perverse in that sense. Accordingly, the judgments are set Crl. Rev. Petition No.1793 of 2002 **-7-** aside. The petitioners are acquitted and their bail bonds are cancelled. They are set at liberty. The Criminal Revision Petition is allowed as above. **==> picture [32 x 11] intentionally omitted <==** S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/