Kerala High Court
K.Murali vs State Of Kerala on 28 February, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935
CRL.A.No. 402 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 514/2001 of III ADDL. ASST.SESSIONS COURT,
KOZHIKODE, DATED 28-02-2003
APPELLANT(S)/ACCUSED:
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1. K.MURALI, S/O. SANKARAN,
KAKKADATH HOUSE, BYEPORE, CALICUT.
2. K.T.SUMEESH, S/O. ARAVINDAKSHAN,
ATHOLIPARAMBU, BYEPORE, CALICUT.
3. K.T.SUBHASH S/O. ARAVINDAKSHAN,
ATHOLIPARAMBU, BYEPORE, CALICUT.
4. SANTHOSH S/O. SANKARAN, CHOLAYIL,
BYEPORE, CALICUT.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SRI.C.S.SUNIL
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No.402 of 2003
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Dated this the 19th day of November, 2013.
J U D G M E N T
This appeal is directed against the judgment dated 28.2.2003 of the court of IIIrd Additional Assistant Sessions Judge, Kozhikode, in S.C.No.514/01 at the instance of accused nos.5, 6, 7 and 12 in the very same sessions case, as they are convicted and sentenced for the offence under section 436 r/w 34 of IPC.
2. The prosecution case is that out of political animosity, the accused-30 in numbers formed themselves into an unlawful assembly at about 11.15 a.m. on 12.4.1999 and in furtherance of their common object of setting fire to the house of Pws.5 and 8, the accused reached there armed with deadly weapons like sickle, iron rod, sticks and destroyed their house and thereafter set fire to the said house, as a result of which, the house and household 2 Crl.A.No.402 of 2003 articles were reduced into ashes and they done the above act knowing that they are members of unlawful assembly and thus according to the prosecution, the accused-30 in numbers have committed the offences under sections 143, 147, 148, 436, r/w 149 of IPC.
3. With the above allegation, Crime No.51/99 was registered in the Beypore Police Station. On completing the investigation, report was filed in the court of Judicial First Class Magistrate-I, Kozhikode and subsequently by order dated 31.1.2001, the learned Magistrate committed the case to the Sessions court, wherein S.C.No.514/01 was instituted and subsequently made over to the present trial court for disposal. Thus, when the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the above accused for the offences punishable under sections 143, 147, 148, 436 r/w 149 of IPC and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty and consequently the trial was proceeded further, 3 Crl.A.No.402 of 2003 during which, Pws.1 to 10 were examined and Exts.P1 to P6 were marked from the side of the prosecution. M.Os.1 to 26 were identified as materials objects. After questioning the accused under section 313 and at the time of defence evidence, Exts.D1 to D4 documents were produced and Dws.1 and 2 were examined.
4. On the basis of the evidence and materials on record and considering the arguments advanced, the learned Judge has formulated the following points for his consideration :
"1. Whether the house and household articles of PW5, Ananthavally were destroyed by the accused by fire as alleged on 12.4.1999 ?
2. For that purpose whether they formed themselves into an unlawful assembly rioting armed with deadly weapons and committed the mischief in furtherance of their common object ?
3. Whether every accused intentionally joined the unlawful assembly knowing that they are the members of it ?
4. What offence they committed and punishment to be imposed ?"
Finally by the impugned judgment, the trial court has found 4 Crl.A.No.402 of 2003 that only 4 persons, out of the 30 accused who faced the trial, were involved in the incident and accordingly the learned Judge has found that Sections 143, 147, 148 and 149 of IPC will not attract in this case, but only Section 34 of IPC will attract and consequently held that the accused have committed the offences in prosecution of their common intention. Thus point no.1 found in favour of the prosecution and against accused nos.5 to 7 and 12 and point nos.2 and 3 were found against the prosecution. On the basis of the above finding, the learned Judge further found that accused nos.5 to 7 and 12 are guilty of having committed the offence under section 436 r/w 34 of IPC and accordingly they are convicted thereunder. Whereas, accused nos.1 to 4, 8, 9, 10, 11 and 13 to 30 are acquitted as they are not found guilty of having committed any of the offences charged against them and accordingly they are acquitted. On conviction, accused nos.5 to 7 and 12, who are the appellants herein, are sentenced to undergo rigorous imprisonment for a period of 8 years and to pay a 5 Crl.A.No.402 of 2003 fine of `10,000/- each for the offence under section 436 r/w 34 of IPC and in default of payment of fine, they are directed to undergo simple imprisonment for a further period of one year each. It is the above finding and order of conviction and sentence, imposed against the above accused who are the appellants herein, are challenged in this appeal.
