Vijayan @ Radhakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 20TH DAY OF DECEMBER 2016/29TH AGRAHAYANA, 1938** ## **CRL.A.No. 1068 of 2016 ()** **--------------------------** **AGAINST THE JUDGMENT IN SC 800/2004 of ADDITIONAL SESSIONS COURT-II, MAVELIKKARA DATED 09-07-2014** **AGAINST THE ORDER/JUDGMENT IN CP 46/2003 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM CRIME NO. 254/2002 OF KAREELAKULANGARA POLICE STATION , ALAPPUZHA** **APPELLANT/4TH ACCUSED:** **------------** **VIJAYAN @ RADHAKRISHNAN AGED 45 YEARS, S/O. P. RADHAKRISHNAN** **KARIMBINTHARAYIL HOUSE, VADAKKUM MURI, KANNAMANGALAM VILLAGE MAVELIKKARA TALUK, ALAPPUZHA** **BY ADVS.SRI.RASHEED C.NOORANAD SMT.ANITHA M.N. (EKM) SRI.K.A.ABDUL NAZAR KUNJU** ## **RESPONDENT/COMPLAINANT(S):** **--------------** ## **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SHG/ ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No.1068 of 2016 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2016** ## **J U D G M E N T** ## **Jyothindranath, J.** This appeal is preferred against the judgment in S.C.No.800/2004 on the file of the Additional Sessions Court-II, Mavelikkara. The facts of the case rather history of the case relevant for consideration of this appeal is as follows: The appellant is the 4[th] accused in S.C.No.800/2004 on the file of the Additional Sessions Court-II, Mavelikkara. The offence alleged against the accused were under Sections 143, 144, 147, 148, 324, 326, 307 and 302 r/w. Section 149 of IPC and also under Section 27 of the Arms Act. Originally ten accused were charge sheeted in crime No.254/2002 of Kareelakulangara Police Station. After filing the charge, the 10[th] accused died. The charge against him got abated. Originally the case was tried and the court by its judgment dated 22.9.2008 convicted accused No.1 2 Crl. Appeal No.1068 of 2016 under Sections 143, 144, 147, 148, 324, 326 and 302 IPC r/w. Section 149 of IPC and accused Nos.4, 6 and 7 were found guilty for offences punishable under Sections 143, 144, 147, 148, 324, and 326 r/w. Section 149 of IPC, but found not guilty for offences punishable under Section 302 r/w. Section 149 of IPC. The court also found that accused Nos.5, 8 and 9 are not guilty of any of the offences charged against them. It can be further seen that accused Nos.2 and 3 in the original case were absconding. The case against them was split up and renumbered. Against the said conviction and sentence, accused No.1 filed Criminal Appeal No.2705/2008 before this court. Accused Nos.4 and 6 filed Crl.A.No.2187/2008 whereas accused No.7 filed Crl.A.No.2253/2008. By the judgment dated 19.02.2014, this court directed to register suo motu criminal revisions against accused Nos.4, 6 and 7 who were the appellants in Crl.A.Nos.2187/2008 and 2253/2008. Thereafter after registering the suo motu criminal revision petitions by the judgment dated 20.2.2014, this court disposed of 3 Crl. Appeal No.1068 of 2016 Crl.A.Nos.2187/2008 and 2253/2008 as well as Crl.R.C.Nos.1, 2 and 3 of 2014 by a common judgment dated 20.02.2014. As per the said common judgment liberty was given to the appellants to file fresh appeals in respect of the convictions already passed by the court below and at the same time the matter stood remanded to the court below for fresh disposal in respect of the offence punishable under Section 302 of IPC r/w. Section 149 of IPC. In otherwords, the finding in respect of the offence under Section 302 r/w. Section 149 of IPC was set aside and the matter was remanded to the court below for fresh disposal in respect of the said offence and permitted the accused to remain on bail on orders already passed. It is also evident that Crl.A.No.2705/2008 was not disposed of along with the said appeals, but kept in abeyance. 2. After remand, the trial court again considered the charge against the accused in respect of a criminal liability under Section 302 of IPC r/w. Section 149 of IPC and by its judgment dated 09.07.2014 accused Nos.4, 6 and 7 in the 4 Crl. Appeal No.1068 of 2016 original case were convicted by the trial court for the said offence. Aggrieved by the above said conviction and sentence, accused Nos.6 and 7 preferred Crl.A.Nos.1057/2014 and 1351/2014 respectively. At that point of time, A4 had not preferred any appeal. As no judgment was passed by this court in Crl.A.No.2705/2008 as stated above, the above referred two appeals filed by accused Nos.6 & 7 were considered along with Crl.A.No.2705/2008 and by a common judgment dated 29.09.2016 this court acquitted all the accused i.e. accused No.1 and accused Nos.6 & 7. Now, accused No.4 who was convicted by the trial court originally for major offences under Sections 326 and 324 of IPC read with Section 149 of IPC and then, after remand stands convicted under Section 302 r/w. Section 149, preferred this Crl.A.No.1068/2016 along with a delay condonation petition also on the strength of liberty given to him as per the judgment whereby his earlier appeal against the conviction other than one under Section 302 r/w. Section 149 of IPC was disposed of. The 5 Crl. Appeal No.1068 of 2016 said delay in filing the appeal was condoned and the appeal was admitted. 3. By the original judgment of the trial court, accused Nos.5, 8 and 9 were acquitted. Now by the judgment of this court referred above, accused Nos.1, 6 and 7 were acquitted. The challenge is against the conviction of the appellant by the trial court. The main argument advanced before this court is that as per the charge a definite number of persons viz., ten were shown by the prosecution as accused. Now after the trial, six among them were acquitted by the courts. The said judgments became final. It is the case that the cases against two persons were abated. Now, the trial against two persons are pending. When the definite case of the prosecution is that a definite number of persons i.e. ten persons were involved in the crime and there was a finding that six among them were not guilty as they were not part of a common assembly, conviction of the appellant under Section 302 of IPC usurping Section 149 of IPC is absolutely unsustainable. 6 Crl. Appeal No.1068 of 2016 4. The next argument advanced before us is that when Section 302 of IPC is taken away, at the most a conviction either under Section 326 of IPC or under Section 324 of IPC, alone will lie. At the same breathe it is submitted that the overt act alleged against the appellant/accused herein and the corresponding injury will show that the case against the appellant is false and no conviction will lie against him. On this short submission, we perused the records in this case. We have also called the records in Crl.A.No.2705/2008 of this court. We have perused the judgment dated 29.09.2016 made in Crl.A.2705/2008 and the connected appeals i.e. Crl.A.Nos.1057/2014 1351/2014. On such perusal it is revealed that the accused No.1, 6 and 7 were acquitted by the said judgment by this court. We have also perused the court charge in this case. The relevant portion of the court charge i.e. relating to this appellant/accused is as follows: “Lastly, that you on the same day time and place of occurrence in prosecution of your common object of causing the death of CWs 1 to 3 and also in prosecution of Crl. Appeal No.1068 of 2016 7 your common object of causing simple and grievous injuries to them at the aforesaid place of occurrence, A1 after uttering loudly 'kill them by cutting' when CW2 interfered and obstructed you from attacking Sreekumar, A2 cut him with a dangerous chopper 3 times on his left shoulder, left upper arm causing fracture of bone of left hand, A4 cut him with a dangerous sword above his right eyebrow and head and when CW1 interfered and obstructed you from attacking, A1 cut him with a dangerous sword on the left side of his head. A4 cut him with a dangerous sword on his head above right ear and when CW3 interfered and obstructed, A7 hit him with a Nanjack on his right shoulder and back 3 times. A3 beat him with a dangerous iron rod on his left forearm and causing fracture of bone of left hand, A3 beat CW2 with a dangerous iron rod twice on his back, A6 beat him with a dangerous iron rod above his right elbow and right forearm and causing fracture of bone of right hand. A1 cut CW2 with a dangerous sword on his left foot, above left foot, below left knee and above left knee causing injury on the bone of left leg. A7 hit with a Nanjack on the right foot of CW2, A8 beat CW2 with a dangerous iron rod on his back twice, A9 beat CW3 with an iron rod on the left side of neck, head and right upper arm. A10 beat CW3 with a dangerous iron rod on his right cheek and when CW1 attempted to escape by running by crying 'save him', A1 stabbed him with the tip of a dangerous sword above his left knee, A4 cut him with a dangerous sword on his right palm, A3 beat him with a dangerous iron rod on his left shoulder and right forearm causing fracture to the bone of right hand. A7 hit him with a dangerous Nanjack on his right rib, back and right cheek thereby inflicted simple and grievous injuries to CWs 1 to 3 and attempted to kill them and thereby committed offences punishable U/Ss 324, 326 and 307 r/w. 149 of IPC.” 5. Thus it can be seen that the allegation against accused No.4 as per the charge is that A4 cut CW2 with a dangerous sword on his head above right eyebrow and 8 Crl. Appeal No.1068 of 2016 when CW1 interfered and obstructed A7 hit him with a nanjack on his right shoulder and on back. A4 cut with a dangerous sword on his head above right ear and also on the palm. This is the overt act alleged against this appellant as per the charge. 6. In this case one Sreekumar died in the incident. As per the prosecution case, along with the deceased Sreekumar, PW1 to PW3 were present. It can be seen that, out of the 10 charged accused, six were already acquitted. When six accused were not found guilty and only a definite number of persons viz., ten alone were charged by the court, as against the remaining four persons, a conviction with the aid of Section 149 of IPC will not lie. In paragraph 84 of the impugned judgment in S.C.No.800/2004, the trial court observed as follows: “x x x In the instant case though accused No.4, 6 and 7 did not committed any specific overt acts on the deceased, their active participation in the incident and that too by inflicting injuries on PWs1 to 3 who tried to obstruct the accused by name Prasanthan, Crl. Appeal No.1068 of 2016 9 Prabhakaran and Prasad from attacking the deceased would reveal that they committed the acts in prosecution of the object for which they had assembled.” From the conclusion arrived at by the trial court itself, it can be seen that accused Nos.4, 6 and 7 had not inflicted any injury on the deceased i.e. no overt act was found by the trial court on the part of accused Nos.4, 6 & 7 towards the deceased. 7. When there is a finding to the effect that, out of the 10 charged accused, six were acquitted, the remaining number will only be four. The corollary is that an unlawful assembly as contemplated under Section 141 of the I.P.C. cannot be formed when the number of the accused are only four in number. Thus, by the aid of Section 149 of IPC, a conviction will not lie. It is to be remembered that originally the appellant herein was acquitted by the trial court for an offence under Section 302 of IPC. After taking suo motu revision by this court, a specific direction was given to the trial court to find whether they were part of an unlawful assembly with common object to murder. After remand, 10 Crl. Appeal No.1068 of 2016 trial court found that accused No.4, 6 and 7 are part of an unlawful assembly and they were vicariously liable for an offence under Section 302 of IPC. It is to be remembered that the court charge will show that the first accused inflicted the fatal injuries on the deceased. The said accused was seen acquitted by this court by its judgment dated 29.09.2016 in Crl.A.No.2705/2008 as referred above. Thus, what comes out is that a conviction under Section 302 of IPC r/w. Section 149 of IPC against this appellant will not lie. 8. Now, the next question is in respect of the conviction under Section 326 of IPC. In this regard, we perused the evidence of PW1. The portion of his evidence relevant for consideration of this appeal is as follows: A4 Vijayan Õ¿ßÕÞZ Õºîí ®æa ¥ºîæa ÄÜÏíAá æÕGß. A4 æÕGá æµÞIá. Õ¿ßÕÞZ Õºîí ®æa §¿ÄáµÞÜßW ÎáGßÈí Îáµ{ßW µáJß. These are the two overt acts deposed to by PW1 Sreedevan. Thus as per the evidence of PW1 the appellant 11 Crl. Appeal No.1068 of 2016 herein (A4) had inflicted injury on his knee area and also inflicted injury on the head of his father. As per the evidence of PW15, PW1 sustained the following injuries: 1. incised wound 3x1/2x1/2 cm forehead. 2. incised wound 2x1/2x1/2 cm scalp right side. 3. Fracture left hand. Thus, corresponding to the allegation that accused No.4 inflicted an injury on the knee with a sword stick cannot be seen in Ext.P23, the wound certificate of PW1. Now his evidence regarding the infliction of injury on the father of this witness is that he inflicted an injury on his head. The father of PW1 was examined as PW2 before the court. As per the wound certificate i.e.Ext.P24, PW2 sustained the following injuries: 1. incised wound 6x2x1 cm left shoulder 2. compound fracture left upper arm 3. compound fracture right forearm 4. incised wound 1x1/2x1/2 cm left leg 5. Suspected fracture of left leg 12 Crl. Appeal No.1068 of 2016 Here, there is no injury on the head area. If that is so, the overt act or the injury allegedly inflicted by the appellant herein will not be corroborated by Ext.P24 wound certificate. We have also perused the evidence of PW2 in respect of the overt act against the appellant/accused herein. After the identification of the appellant herein from the court, at first the witness made a blanket allegation against the accused in the court. The evidence regarding specific overt act of this appellant is also not corroborating the evidence of PW1 regarding the overt act of the appellant herein. On appreciating the evidence, it can be seen that the court charge in respect of this appellant/accused is not seen proved. 9. Thus, when accused No.1, 5, 6, 7, 8 and 9 were acquitted by the court, there cannot be an unlawful assembly as alleged by the prosecution. This stand is fortified by the dictum laid down by our Apex Court in **Amar Singh v. State of Punjab [AIR 1987 SC 826]** wherein the relevant paragraphs 7 & 8 are as follows: Crl. Appeal No.1068 of 2016 13 “7. In assailing the judgment of the High Court, the first point that has been urged by Mr. Frank Anthony, learned counsel appearing on behalf of the appellants Nos. 1 and 2, is that the conviction of the appellants under sections 148 and 149 IPC is bad inasmuch as of the seven accused, the trial court had acquitted two of them, namely, Amar Singh and Rattan Singh, both sons of Isher Das, and the High Court acquitted the accused Bachan Singh. It is submitted that after the acquittal of the three accused persons out of seven, the appellants who are the remaining four, cannot be held to have formed an unlawful assembly within the meaning of section 141 IPC and, accordingly, the charges under sections 148 and 149, IPC were not at all maintainable. 8. In our opinion, there is much force in the contention. As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141, IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or Section 149, IPC for any offence, for, the first condition to be fulfilled in, designating an assembly an "unlawful assembly" is that such assembly must be of five or more persons, as required under section 141, IPC. In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained.” 10. The same dictum is also seen laid by the Apex Court in **Jeevanlal & Others** v. **State of M.P.** Reported in **(1997) 9 SCC 190** . Thus, summarising the above findings it can be seen that in this case, originally, there were 10 accused. Among the 10 accused the charge against two accused were abated. By the original judgment dated 14 Crl. Appeal No.1068 of 2016 22.9.2008 the trial court acquitted accused Nos.5, 8 and 9. Thereafter, by the judgment dated 29.9.2016 in Crl.A.No.2705 of 2008 this Court acquitted accused Nos.1, 6 and 7. Thus, altogether, six accused were acquitted by the courts. The remaining persons were only four in number. Among the same, the charge against two accused were abated. Thus, the only two accused remaining to be tried are accused Nos.2 and 3. When out of the ten accused, six accused were acquitted, the remaining number will be only four. When there is a definite number of accused and based on the acquittal the number falls below five there cannot be a conviction by the aid of Section 149 of the Indian Penal Code as per the dictum laid in the decisions cited (supra). Thus, a conviction under Section 302 read with Section 149 IPC will not lie. Hence, the appellant herein is entitled for an acquittal for the offence under Section 302 read with Section 149 IPC. Thus, appellant is acquitted of the said charge. The remaining question to be considered is whether a conviction under 15 Crl. Appeal No.1068 of 2016 Section 326 of IPC will lie for any overt act allegedly done by this appellant. By appreciating the evidence of PW1 before the court it can be seen that there is no corresponding injury on the body of PW1 allegedly inflicted by the appellant herein. When the oral evidence is not corroborated by medical evidence and further when the first accused who was allegedly inflicted fatal injuries against the deceased was acquitted by this Court by appreciating the evidence of PWs 1, 2 and 3 it can be only held that the prosecution failed to prove the offence under Section 326 IPC or under Section 324 of IPC, as alleged against the appellant herein. If an offence under Section 326 or 324 IPC is not made out then the corollary is that the appellant is entitled for an acquittal for all the offences charged against him. 11. The appeal is hereby allowed setting aside the conviction and sentence imposed by the Additional Sessions Court-II, Mavelikkara in S.C.No.800 of 2004 against the appellant - Vijayan @ Radhakrishnan, S/o.P.Radhakrishnan, 16 Crl. Appeal No.1068 of 2016 Karimbintharayil House, Vadakkum Muri, Kannamangalam Village, Mavelikkara Taluk, Alappuzha, who is accused No.4 in the original accused array. Thus, he is acquitted of the offences under Sections 143, 144, 147, 148, 324, 326 and 302 read with Section 149 of the Indian Penal Code. The appellant/accused No.4 shall be released forthwith, if his detention is not required in connection with any other case. Registry is directed to transmit the gist of the judgment to the Superintendent of the prison concerned to comply with the directions contained in the judgment. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR** **K.P. JYOTHINDRANATH** **JUDGE** //True copy// P.A. TO JUDGE shg/TKS