Kerala High Court
Abdul Hashim vs State Of Kerala on 4 June, 2025
CRL.A NO. 1883 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
WEDNESDAY, THE 4 DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
CRL.A NO. 1883 OF 2007
AGAINST THE JUDGMENT DATED 11.09.2007 IN SC NO.444 OF 2002 OF
ADDITIONAL SESSIONS JUDGE FAST TRACK - III, THIRUVANANTHAPURAM (CP NO.107
OF 2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATTINKARA IN CRIME
NO.315/1998 OF NEMOM POLICE STATION)
APPELLANT/1ST ACCUSED:
ABDUL HASHIM
CHEKKITTAVILA VEEDU,KARAKKAMANDAPAM,,
MANUKULADICHAMANGALAM DESOM, NEMOM,THIRUVANANTHAPURAM.
BY ADV SRI.THIRUMALA P.K.MANI
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA,ERNAKULAM.
OTHER PRESENT:
SR PP RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.06.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1883 OF 2007
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2025:KER:39154
CR
A. BADHARUDEEN, J
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Crl.Appeal No. 1883 of 2007
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Dated 04th day of June 2025
JUDGMENT
This Criminal Appeal has been filed under Section 374(2) of the Code of Criminal Procedure by the 1st accused in CC No.444 of 2002 arising out of Crime No. 315 of 1998 of Nemom police station, challenging the conviction and sentence imposed against the appellant as per judgment dated 11.09.2007.
2. Heard the learned counsel for the 1st accused/appellant as well as the learned Public Prosecutor in detail. Perused the case records.
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3. For effective and easy discussion, the parties in this appeal will be referred to as 'prosecution' and 'accused' hereafter.
4. The prosecution case is that, on 06.12.1998, a hartal was organized by a political party, and while the said hartal was in progress, accused Nos.1 to 7 formed themselves into an unlawful assembly knowing that they are all members of the said assembly, to commit crime, and thereafter in prosecution of their common object, they assembled at 08.30 p.m., in Karakkamandapam and pelted stones against the bus driven by PW1, which was owned by the Government of Tamil Nadu. The prosecution allegation further is that, due to pelting of stones, the front glass of the bus was broken, and due to contact with the broken glass, PW1 sustained CRL.A NO. 1883 OF 2007 4 2025:KER:39154 injuries on his face and right clavicle. That apart, the Tamil Nadu Government sustained a loss of Rs.16,000/- due to breakage of the glass of the bus. On this premise, the prosecution alleged commission of offences punishable under Sections 143, 147, 148, and 333 r/w 149 of the IPC as well as Section 3(a)(e) of the PDPP Act, by accused Nos. 1 to 7.
5. When the matter was committed to the Court of Session, Thiruvananthapuram, the same has been made over to the Additional Sessions Court Fast Track - III, Thiruvananthapuram, for trial and disposal. The Additional Sessions Judge framed charge for the said offences and tried the matter. PWs 1 to 9 were examined, Exts. P1 to P12, and MOs 1 and 2 series were marked on the side of CRL.A NO. 1883 OF 2007 5 2025:KER:39154 the prosecution. Thereafter, the accused was questioned under Section 313(i)(b) of the Cr.P.C. and explained all the incriminating circumstances against him brought in evidence. Although the accused was then provided with opportunity to adduce defence evidence, he did not adduce any defence evidence. Later, on appreciation of evidence, the trial court found that the 1st accused committed offences punishable under Sections 143, 147, 148, and 333 r/w 149 of IPC as well as Section 3(2)(e) of the PDPP Act, and accordingly, he was sentenced as under:-
"The 1st accused is sentenced to undergo rigorous imprisonment for 3 months u/s 143 of IPC, rigorous imprisonment for 6 months u/s 147 of the IPC, CRL.A NO. 1883 OF 2007 6 2025:KER:39154 rigorous imprisonment for one year u/s 148 of the IPC, rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- in default to undergo further period of imprisonment for 6 months u/s 333 of the IPC r/w 149 of the IPC and to undergo rigorous imprisonment for 6 months and to pay fine of Rs.2,000/- in default to undergo further period of imprisonment for 3 months u/s 3(2)(e) of P.D.P.P. Act r/w 149 of IPC. Substantive sentences shall run concurrently. Set off allowed from 17.12.1998 to 16.12.1998."
The trial court acquitted Accused Nos. 2 and 4 to 7 by giving them benefit of the doubt, while refiling the case of the 3rd accused. CRL.A NO. 1883 OF 2007 7 2025:KER:39154
6. It is pointed out by the learned counsel for the 1st accused that, in order to prove the occurrence, PW1 -- the injured, who is the driver of the bus alleged to have been attacked by the accused, was examined. That apart, PWs 2 and 3, two more eyewitnesses, also were examined, but they turned hostile to the prosecution. It is pointed out by the learned counsel for the 1st accused that on scanning the evidence of PW1, he had spoken about the occurrence, but during cross-examination, he failed to segregate the overt acts at the instance of the accused persons with certainty. According to the learned counsel for the 1st accused, the evidence of PW1 is to the effect that someone from the mob pelted stones at the bus, and the front glass of the bus was broken. But in the evidence of PW1, he CRL.A NO. 1883 OF 2007 8 2025:KER:39154 did not specify who pelted stones against the bus; instead, his evidence is that stones were pelted by one among the accused (Nos. 1 to 7). According to the learned counsel for the 1st accused, relying on this evidence, the trial court acquitted accused Nos. 2 and 4 to 7 for want of proof of the overt acts against them. But the trial court, relying on the same evidence of PW1, without specifying the overt acts committed by the 1st accused and without identifying the 1st accused as the person who pelted stone, wrongly convicted and sentenced the 1st accused. Therefore, the verdict under challenge would require interference, and the 1st accused would deserve acquittal.
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7. Whereas the learned Public Prosecutor supported the prosecution case, while conceding that the evidence of PW1 did not disclose the specific overt acts of the 1st accused after identifying him.
8. Addressing the contentions, the points that arise for consideration are as follows:-
1. Whether the trial court is justified in holding that the 1st accused committed offence punishable under Section 143 r/w 149 of the IPC?
2. Whether the trial court is justified in holding that the 1st accused committed offence punishable under Section 147 r/w 149 of the IPC?
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3. Whether the trial court is justified in holding that the 1st accused committed offence punishable under Section 148 r/w 149 of the IPC?
4. Whether the trial court is justified in holding that the 1st accused committed offence punishable under Section 333 r/w 149 of the IPC?
5. Whether the trial court went wrong in finding commission of offence under Section 3(2) (e) of the PDPP Act by the 1st accused.
6. Is it necessary to interfere with the verdict of the trial court?
7. The order to be passed?
CRL.A NO. 1883 OF 2007 11 2025:KER:39154 Point Nos 1 to 6:-
9. In this case, as pointed out by the learned counsel for the 1st accused as well as the learned public prosecutor, direct evidence in this case is confined to that of PW1 alone, since the independent witnesses examined as PWs2 and 3 turned hostile to the prosecution.
PW1 is the de facto complainant and the injured, who had driven bus bearing registration No. T.N 74 - No. 9583 at the time of occurrence. He deposed that 06.12.1998 is the date of occurrence, and at the time of occurrence, he was driving the bus from Nagercoil towards Thiruvananthapuram. When the vehicle reached about 06.30 pm in Karakkamandapam, 7 to 8 persons pelted stones in front of the bus, and the front wind glass of the bus was broken. As CRL.A NO. 1883 OF 2007 12 2025:KER:39154 a consequence thereof, he sustained injury on his face when he came into contact with the glass pieces. Thereafter, he parked the vehicle, and subsequently, he was taken to the Medical College Hospital by the police. He also identified A1, 2, and 4 to 7 present before the court as the persons who pelted stones at the bus. He further deposed that he identified the accused from the headlight of the bus and also from the light available from the streetlight. Further, he deposed that after pelting stones, the accused ran towards north. That apart, he deposed that due to the act of the accused, the performance of his duty was obstructed and a loss of Rs.7,000 was caused to the Government of Tamil Nadu. He admitted that he had given Ext.P1 FIS, and he identified MO1 as the granite stone pelted CRL.A NO. 1883 OF 2007 13 2025:KER:39154 against the bus, and also identified MO2 series broken pieces of windscreen glass of the bus.
10. During cross-examination of PW1, it was deposed by PW1 that he could not say who pelted stones, and it was done by somebody among the accused. PWs2 and 3, the occurrence witnesses turned hostile to the prosecution as already observed. PW4 is the Doctor who examined PW1 and issued Ext.P4 wound certificate showing fracture of the middle third of the clavicle and abrasion on the right clavicle to PW1, and he deposed in support of prosecution. and opined that the injuries could be caused as alleged. PW5, the constable who was on GD charge, Nemom police station, as on 06.12.1998, recorded Ext.P1 FIS given by PW1 and registered CRL.A NO. 1883 OF 2007 14 2025:KER:39154 Ext.P5 FIR also supported prosecution. PW4 was additionally examined to prove the mahazar marked as Ext.P6. However, PW4 did not support Ext.P6, though he admitted his signature in Ext.P6, stating that it was signed at the police station. It is true that MOs1 and 2- rock stones, and series of broken glasses were recovered from the place of occurrence. PW7- the Investigating Officer also supported the prosecution.
11. In the instant case, it is strange to note that after having found by the trial court that the offences alleged against accused Nos. 2 as well as 4 to 7 were failed to be proved by the prosecution beyond reasonable doubts, and after acquitting them, giving the benefit of doubt, the learned Sessions Judge found commission of CRL.A NO. 1883 OF 2007 15 2025:KER:39154 offences punishable under Sections 143, 147, 148, 333 r/w 149 of IPC as well as Section 3(2)(e) of the PDPP Act by the 1st accused alone. It is interesting to note that the evidence of PW1, if taken together, could not suggest that the 1st accused pelted stones to the bus and he had familiarity with the 1st accused. In fact, the learned Sessions Judge acquitted accused Nos.2 and 4 to 7 after refiling the case against the 3rd accused, who was not available for trial, merely finding that by the evidence of PW1 the allegations against them not proved. But the learned Sessions Judge, relying on the same evidence, found that the 1st accused committed the offences.
12. On going through the evidence of PW1 on par with the arguments advanced by the learned counsel for the 1st accused, it is CRL.A NO. 1883 OF 2007 16 2025:KER:39154 discernible that, in fact, the role of 1st accused was not specifically stated by PW1, and the evidence in toto would show that somebody among the accused pelted stones against the bus and in consequence thereon, the front glass of the bus was broken; and in turn he sustained injuries. Regarding the identity of the accused, PW1, who had no prior familiarity with the accused, did not tender any positive evidence to establish the same.
13. It is the settled principle of law that when on appreciation of the same evidence, benefit of doubt is extended to some among the accused or one among the accused, it is not permissible to find commission of offence by the other accused relying on the very same evidence. To put it differently, if the trial court grants the benefit of CRL.A NO. 1883 OF 2007 17 2025:KER:39154 doubt to one of the accused based on common evidence, such benefit should ordinarily be extended to all similarly placed accused persons without discrimination. Thus, in the instant case, the trial court committed fundamental error in not applying the said principle. It is also relevant to note that without junction of other accused, the trial court wrongly found that the 1st accused alone committed offences punishable under Sections 143, 147, 148, 333 r/w 149 of the IPC. Thus, the verdict is found to be unsustainable, and therefore, the same requires interference.
14. In the result, this appeal succeeds and is accordingly allowed. Conviction and sentence imposed by the trial court against the 1st accused/appellant for the offences punishable under Sections CRL.A NO. 1883 OF 2007 18 2025:KER:39154 143, 147, 148, 333 r/w 149 of IPC as well as Section 3(2)(e) of the PDPP Act stand set aside and the accused is acquitted for the said offences. His bail bond stands cancelled, and he is set at liberty forthwith.
Registry is directed to forward a copy of this judgment to the trial court for information.
Sd/-
A.BADHARUDEEN, JUDGE
RMV