5. I have heard Adv.Sri.P.S.Sreedharan Pillai, learned counsel for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.
6. The investigation agency in the present case was set in motion on the basis of Ext.P1 FIS given by PW1 which was recorded by PW9-the then Head Constable attached to Beypore Police Station who in turn registered Ext.P3 FIR in the above crime. To prove the incident, the prosecution has cited and examined Pws.1, 2, 3, 4 and 5. PW6 is an attestor to the scene mahazar, which was marked as Ext.P2 through the said witness. As I indicated earlier, Ext.P3 FIR was registered through PW9. The further investigation was 6 Crl.A.No.402 of 2003 undertaken by PW10-the then Assistant Sub Inspector of Police of Beypore Police Station. Ext.P4 property list with respect to the material objects seized by PW10 when he prepared Ext.P2 scene mahazar, Ext.P5 ownership with respect to the house in question and Ext.P6 site plan about scene of crime were marked through PW10.
7. In this juncture it is relevant to note that the trial court after appreciating the evidence of Pws.1 to 3 found that their evidence cannot be believed, for which the learned Judge has already assigned numerous reasons. The learned Judge was reluctant to accept the evidence of Pws.1 to 3 and hence found that, except Section 436 of IPC, the other offences charged against the accused are not attracted. Suffice to say, against the acquittal of the accused, particularly the appellants herein who are accused nos.5, 6, 7 and 12, with respect to other offences, the State has not filed any appeal. It is also pertinent to note that against the acquittal of the other accused as well, the State has not filed any appeal. Thus the findings of the court 7 Crl.A.No.402 of 2003 below and the order of acquittal recorded by it, as per the impugned judgment, became final.
8. Going by the evidence on record and on a perusal of the impugned judgment it appears that the learned Judge in support of his finding and for convicting the present appellants, has mainly relied upon the evidence of PW4, particularly when the learned Judge was not inclined to act upon the evidence of other occurrence witnesses cited and examined by the prosecution.
9. Though the trial court disbelieved Pws.1 to 3 and convicted the appellants mainly relying upon the evidence of PW4, for a proper disposal of this appeal, according to me, the evidence and materials on record which are relevant for the purpose of present appeal, need a close scrutiny. As I indicated earlier, the crime was initiated at the instance of PW1, who is none other than the brother of PW5, and also a resident and co-owner of the house in question at the relevant point of time. According to PW1, he had seen the occurrence and identified accused nos.5, 6, 8 Crl.A.No.402 of 2003 7 and 8 as the persons who took part in the commission of offence, but the court below was not prepared to accept the evidence of PW1. It is came out in evidence that though the alleged incident was taken place at 11.15 a.m. on 12.4.1999, PW1 launched Ext.P1 FI statement only at 8 p.m. on the same date. During the examination of PW1, he had admitted categorically that his tailor shop was set fire at about 9 a.m. on the very same date and connected with such incident, he went to the Police Station at about 6 p.m. on the very same date of launching Ext.P1 and launched First Information statement, on the basis of which Ext.D1 FIR in Crime No.47/99 was registered in the Beypore Police Station. He had also deposed before the court that when he went to the Police Station to launch F I Statement in Crime No.47/99, he had also informed the police about the occurrence in the present case. He had further deposed about the incident in the present case that, he was under the impression that his sister (PW5) would file a written complaint and therefore he did not preferred 9 Crl.A.No.402 of 2003 any written complaint at that point of time with respect to the present incident. Whatever may be the explanation offered by PW1, now it is born out from his own evidence that the Police has got an information about the incident in the present case prior to the time of Ext.P1 FI Statement, but no action was taken by the Police till registering an FIR on the basis of Ext.P1 FIS which allegedly given by PW1 subsequently, at 8 p.m. So, according to me, the very basis of Ext.P1 FIS and Ext.P3 FIR in the present case is shaken. As PW1 has already claimed that he conveyed the information about the occurrence in the present case, Ext.P1 cannot be treated as first information with respect to the present incident. I just referred to the above facts and evidence on record only to show that the very initiation of the prosecution steps in the present case rendered as doubtful. As I indicated earlier, the court below has disbelieved the evidence of Pws.1, 2 and 3 and especially when there is no appeal at the instance of the State against the above finding and order of acquittal, according to me, 10 Crl.A.No.402 of 2003 in this appeal, this Court need not go into the merits or demerits of the above findings of the court below with respect to the evidence of Pws.1 to 3 in the present case.
10. It is pertinent to note that, the court below though disbelieved Pws.1 to 3, after having placed much reliance on the evidence of PW4, was inclined to convict the appellants for the offences under Sections 436 r/w Section 34 of IPC. PW4 during his deposition stated before the court that he had seen the occurrence and he identified the appellants as the persons involved in the commission of the offence. During the chief examination he had stated that on 12.4.1999 at about 10.30 a.m. when he was returned to his house after his work, he had seen some persons going with weapons and they were going towards the side of the house of the Panchayat member and they destructed the house. According to him, he had witnessed the occurrence from the road, by the side of the house of one Habeeb. According to PW4, the house was set fire and he can identify the accused. Thus, in the court, he pointed out A10 11 Crl.A.No.402 of 2003 Subramaniyan and identified him as one Pramod, and pointed out A6 Suneesh and identified him, and pointed out A12 Santhosh and identified him, and also pointed out A5 Murali and identified him. He had stated that he does not know others. According to PW4, after the occurrence, the appellants/accused disappeared from the scene of crime and he went to the house of the Panchayat Member and he had also participated and assisted in putting out the fire. During the cross examination of PW4 he had stated that he was present in the court on the previous day of his examination. An answer to the question put by the defence, though he said initially that he does not know the CPI(M) leaders present in the court, after little pause, he identified one Alibaba and one Balaraman who belonged to Beypore. He had also stated that he had seen those persons during the previous day in the trial court. He had also deposed that he does not know the house names of the accused persons, pointed out by him. He had categorically stated that he never stated the house name of those accused to the 12 Crl.A.No.402 of 2003 Police. In an unequivocal language PW4 has deposed that, " Police- . Police . " According to him, though there was a hartaal declared on the date of the incident, he came in a bus and alighted at the bus stop namely "five cent". According to PW4, his house was launched on the western side of the bus stop and the house in question which allegedly belong to PW5 was situating 150 meters on the southern side of the bus stop. He had also stated that, "
bus stop- . "
PW4 further stated that, "" " -
. Police- .
Police.
. . " It is on
the basis of the above evidence of PW4, the trial court convicted the appellants.
11. The learned counsel for the appellant vehemently submitted that the evidence of PW4 cannot be believed 13 Crl.A.No.402 of 2003 because of the inbuilt infirmities and contradictions contained in his deposition. It is also the submission of the learned counsel that the evidence of PW4 are not sufficient to prove the overtact of the appellants in the commission of the offence as alleged against them. Thus on the strength of the decisions reported in Vadivelu Thevar Vs. The State of Madras (AIR 1957 S.C. 614) and Lallu Manjhi and another Vs. State of Jharkhand [(2003) 2 Supreme Court Cases 401], the learned counsel submitted that in the absence of any independent evidence, the evidence of PW4, whose evidence is not free of doubt, cannot be believed for convicting the appellants and to impose such a harsh sentence of 8 years. It is also the contention raised by the learned counsel that the accused are not properly questioned under section 313 and the incompatible circumstances were not put to them and what put to them under 313 examination is not based upon the evidence on record. In support of the above contention, the learned counsel placed reliance upon the decision in Sujit 14 Crl.A.No.402 of 2003 Biswas Vs. State of Assam (2013 KHC 4435). It is also pointed out by the learned counsel that though the identity of the assailants is very material and relevant in a criminal case, the trial court has taken the same as so lightly and therefore the above approach of the trial court cannot be approved. According to the learned counsel, in the background of the case, under which the appellants/ accused were implicated, unless the evidence adduced by the prosecution are free of doubt, it is unsafe to convict the appellants/accused. But ignoring all the above facts and circumstances, though the other evidence of prosecution, namely the deposition of Pws.1 to 3 were disbelieved by the court below, the trial court has simply on the basis of evidence of PW4, convicted all the appellants with the aid of section 34 of IPC and the said approach and the finding of the court below is per se illegal and liable to be interfered with.
12. Per contra, the learned Public Prosecutor submitted that on the strength of the decision in Zahira 15 Crl.A.No.402 of 2003 Habibullah Sheikh (5) and another Vs. State of Gujarat and others [(2006)2 SCC (Crl) 8], that the incident in the present case, occurred as part of the series of incidents, was due to political rivalry between two prominent political parties and in the given facts and circumstances involved in the case, the witness who had occasion to see the incident may not be able to give a photographic account of the entire incidents and also about the description of the accused who involved in the incident. Therefore, according to the learned Public Prosecutor, even if there is some infirmatives and discrepancies in the evidence of the eye witness, the same are not sufficient to discard his evidence, especially considering the gravity of the offence alleged against the appellants/accused. After taking me through again to the deposition of PW4, the learned Public Prosecutor has submitted that, the trial court is justified in believing PW4 and resting the finding on such evidence of PW4 and convicting the appellants on that basis. So, according to the learned Public Prosecutor, the 16 Crl.A.No.402 of 2003 trial court is fully justified and correct in its finding and no interference is warranted.
13. I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor and I have perused the evidence and materials on record. I have also perused the judgment impugned in this appeal. I have carefully gone through the authorities cited by both the counsel for the appellant as well as the learned Public Prosecutor.
14. Having regard to the facts and circumstances involved in the case and in the light of the evidence and materials on record, particularly in view of the rival contentions advanced, the question to be considered is whether the trial court is justified in its finding and convicting the appellants for the offence under section 436 of IPC, with the aid of Section 34, particularly when the trial court has rejected the case of the prosecution with respect to the offence under Sections 143, 147, 148 and 149 of IPC. As I indicated earlier, at the outset it is to be 17 Crl.A.No.402 of 2003 noted that the order of acquittal recorded by the trial court against the prosecution and in favour of the other accused in the above sessions case is not challenged by the State. The order of acquittal in favour of the present appellants for the offences under sections 143, 147, 148 and 149 of IPC is also not challenged by the State.
15. As the trial court disbelieved the evidence of Pws.1 to 3 and 5, the further question to be considered is whether the trial court is justified in convicting the appellants on the basis of the solitary evidence of PW4 and that too with the aid of Section 34. It is to be noted that in view of the evidence of PW1, coupled with the defence evidence it can be seen that the very basis of the prosecution against the accused in the present case rendered as doubtful for the reason which I already referred above. In this case it is relevant to note that when PW1 launched Ext.P1 FI statement, he never mentioned the name of any of the accused in the above sessions case. Then the unanswered question is, how the prosecution has 18 Crl.A.No.402 of 2003 arrayed 30 persons in the array of the accused. Absolutely there is no evidence in this regard. No report is seen filed and proved as to when and how these 30 persons are arrayed as accused. There is no evidence or material, based upon which, the prosecution has implicated 30 persons as accused in the above crime, particularly when at the time of launching Ext.P1 FIS and registering Ext.P3 FIR, the names of the accused are not mentioned. In this juncture it is relevant to note that in the evidence of PW4, ie., the solitary evidence relied on by the prosecution and considered by the learned Judge, he had categorically stated that he does not know the house names of the accused who had been pointed out by him during the trial. He had also stated that he did not disclose the house names of those accused to the Police. He is further certain that he did not mention the names of the accused to the Police and those names were incorporated by the Police. From the above evidence of the loyal witness of the prosecution, it can be concluded that the prosecution has got a tendency 19 Crl.A.No.402 of 2003 to implicate persons in the array of accused which are not mentioned by any witness including PW4. So, the false implication of accused including the appellants cannot be ruled out and evidentiary weightage can be given to the deposition of PW4, in identifying the appellants/accused during the trial.
16. It is further relevant to note that to prove the involvement of the accused, the sole evidence relied on by the court below is that of the deposition of PW4. As rightly pointed out by the learned counsel for the appellant, in view of the decisions relied on by the learned counsel, reported in AIR 1957 S.C. 614 and (2003) 2 Supreme Court Cases 401, the evidence of PW4 will come under the third category, namely testimony neither wholly reliable nor wholly unreliable. In the present case, according to me, the evidence of PW4 is wholly unreliable and the same is not helpful for the prosecution to prove the overtact of the appellants in the commission of the offence alleged against them. Firstly, it is relevant to note that absolutely there is 20 Crl.A.No.402 of 2003 no evidence as to how and when these appellants, who are shown as accused nos.5, 6, 7 and 12, were implicated in the above crime. As I indicated earlier, PW4 has stated that the names of other accused are implicated or added by the Police in the above crime at their choice. If that be so, in the absence of any report or evidence, without which the Police cannot implicate the appellants/accused in the above crime, the evidence of PW4 before the court that the appellants are involved in the crime cannot be accepted as such. It is pertinent to note that PW4 has admitted that he has not given the house addresses of these appellants. So, the cumulative effect of the version of PW4 is that, the Police implicated these appellants in the above crime in the absence of any reliable material or evidence. Suffice to say, PW4 in his deposition has not attributed any particular role or overtact against the above appellants/accused in the commission of the above offence. Though PW4 has claimed that he had witnessed the incident and deposed about the role of the appellants/accused, that cannot be believed, 21 Crl.A.No.402 of 2003 since during the cross examination of PW4, he has stated that he had seen "some persons" going towards southern side when he alighted from the bus and thus he identified such persons. It is not clear from his evidence that at the time when he alighted from the bus, whether the incident was over and at the time when he said to have seen the accused, whether the accused were going after the incident or whether they were present there before the incident. It is already came out in his own evidence that the house of PW5 is situating 150 meters on the southern side of the bus stop. PW4 has no case that he followed the persons whom he saw when he alighted from the bus. There is no evidence as to the exact location and distance between the house of Mr.Habeeb and the house of PW5. In the light of the above defect in the evidence of PW4, his version cannot be believed that he had witnessed the incident. Further it is relevant to note that PW4 has also stated that to go to his house, after alighting from the bus at the bus stop, namely five cent, he need not go to the place of occurrence. Even 22 Crl.A.No.402 of 2003 according to the prosecution, the incident in the present crime was as part of the political rivalry between the two political parties and on that day, a hartaal was declared. If that be so, normally in such a situation, if actually PW4 has alighted from the bus as claimed by him, as per the normal human conduct, he is expected to go straight away to his house. In this case it is further relevant to note that when PW4 was cross examined, though he initially denied any acquaintance with one Alibaba and Balaraman, after a pause, he deposed before the court that they are from Beypore and they were present during the previous day's trial while he was present in the court. So, the interest of PW4 to depose against the accused cannot be ruled out.
17. In the light of the above referred facts and circumstances and in view of the defect in the evidence of PW4, according to me, his evidence are not sufficient to inspire the confidence of the court and in the absence of any independent evidence to corroborate the evidence of PW4, according to me, the trial court is not justified in 23 Crl.A.No.402 of 2003 accepting the evidence of PW4 in support of his finding and convicting the appellants. According to me, it is unsafe to convict the appellants in the absence of any corroborative evidence from independent sources on the basis of the solitary evidence of PW4 in view of the defect, infirmities and discrepancies in his evidence, particularly when the trial court disbelieved the evidence of Pws.1 to 3, cited and examined by the very same prosecution.
18. It is also born out from the evidence that the house in question, which was allegedly set fire by the accused, belonged to PW5 who is a member of Panchayat, elected under the banner of CPI(M) and Pws.1 and 2 are also supporters of CPI(M). There is no reliable evidence as to how and when the accused, including the appellants, were implicated in the above crime, particularly when PW1 has failed in mentioning the names of real accused and aggressors who set fire to the house of PW5 and hence it cannot be said that the prosecution has succeeded in establishing the case against the accused beyond 24 Crl.A.No.402 of 2003 reasonable doubt. Therefore, the trial court ought to have been acquitted the appellants as well, by extending the benefit of doubt and therefore I am unable to confirm the finding and conviction recorded by the trial court against the appellants and accordingly the finding and conviction recorded by the trial court against the appellants are set aside.
In the result, this appeal is allowed setting aside the judgment dated 28.2.2003 of the court of IIIrd Additional Assistant Sessions Judge, Kozhikode, in S.C.No.514/01. Accordingly, the appellants are acquitted of all the charges levelled against them and the bail bond if any executed by them shall stand cancelled and they are set at liberty.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge