Vijayakumar, Vishnu & Pradeeplal @ Vava v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 15TH DAY OF DECEMBER 2020/24TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.1781 OF 2009** **AGAINST THE JUDGMENT IN Crl.Appeal No.349/2007 DATED 31-03-2009 OF DISTRICT COURT & SESSIONS COURT,KOLLAM** **CC 910/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOTTARAKKARA, DTD.23.5.2007** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED Nos.1 to 3:** **1 VIJAYAKUMAR, S/O.KRISHNA PILLAI, CHARUVILA PUTHEN VEEDU, MADAVOOR VILLAGE, PULIYARAKONAM, ARUKANJIRAM.** **2 VISHNU, S/O.GOPALAKRISHNAN NAIR, PATTATHIL VEEDU, CHANDIAYYAM, VETTUVAZHI, CHADAYAMANGALAM.** **3 PRADEEPLAL @ VAVA, S/O.SOMANATHAN PILLAI, VIMAL MANDIRAM, POREDAM, CHADAYAMANGALAM.** **BY ADVS. SHRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN RESPONDENT/RESPONDENT/STATE: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-12-2020, THE COURT ON 15-12-2020 PASSED THE FOLLOWING:** Crl.R.P.No.1781 of 2009 ..2.. ## **ORDER** The revision petitioners are the accused 1 to 3 in C.C.No.910/2003 on the file of the Judicial First Class Magistrate Court-II, Kottarakkara and the appellants in Crl.Appeal No.349/2007 on the file of the Sessions Court, Kollam. The offences alleged against the accused are punishable under Sections 143, 144, 148, 452, 324, 326 and 506(ii) read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC'). 2. The prosecution case in brief is as hereunder:- On 25.10.2002 at about 8.30 pm., the accused 1 to 8 formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object criminally trespassed into the house of PWs.1 and 2 after Crl.R.P.No.1781 of 2009 ..3.. making preparations to commit hurt with dangerous weapons like dagger and sticks and thereafter accused Nos.1 and 6 to 8 dragged PW1 from his house towards its premises and while so, the accused 2 to 5 wrongfully confined him and thereafter accused No.1 inflicted stab injuries on both his thighs and thereby his vein ruptured and had sustained deep vein injury. It is further alleged that in the very same incident, the accused 6 and 7 inflicted blows on PW2 who is the wife of PW1 and thereby she also sustained injury. 3. On the appearance of the accused, after having heard both sides, the trial court framed charge against the accused 1 to 8 for the offences under Sections 143, 144, 148, 452, 324, 326 & 506(ii) read with Section 149 of the IPC. The charge was read over to which the accused 1 to 8 pleaded not guilty. Crl.R.P.No.1781 of 2009 **==> picture [22 x 8] intentionally omitted <==** 4. During the trial, PWs.1 to 8 were examined and marked Exts.P1 to P5 on the prosecution side. On closing the prosecution evidence, the accused Nos.1 to 4 and 6 to 8 were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. On the side of the accused, Exts.D1 and D2 were marked. The 5[th] accused had absconded during the trial. Hence the case against him was refiled as C.C.No.554/2007. 5. On evaluation of the evidence, the trial court convicted the accused 1 to 3 under Sections 143, 147, 452, 324 and 326 read with Section 149 of the IPC and sentenced to undergo various counts including rigorous imprisonment for one year each for the offences punishable under Sections 326 & 452 of the IPC. Over and above, the trial court convicted and sentenced the 1[st] accused to undergo rigorous imprisonment for six months Crl.R.P.No.1781 of 2009 **==> picture [22 x 8] intentionally omitted <==** for the offence under Section 148 of the IPC. The 1[st] accused was found not guilty of the offence under Section 144 of the IPC. The accused 2 and 3 were found not guilty of the offences under Sections 144, 148 and 506(ii) of the IPC and accordingly they were acquitted thereunder. The accused 4 and 6 to 8 were found not guilty of the offences under Sections 143, 144, 147, 148, 324, 326, 452 and 506(ii) read with Section 149 of the IPC. Challenging the conviction and sentence, the accused 1 to 3 preferred Crl.Appeal No.349/2007 before the Sessions Court. By its judgment dated 31.3.2009, the learned Sessions Judge allowed the appeal in part setting aside the conviction and sentence for the offence punishable under Sections 147, 149 and 326 of the IPC and confirming the conviction and sentence imposed under Sections 324 and 452 of the IPC. Feeling aggrieved by the impugned judgments, the revision petitioners 1 to 3/accused Nos.1 to 3 preferred Crl.R.P.No.1781 of 2009 **==> picture [22 x 9] intentionally omitted <==** this criminal revision petition. 6. Heard Sri.Arjun Sreedhar, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. 7. The learned counsel for the revision petitioners Sri.Arjun Sreedhar submitted that the conviction against the accused 1 to 3 based on the interested testimony of PWs.1 and 2 alone is improper and illegal. The learned counsel further submitted that the evidence on record, both oral and documentary is silent as to any overt act on the part of the 2[nd] and 3[rd] accused which strengthens the defence case of false implication. Elaborating on the submission, the learned counsel for the revision petitioners submitted that non-recovery of weapon of assault is fatal to the prosecution and the First Information Statement in this case is silent as to the details about the overt acts on the part of the accused 1 Crl.R.P.No.1781 of 2009 ..7.. to 3. It was further submitted that non-examination of the Doctor, who had issued Exts.P3 and P4 wound certificates, is fatal to the prosecution. 8. Per contra, the learned Senior Public Prosecutor submitted that the prosecution case is supported by the evidence of PWs.1 and 2 who sustained injuries at the place of occurrence. According to the learned Public Prosecutor, both the trial court and the appellate court concurrently found that the accused committed the offences alleged and in the absence of any illegality or irregularity, the revisional court would not be interfered in revision. 9. PW1 is the husband of PW2. The occurrence in this case was on 25.10.2002 at about 8.30 pm at the residence of PW1. According to PW1, there was an altercation between him and accused Nos.2 and 3 on the day prior to the occurrence. On the date of occurrence at Crl.R.P.No.1781 of 2009 **==> picture [22 x 9] intentionally omitted <==** about 8.30 pm, while PW1 was taking rest at his home, the 2[nd] and 3[rd] accused came there along with the 1[st] accused and some other accused identifiable by sight. Thereafter, the 3[rd] accused sought the assistance of the 1[st] accused to push PW1 out of his house. The accused 1 to 3 trespassed into the house, wrongfully restrained PWs.1 and 2 and tried to push PW1 out of the house. As a result of the push and pull, PW1 fell on the floor and while so, his wife pleaded with them not to inflict injuries on her husband. However, the allegation is that the accused in prosecution of their common object dragged him from the house and the 2[nd] accused inflicted blows on him with a stick. It is also alleged that he also inflicted another blow on his wife and thereafter the 1[st] accused stabbed him on both his thighs using a dagger. Soon after the occurrence, PW1 was taken to the Medical College Hospital, Thiruvananthapuram and he underwent treatment there Crl.R.P.No.1781 of 2009 ..9.. from 25.10.2002 till 31.10.2002. According to him, he had sustained rupture of the vein as a result of the assault. PW1 identified the accused before court. 10. PW2 stated that on 25.10.2002 at about 8.30 pm, the accused criminally trespassed into her house and got in conflict with her husband. She also stated that thereafter the 1[st] accused tried to push her husband down and as a result her husband fell down on the floor. She would say that she tried her level best to prevent assault as against her husband. However, she would say that one of the assailants stabbed on the right and left thighs of her husband with a dagger. She confirmed the version of PW1 that the 2[nd] and 3[rd] accused inflicted blows on her. She was also taken to the Medical College Hospital, Thiruvananthapuram along with her husband. 11. PW3 is the daughter of PWs.1 and 2. She was not an eye witness to the occurrence. She rushed to the Crl.R.P.No.1781 of 2009 **==> picture [28 x 9] intentionally omitted <==** scene of occurrence on hearing the cry of her mother. When she reached home, she found her father lying on the ground with stab injuries on his leg. She would say that both PWs.1 and 2 were taken to the Medical College Hospital, Thiruvananthapuram by her husband. 12. PW5 is the husband of PW3. He was not an eye witness and he reached the place of occurrence immediately after the occurrence and found PW1 lying on the floor with stab injuries on his thighs. 13. PW6, the Head Constable attached to the Chadayamangalam Police Station proceeded to the Medical College Hospital, Thiruvananthapuram on getting requisite information in this regard and recorded Ext.P1 FIS of PW1. He registered Ext.P2 FIR on the strength of Ext.P1 FIS. 14. PW8, the Sub Inspector of Police, Chadayamangalam Police Station issued notice to the Crl.R.P.No.1781 of 2009 **==> picture [28 x 8] intentionally omitted <==** accused directing them to be present before the police station. The accused were shown to PWs.1 and 2 and their identification was confirmed. He completed the investigation and submitted the final report. The initial investigation was conducted by CW10. CW10 was not examined. Similarly, CW8 the Doctor, who issued Exts.P3 and P4 wound certificates, was also not examined. 15. The trial court convicted and sentenced the accused for the offences punishable under Sections 143, 147, 324, 326, 148, 149 and 452 of the IPC. The appellate court allowed the appeal in part setting aside the conviction under Sections 147, 149 and 326 of the IPC confirming the conviction and sentence imposed under Sections 324 and 452 of the IPC. The appellate court neither confirmed nor set aside the conviction under Sections 143 and 148 of the IPC. In this regard, the judgment of the appellate court is totally silent. On going Crl.R.P.No.1781 of 2009 **==> picture [28 x 9] intentionally omitted <==** through the trial court judgment, there is nothing on record to indicate that the trial court analysed the evidence regarding unlawful assembly as contemplated under Section 141 of the IPC to fasten criminal liability under Section 143 of the IPC as against the accused. 16. For an unlawful assembly, the minimum number required is five. In a case where more than five persons participated in the assembly, but the identity of the accused was not established, it cannot be said that it was an unlawful assembly. It is necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the accused had done or committed some overt acts in prosecution of a common object of the unlawful assembly. It is true that active participation in active violence is not necessary. The persons, who by words or signs or otherwise engaged in violence, are equally members of the unlawful assembly. In this case the Crl.R.P.No.1781 of 2009 **==> picture [28 x 9] intentionally omitted <==** occurrence took place at the residence of PWs.1 and 2. Admittedly, all the persons were not armed with deadly weapons. For the offence under Section 149 of the IPC, overt act by every person is not to be proved. The only thing necessary to be decided is whether the accused shared the common object of the assembly. In the case on hand, the appellate court set aside the conviction imposed against the accused for the offences under Sections 147, 149 and 326 of the IPC. However, they were convicted under Sections 324 and 452 of the IPC without the aid of Section 34 of the IPC. The operative portion of the appellate court judgment is illegal. The appellate court maintained conviction against the accused for the offences under Sections 324 and 452 of the IPC without stating anything regarding the offences under Sections 143 and 148 of the IPC. In this case, on a perusal of the entire evidence, there is nothing on record to indicate that all Crl.R.P.No.1781 of 2009 **==> picture [28 x 8] intentionally omitted <==** the accused were armed with deadly weapons. In **Suresh v. State of Kerala** [2006 (1) KLT 78], a Division Bench of this Court held that the conviction of all 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 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 an unlawful assembly. There is a distinction between the offences under Sections 146 and 148 of the IPC. The offence under Section 146 of the IPC is punishable under Section 147 of the IPC. To constitute the offence of rioting as has been defined under Section 146 of the IPC, the members of the unlawful assembly need not carry weapons, whereas a person charged with an offence under Section 148 of the IPC must be armed with deadly weapons. In this case the Crl.R.P.No.1781 of 2009 **==> picture [28 x 8] intentionally omitted <==** appellate court acquitted the accused of the offences punishable under Sections 147, 149 & 326 of the IPC. There is no specific finding regarding Sections 143 and 148 of the IPC. Necessary ingredients to attract Section 141 of the IPC are not proved in this case. 17. It is settled law that substantial evidence is the evidence of identification in court. As a general rule, the substantive evidence of a witness is the statement made in court. The purpose of prior test identification is to test and strengthen the trustworthiness of the evidence given before the court. It is accordingly considered as a rule of prudence to generally look for corroboration to establish the identification of the accused. The prosecution case itself would show that the accused 1 to 3 along with other accused identifiable by sight trespassed into PW1's house and committed the offence. In the instant case, the evidence of PWs.1 to 3 reveals that they had not actually Crl.R.P.No.1781 of 2009 **==> picture [28 x 9] intentionally omitted <==** identified the accused before the court. Regarding the identification before the court, a Division Bench of this Court in **Vayalali Girishan & others v. State of Kerala** [2016 KHC 204] held that the witnesses should specifically point out the accused by their names or specific features to individually fix each of the accused as being present at the scene of crime so that their complicity as members of an unlawful assembly in prosecution of the common object could be fixed. In the case on hand, no dock identification was made that the witnesses have specifically identified the accused as the persons who were involved in the crime so that the complicity and presence of the accused at the scene of occurrence could be fixed with exactitude. No evidence was adduced by the prosecution to prove that the accused in the dock were identified by the witnesses in an acceptable manner. In this connection it is pertinent to note that no test Crl.R.P.No.1781 of 2009 **==> picture [28 x 8] intentionally omitted <==** identification was conducted by the Investigating Officer during the investigation. Instead, the accused were summoned to the police station and they were shown to PWs.1 and 2. 18. The dagger and sticks were allegedly used by the accused to assault PWs.1 and 2. During investigation, material objects were not recovered in accordance with law. The Doctor, who issued Exts.P3 and P4 wound certificates, was not examined before the trial court. The Doctors are medical experts and their examination before the court is absolutely essential to prove the opinion evidence. In the case on hand, the Doctor was not examined to prove the wound certificate. 19. The occurrence in this case was on 25.10.2002 at 20.30 hours. However, the First Information Report was registered on 27.10.2002 at 16 hours. No plausible explanation was offered for the delay in lodging Ext.P1 FIS Crl.R.P.No.1781 of 2009 **==> picture [28 x 9] intentionally omitted <==** before the police. There were 7 accused along with three more unidentifiable accused by sight are arrayed as accused Nos.1 to 10 in Ext.P2 FIR. PW1 failed to mention all the overt acts in Ext.P1 FIS. Similarly, PWs.1 and 2 failed to identify the accused before the court in an acceptable manner. Medical evidence was also not appreciated by the court below. Further, the Investigating Officer was not examined before the trial court. Nonexamination of the Investigating Officer has prejudiced the case of the accused. Inconsistency with regard to the place of occurrence as evidenced by Ext.P5 and oral evidence of PW1 would go to show that the occurrence place had not taken place as alleged by the prosecution. The evidence on record, both oral and documentary is totally silent about the overt acts attributed to each of the accused which strengthens the defence case of false implication. Crl.R.P.No.1781 of 2009 ..19.. 20. The next question is whether any of the accused would be personally liable for the acts committed by them with the aid of Section 34 of the IPC. It is settled principle of law that even if the accused had not been charged with the aid of Section 34 of the IPC and instead charged with the aid of Section 149 of the IPC, they can be convicted with the aid of Section 34 of the IPC if evidence was adduced to prove that there was common intention to commit the crime. In the case on hand, the appellate court acquitted the accused of the offence under Section 149 of the IPC but maintained conviction under Sections 324 and 452 of the IPC. In this case, the presence of all the accused was not established. The Doctor who treated the injured and the Investigating Officer who recorded the statements of the witnesses during investigation were not examined. The accused did not get an opportunity to contradict the statements of the witnesses elicited during Crl.R.P.No.1781 of 2009 ..20.. cross-examination to the Investigating Officer. The weapon of assault by the accused had not been recovered and produced before the court. The trial court found that the accused 1 to 3 were present at the scene of occurrence. However, the trial court found that the presence of the accused 4 to 8 was not proved in evidence. Without proving the participation of other accused, the trial court convicted accused Nos.1 to 3 with the assistance of Section 149 of the IPC. This is apparently unsustainable. Regarding the presence of the accused 1 to 3, the evidence on record both oral and documentary is silent as to any overt act on the part of the accused 2 and 3. Inconsistencies and contradictions in the evidence of PWs.1 and 2 as to the manner in which the alleged occurrence took place with reference to Ext.P5 scene mahazar would indicate that the occurrence was not taken place as alleged by PWs.1 and 2. Crl.R.P.No.1781 of 2009 ..21.. 21. Both the trial court and the appellate court erroneously appreciated the evidence on record and wrongly convicted and sentenced the accused. The revision petitioners/accused Nos.1 to 3 are found not guilty of the offences punishable under Sections 143, 148, 324 and 452 of the IPC and accordingly they are acquitted thereunder. Resultantly, the criminal revision petition is allowed. The revision petitioners/accused Nos.1 to 3 are set at liberty. In case any fine amount is deposited by the revision petitioners/accused Nos.1 to 3 during the pendency of the revision, the same shall be refunded to the revision petitioners/accused Nos.1 to 3 in accordance with law. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj