Kerala High Court
Gireesan Nair vs State Of Kerala on 14 January, 2010
Bench: K.Balakrishnan Nair, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 384 of 2006()
1. GIREESAN NAIR, S/O.GOPALAN PILLAI,
... Petitioner
2. PADMAKUMAR, S/O.GOPINATHAN NAIR,
3. CHANDRAMOULI @ RAMESH,
4. ANAND MOHAN, S/O. MOHAN KUMAR,
5. PRAVEEN KUMAR, S/O. MOHANAN NAIR,
6. SHINU KUMAR @ VISHNU, S/O.VELAYUDHAN,
7. MURALI, S/O. GOPALAKRISHNAN,
8. RAJU, S/O. MOHANAKUMARAN NAIR,
9. VIJAYESH, S/O. RAJAN,
10. SANTHOSH KUMAR @ SANTHOSH,
11. VINOD @ MANU, S/O. VIKRAMAN,
12. SUDHARSANAN, S/O.BALACHANDRAN NAIR,
13. VIJAYAKUMAR @ BIJU @ POODAN,
14. UMAKANTHAN, S/O. ACHUTHAN NAIR,
15. JAYAKUMAR, S/O.MURALEEDHARAN NAIR,
16. RAJASEKHARAN, S/O.KRISHNAPILLAI,
17. RAJ KUMAR @ RAJAN,
18. RAVIKUMAR, S/O. VASUDEVAN NAIR,
19. ARUNKUMAR @ MAHESHWARAN,
20. SUDHAKARAN, S/O.PARAMESWARAN NAIR,
21. MANIKANTAN, S/O. DAMODARAN NAIR,
22. SISUPALAN @ SISUPALJI,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :14/01/2010
O R D E R
K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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Cr. A. Nos.384/06, 385/06 & 1279/07
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Dated 14th January 2009 Judgment Bhavadasan, J.
Thirty three persons were prosecuted for the offences punishable under Ss.120B, 143, 147, 148, 324, 427, 506, 302 r/w 149 IPC and Ss.109, 111 IPC and S.3(2)(e) of the Prevention of Damages to Public Property Act, 1984 (hereinafter referred to as the PDPP Act). Accused Nos.8, 13, 15 and 20 to 24 were found not guilty of any of the offences and were acquitted of the charges. Accused Nos.17 and 19 were found guilty of the offences punishable under S.302 r/w 34 IPC. Accused Nos.1 and 2, along with A25 to A33 were found guilty of the offence punishable under S.120B r/w S.3(2)(e) of the PDPP Act. A1 to A7, A9 to A12, A14 and A16 to A19 were found guilty of the offences punishable under S.143 IPC. The said accused were found guilty of the offences punishable under Ss.147 and 148 as well. The accused persons, who were found guilty of various offences, were sentenced to various terms of imprisonment.
Cr.A.Nos.384/06, 385/06 & 1279/07 2
2. The Prosecution case, in brief, is as follows :
The Government of Kerala decided to de-link Pre-degree course from the colleges and to start Plus-two course at the School level. There were protests from various quarters and the A.B.V.P., one of the students organisations in Kerala, on 12.07.2000, launched a protest march against the policy adopted by the Government. It is stated that the Police were harsh on them and several protesters, including girl students were injured. The Prosecution case is that infuriated by the said conduct of the Police, the office bearers of the A.B.V.P. and allied organisations decided to launch a strong protest on 13.07.2000, by causing destruction to public property and trespass into the Government Secretariat. The case of the Prosecution is that on 13.07.2000, the protesters belonging to the A.B.V.P., armed with deadly weapons, marched to the Secretariat. When the Police prevented them from entering the Secretariat, they became violent. They caused damage to several of the K.S.R.T.C. buses and some of them went inside the garage of the K.S.R.T.C. A few employees of the K.S.R.T.C. reacted to the acts committed by the students and Cr.A.Nos.384/06, 385/06 & 1279/07 3 they tried to repel them. In that process, Rajesh, a Conductor of the K.S.R.T.C., received blows from A17 and A19, to which, he later succumbed. The further allegation is that the students went berserk and caused considerable damages to the public properties, including 86 Nos. of K.S.R.T.C. buses.
3. Rajesh, the injured was admitted in the Medical College Hospital, Thiruvananthapuram. On getting information about the same, PW72, a Head Constable, attached to the Fort Police Station reached the Hospital and found that Rajesh was in a critical stage. Therefore, he recorded the F.I. statement Ext.P6 given by PW2, another employee of the KSRTC, who was waiting outside the I.C.U. wing of the Medical College Hospital. He also prepared Ext.P6(b) body note of the injured. On the basis of Ext.P6 F.I. statement, Crime No.261/2000 for the offences punishable under Ss.143, 147, 148, 307 r/w 149 IPC and S.3(2)(e) of the PDPP Act and Ss.3 and 5 of the Explosive Substances Act, 1908 and Ext.P6(a) F.I.R. were registered. The investigation was taken over by PW78, the then Circle Inspector of Police, Fort Police Station. On the same day, he received reliable information that some of the accused persons involved in Cr.A.Nos.384/06, 385/06 & 1279/07 4 Crime No.260/2000 of the Fort Police Station had gone to the Karyalaya of the R.S.S., carrying weapons. PW78, therefore, prepared Ext.P98 search memo and searched the Karyalaya. He found A1 to A6 there and arrested the said accused persons. He also recovered several weapons from there. Later, PW78 got information that some other accused persons, who were involved in the crime, were standing near Sreevaraham pond and he arrested A7 to A21 from there. On 14.07.2000, he inspected the scene of occurrence, prepared Ext.P91 scene mahazar and seized the materials found there. He submitted Ext.P100 report to the court, furnishing the names and addresses of A1 to A16. He recorded the statement of witnesses. Subsequently, the investigation was taken over by PW76, as per Ext.P95 order of the D.I.G., Thiruvananthapuram. In the meanwhile, Rajesh succumbed to his injuries and therefore, PW78 went to the Medical College Hospital, conducted inquest over the body of Rajesh and Ext.P55 inquest report was prepared. The body was then, sent for autopsy. PW56, the Forensic Surgeon conducted autopsy on the body of Rajesh and prepared Ext.P76 postmortem certificate. Later, a Cr.A.Nos.384/06, 385/06 & 1279/07 5 report was filed before the Court to incorporate S.302 IPC in the charge. All the accused were arrested, investigation was completed and charge was laid before Court.
4. The Judicial First Class Magistrate's Court-II, Thiruvananthapuram, before whom, the final report was laid, took cognizance of the offences. On appearance of the accused before Court, necessary legal formalities were complied with and on finding that the offences were exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Thiruvananthapuram. The latter Court, for speedy disposal, made over the case to the Additional District and Sessions Judge (Fast Track) Court-I, Thiruvananthapuram. The said Court, on receipt of the records, issued summons to the accused. They entered appearance and after hearing both sides, the Court below framed charges against the accused. To the charges, the accused pleaded not guilty and claimed to be tried. The Prosecution, therefore, examined PWs1 to 85 and marked Exts.P1 to P134. MOs 1 to 27 were also got identified and marked. After the close of the evidence, the accused were questioned under S.313 Cr.P.C.They denied all the incriminating Cr.A.Nos.384/06, 385/06 & 1279/07 6 circumstances brought out in evidence against them and maintained that they were innocent. Finding that the accused could not be acquitted under S.232 Cr.P.C., they were called upon to enter on their defence. From the defence side, three witnesses DWs 1 to 3 were examined and exhibits D1 to D24 were also marked.
5. The Court below, on an appreciation of the evidence in the case, found that offences have been established against some of the accused as already mentioned. Therefore, conviction and sentence, with regard to those offences, followed. They are assailed in these Appeals.
6. Cr.A.No.384/06 is filed by A1 to A7, A9, A14, A16 to A19 and A25 to A33. Cr. A. No.385/06 is filed by A10, A11 and A12 and Cr.A. No.1279/07 is filed by the State of Kerala.
7. The question that arises for consideration in the appeals filed by the accused is whether the Court below was justified in finding that the Prosecution case is true and whether the acquittal of some of the accused is justified or not, is the point to be decided in the appeal filed by the State.
Cr.A.Nos.384/06, 385/06 & 1279/07 7
8. The Prosecution builds up its case on three aspects, namely, (1) Conspiracy to commit various offences, (2) Causing death of Rajesh & (3) Destruction of public property.
The Court below was inclined to accept the case of the Prosecution that there was a conspiracy, as hatched by A1 and A2 along with A25 to A33 to avenge the police atrocity, unleashed on the supporters of A.B.V.P. on 12.07.2000. According to the Prosecution case, those persons had decided to create fear and terror in the area on 13.07.2000. For this purpose, the Court below mainly relied on the evidence of PW68.
9. As far as the conspiracy is concerned, as already noticed, it is alleged to have been hatched by A1 and A2 along with A25 to A33. It was to destroy public properties and create law and order problems in the area. In fact, the Prosecution relied on the evidence of two witnesses to prove the offence of conspiracy. They are PWs68 and 85. Among them, PW85 turned hostile and his evidence serves no purpose as far as the Cr.A.Nos.384/06, 385/06 & 1279/07 8 Prosecution case is concerned. Therefore, the offence of conspiracy remained confined to the testimony of PW68.
10. The learned counsel for the appellants pointed out that the story of conspiracy is a cooked up one, to suit the purpose of the Prosecution. It is pointed out that PW68 was unworthy of credit and is a planted, tutored and manipulated witness. According to the learned counsel, a close reading of his evidence, taken along with Ext.D23, will clearly reveal that he has no regard for truth. The person describes himself as an R.S.S. follower, while he is, in fact, a Marxist Party worker.
11. Going by the Prosecution case, the conspiracy was hatched between 7.30 to 8 pm. on 12.07.2000. During the day time on the said day, there was a protest procession taken out by the followers of A.B.V.P. and it seems that the Police had reacted harshly to them. In fact, it appears that lathi charge was resorted to and tear gas was used. Some of the students were seen to have received severe injuries. The Prosecution would allege that the conspiracy was hatched at the Samskruti Bhavan, where A1, A2 and A25 to A33 had gathered and decided the future course of action to be carried out on 13.07.2000. The Cr.A.Nos.384/06, 385/06 & 1279/07 9 one and only witness for the Prosecution in this regard is PW68. His evidence, therefore, needs to be evaluated very carefully.
12. PW68 claims to be associated with R.S.S. He claimed that he used to attend classes conducted for the workers of R.S.S. On 12.07.2000, he says that he had gone to Samskruti Bhavan. He also claimed that he used to go there frequently. Samskruti Bhavan is situated behind the Fort high School. He stated that he goes there to meet his friends and take books from the Library to read. He then says that Samskruti Bhavan is in the Devaswom Building, which is a huge building and the first floor is occupied by the Samskruti Bhavan. According to him, the said building also has the offices of Seva Bharathi, Vishwa Hindu Parishat, Balagokulam etc. In the ground floor at the southern end, is a temple. On 12.07.2000 in the evening, according to this witness, when he reached the Library in Samskruti Bhavan, there was no one there. But, he felt that there is some one in that floor. He moved around and found a few people sitting in a room and they were engaged in a discussion. There were eleven of them. He says that they were familiar to him and identified them as A1, A2 and A25 to A33 in Court also. It is interesting to Cr.A.Nos.384/06, 385/06 & 1279/07 10 read what he heard at that place. He has deposed that he heard them talking that on the next day i.e., on 13.07.2000, they should take out a protest march against the Police, in the city. He then heard them saying that they should force themselves into the Secretariat, overcoming the resistance offered by the Police and that would spark off police action again. According to this witness, the persons present in the building decided to unleash attacks and terror in the area. They decided to go to any extent, to achieve their purpose. They decided to avenge the acts of the Police on A.B.V.P. followers on 12.07.2000. PW68 would say that after hearing this, he went to the Library. He maintains that he is still a follower of R.S.S. The witnesses stated that he decided to divulge information against the accused since he felt that some of the so called workers in the R.S.S. like the accused, were not really interested in the welfare of the Organisation and they wanted to indulge in activities, detrimental to the Organisation.
13. At the first blush, though the above claim of PW68 may appear to be true, on a close scrutiny of his evidence, it can be seen that he is not a witness of truth. First of all, it is rather Cr.A.Nos.384/06, 385/06 & 1279/07 11 inconceivable that a strong follower of R.S.S. or any political party or organisation would speak so vociferously against the other workers of the party, as has been done by PW68. His claim of loyalty to the Organisation, is open to serious doubts. If he had any intention to keep the Organisation clean, he could have brought the illegalities committed by the workers to the notice of the higher functionaries of R.S.S. in time. Probably, this is one of the rarest of rare cases, where the Prosecution ventures to adduce direct evidence regarding conspiracy. Usually, it is virtually impossible to get direct oral evidence regarding conspiracy for it is done in secrecy. So, the evidence of PW68 appears to be doubtful. One cannot simply swallow that being a follower and worker of RSS, he would speak against the Organisation. PW68 stated that he has nothing to show that he is an active worker of RSS.
14. One may recall that the evidence of PW68 is to the effect that he happened to see A1, A2 and A25 to A33, indulging in conspiracy, when he entered the Samskruti Bhavan. At one point of time, he would say that Samskruti Bhavan is behind the Fort High School and in another point of time, he would say that Cr.A.Nos.384/06, 385/06 & 1279/07 12 it is in the Devaswom Building. Whatever that be, it has been brought out in evidence that with regard to the incidents, which took place on 12.07.2000, the Fort Police Station had registered Crime No.260/00. Quite a few of the accused in this case figured in that crime also. During the investigation of that crime, it seems that the Investigating Officer PW50 examined in this case had occasion to question PW68 and record his statement. He speaks about the conspiracy there also. But, what is important is that he gave a totally different version. There, his stand was that while he had gone to the Samskruti Bhavan at 8'o clock in the night on 12.07.2000, he had occasion to see a white Ambassador car, parked by the side of the Fort High School. He found a few persons going towards the car. There were eleven of them. He identified those persons as A1, A2 and A25 to A33 in this case. He overheard them, planning to unleash violence on the next day. He had no case at that time that he had occasion to see these people conspiring about the acts to be done, inside the Samskruti Bhavan building. It could then be seen that there are two diametrically opposite versions by PW68, regarding the very same incident. When PW68 was confronted Cr.A.Nos.384/06, 385/06 & 1279/07 13 with the earlier statement given by him, he denied of having made any such statement. Before PW50 also, who had occasion to record his statement, was definite that PW68 stated as recorded. The Court below was of the opinion that this inconsistency is not of much significance, but we are unable to concur with the Court below on the above aspect. We also feel that the claim of PW68 that he is an ardent follower of R.S.S. is open to serious doubts. It would appear from the nature of his evidence and the way in which he has deposed that he is a planted, tutored and manipulated witness, as claimed by the defence. So, it may not be safe to infer conspiracy, based on the solitary suspicious evidence of PW68. At any rate, there is nothing to indicate that the conspiracy extended to causing the murder of Rajesh. All that is tried to be established is that there was a decision taken by the members of the R.S.S. to unleash terror, create fright in the area and cause destruction to the public properties. Whatever that be, the evidence of PW68 alone is too brittle to come to a definite conclusion regarding conspiracy.
Cr.A.Nos.384/06, 385/06 & 1279/07 14
15. The allegation of conspiracy has yet another aspect. The Prosecution case is that A1 and A2, along with A25 to A33, conspired to create terror in the area. However, in the incident that happened on 13.07.2000, the said accused persons alone were not involved. Various acts were committed by various persons. The evidence in this case is that after the initial surge, when Police offered resistance and resolved to take harsh steps so as to disburse the mob, the protesters ran hither and thither . Later, some of them converged at a particular spot. A few among them made provoking speeches from there and then, they branched off into groups and went from place to place, causing destruction to public properties. So, there is nothing to show that even assuming the first part is in furtherance of a conspiracy, the latter part can have no such image. Even in the first of the two incidents, a large number of people had participated and one fails to understand as to how the Prosecution could say that it was the result of a conspiracy.
16. What next arises for consideration is the murder of Rajesh. Rajesh was working as a Conductor in the KSRTC. The Court below, on an evaluation of the evidence before it, came to Cr.A.Nos.384/06, 385/06 & 1279/07 15 the conclusion that A17 and A19 alone could be held responsible for causing the injuries, which resulted in the death of Rajesh. The State has come up in appeal against the said finding. It wants to find several other accused also, along with A17 and A19 equally liable for the murder of Rajesh, i.e., Accused Nos.25 to 33 and also some other accused persons. According to the State, the acts, which resulted in the death of Rajesh were in pursuance of the conspiracy hatched on the previous day.
17. First of all, the offence of conspiracy has fallen to the ground and therefore, that question does not arise for consideration any more. Even assuming that there was a conspiracy as alleged by the Prosecution, that was only for the destruction of public property and there is nothing beyond that. The conspiracy was only to create terror and fear in the area, as a protest against Police acts and thereafter, to indulge in destruction of public property. The conspiracy, even assuming to be proved, was only to create as much trouble and destruction as possible, in the area. In this scheme of things, the conspiracy to murder Rajesh, does not fit in at all.
Cr.A.Nos.384/06, 385/06 & 1279/07 16
18. In Cr.A. No.385/06, A17 and A19 have challenged the finding of offence of murder against them. One may recall that they have been found guilty of the offence of murder punishable under S.302 r/w 34 IPC.
19. The Prosecution seeks to prove that the death of Rajesh was caused due to the acts of various protesters through the evidence of PWs 1 to 12, 15 to 22, 27 to 29 etc. But, unfortunately for the Prosecution, the evidence regarding this aspect was furnished only by PWs 5, 6 and 8. The lower Court have found their evidence to be acceptable. Before going into that, it will be useful to consider the finding of the Court below in this regard and to refer to the injuries suffered by Rajesh, the victim.
20. Though CW84 was cited by the Prosecution to prove the treatment given to Rajesh at Medical College Hospital, on sustaining the injuries, the presence of CW84 could not be procured. The treatment recorded was, therefore, proved through PW83. The wound certificate of the deceased Rajesh, prepared at the Medical College Hospital is Ext.P124. The Court below has extracted the various injuries found on the body of Cr.A.Nos.384/06, 385/06 & 1279/07 17 Rajesh, at the time of his admission in the Hospital. The Court below, in fact, has also extracted the entries in the wound certificate and the findings and opinion given in Ext.P76 postmortem certificate. It is therefore, unnecessary to reproduce them in this Judgment. The opinion as to the cause of death of Rajesh is the blunt injuries suffered on his head. PW56, who conducted autopsy on the body of the deceased Rajesh, has deposed that Injury Nos.1 and 2 are the cause of death and they could well be caused by use of weapons like MOs 2 and 3.
21. PW56 had collected samples of various internal organs of the deceased at the time of autopsy. Ext.P83 is the chemical analysis report, which shows that the viscera examined showed that it contained 57.5 mgs. of Ethyl Alcohol per 100 mg. of blood. Based on the alcohol content so found, PW56 stated that the victim would have been easily provoked and behaved violently. There were as many as 15 to 18 injuries, found on the body of the victim. The Prosecution allegation is that the injuries were caused by A17 and A19 by using MOs 2 and 3 and the pelting of stones by the other accused persons. Whatever that be, one fact is very clear, i.e., the death of Rajesh was a homicidal. Cr.A.Nos.384/06, 385/06 & 1279/07 18
22. While the State wants to make the other accused persons also liable for the death of Rajesh, A17 and A19 assailed the finding of the Court below on several grounds. They characterised PWs 5, 6 and 8 as stooges of the Marxist party. According to them, they are planted and well tutored witnesses, to depose against the accused persons.
23. PW5 claims to have been running an instant food stall at Pazhavangadi. He runs his business, opposite to the Ganapathy temple. He functions from 5 pm till 11 pm. According to him, on the date of the incident, he had gone to the Civil Supplies Corporation situated below the KSRTC Chief Office, to buy articles for his business purposes. It was at about 12 in the noon. He found a number of persons moving along the road, causing destruction to the vehicles. Those miscreants were seen smashing everything that came on their way. They had wooden planks, iron pipes, sticks, stones etc. with them. They were merciless on vehicles, which were parked on either side of the road. He would say that he happened to hear some of the employees of the K.S.R.T.C., asking the protesters to desist from causing damages to the KSRTC buses. The reply was by Cr.A.Nos.384/06, 385/06 & 1279/07 19 pelting of stones. One among the employees of the KSRTC had a stone hit on his face and he fell down. He would claim that a person by name, Sathar and another person, by name Ani, took shelter near to him. He would say that then, he had occasion to see one of the miscreants, beating the person, who had fallen on the ground with a wooden plank. The victim cried out that he was being killed. Frightened by this, the persons who were accompanying the victim, ran away from the place. PW5 claims that he had occasion to see the taller person among the miscreants, hitting the victim with an iron rod. Thereafter, they entered the garage and smashed the vehicles found there. He would claim that he saw two persons coming out of the nearby school and taking the victim, who had fallen on the ground to the hospital in a tempo van. He identified MOs 2 and 3 as the weapons used by the assailants. He identified A17 and A19 in court. He also identified A9, A5, A3, A7 and A1 as persons, who were along with A17 and A19. He was able to identify them in the identification parade also.
24. PW6 is a headload worker by profession. On the date of incident, he claims that he had gone to the Taluk Office for Cr.A.Nos.384/06, 385/06 & 1279/07 20 purchasing a revenue form. When he reached Transport Bhavan, he found about 10 to 25 persons, causing destruction to the vehicles on the road. PW6 says that he got into the KSRTC building. Two other persons were also there, frightened by the acts of the miscreants. One of them was PW5 and the other was Sathar. PW6 too would say that while the miscreants were indulging in causing heavy damages to the KSRTC buses, three of its employees asked them not to do so. Those persons had come from the garage of the KSRTC. They were replied by showering abuses by the miscreants, followed by pelting of stones. One of the stones fell on the head of the victim and he fell down. He too would depose that the victim was assaulted by two persons, one with a wooden plank and the other with an iron rod. The victim began to bleed. Some of the miscreants entered the garage and smashed the vehicles found there. When PWs 5 and 6, who were waiting inside the building got down to the road, they found two persons coming out of the nearby school and going towards the victim. Initially, they were repelled by the miscreants and so, they returned and came back later. He would depose that he had gone near the victim. By that time, a few Cr.A.Nos.384/06, 385/06 & 1279/07 21 employees of the KSRTC, had gathered near the victim and he was taken to the Hospital in a tempo van. He also speaks about the various illegal activities committed by the group of miscreants. He too identified A17 and A19 in Court. He also identified MOs 2 and 3. He was able to identify the clothes worn by A17 and A19. But, he was unable to identify the particular person, who had pelted stones on the victim and others.
25. PW8 was an employee of the KSRTC. At the relevant time, he had duty from 9 am. to 5 pm. On the date of incident, he came to the office at 9 am. He is a Blacksmith in the KSRTC. Soon after he reached the Office, quite a few number of buses were brought for repair. After completing the work of one of the vehicles, he was on his way to have a cup of tea, when he found persons coming inside the office in the garage of the KSRTC. Consequent to that, an Officer of the KSRTC, who was on duty on the said date, asked PW8 to accompany him to see what was happening outside. When they got out, they found about 20-25 persons, fully armed with weapons, causing destruction to the KSRTC buses. He would depose that three persons came out of the garage of the KSRTC building and requested the protesters Cr.A.Nos.384/06, 385/06 & 1279/07 22 to desist from their activities. They were showered with abuses, followed by pelting of stones. One of the stones hit Rajesh on his face and he fell down. Three persons, who were then accompanying Rajesh, found the situation bad and they ran back to the KSRTC office. PW8 would depose that one of the miscreants was seen hitting Rajesh with a wooden plank. That caused a bleeding injury on Rajesh. PW8 would also depose that he had occasion to see another person, hitting the victim with an iron rod. Rajesh began to bleed heavily. According to the evidence of this witness, the miscreants then entered the garage and caused considerable damage to the vehicles found there. After they left the garage, he says, he came into the KSRTC building. On being requested, PW8 would depose that, he along with an Officer of the KSRTC, took Rajesh to the Medical College Hospital in a tempo van.
26. Several criticisms are levelled against the acceptance of the evidence of the above witnesses. It is pointed out that it can be very easily seen that PWs 5, 6 and 8 are procured witnesses to suit the convenience of the Prosecution. A careful scrutiny of their evidence will show that the place of occurrence Cr.A.Nos.384/06, 385/06 & 1279/07 23 has been shifted to make it possible for PWs 5 and 6 to see the incident. It is also pointed out that there was considerable disparity and inconsistency in the identification made by the witnesses in Court and during the investigation stage. It is contended that the report prepared by PW84, furnishing the names of A17 and A19 was filed in Court, long after the crime was registered and that shows that they were subsequently implicated. It is contended that PWs 5 and 6 are chance witnesses and their evidence could not be accepted. One of the contentions was that the claim of PW5 that he had come to the Civil Supplies Corporation in the city, near the KSRTC bus stand, cannot be accepted, because, there is another Civil Supplies shop, very near to his place of business and therefore, it is virtually inconceivable that he could have come to the place as stated by him.
27. The said criticisms are without any basis. It is not necessary for PW5 to go to the shop, which is near his place of business. He may have several reasons for not doing so. But, the question is whether he could have been present at the scene and he could have seen the incidents. PW5 has given his Cr.A.Nos.384/06, 385/06 & 1279/07 24 testimony in which, he has also identified A17 as the person, who carried an iron pipe and A19 as the one, who was standing with a wooden reaper. Merely because the Civil Supplies shop is not near to his place of business, it will be too harsh to say that PW5 should be disbelieved. The evidence of PW6 is to the effect that he came to the place of incident as he was on his way to purchase a revenue form for getting a revenue card. He too had identified A17 and A19 and the weapons they had with them.
28. It is true that the evidence of PW8 is not fully in favour of the Prosecution. Though, he says that one person by name Rajesh was hit with an iron reaper, he did not identify the assailants in Court. But, his evidence reliably shows that quite a few persons entered the garage from the nearby school and the employees of the KSRTC had asked the miscreants, not to damage the vehicles. Soon thereafter, the pelting of stones started. He identified A1, A2, A9, A11, A18 and A20 as persons, who were in the group of assailants and who had come into the garage. PWs 5 and 6 have given clear reasons for their presence at the place of incident. It has to be noticed that Cr.A.Nos.384/06, 385/06 & 1279/07 25 considering the nature of the acts committed by the assailants and also the place and the manner, in which they were committed, it could not be stated that PWs 5 and 6 are procured witnesses. As far as PW8 is concerned, he is a Black Smith, attached to the KSRTC.
29. Regarding the contradiction in the identification, it is by now, well settled that the identification in Court is the substantive evidence. The identification during the investigation is only to enable the Investigating agency to be sure of the way, they are proceeding and it has nothing to do with the identification in Court. Probably, one could say that if two identifications tally with each other, the identification in Court may be held to have gained support from the identification during investigation also. But, the mere fact that there is some difference in the identification in Court and the one made during the investigation, by itself is not enough to discard the identification made by the witnesses in Court.
30. Emphasis was also laid on the fact that there were some inconsistencies and contradictions regarding the overt acts attributed to A17 and A19, as spoken to by the witnesses. It is Cr.A.Nos.384/06, 385/06 & 1279/07 26 unnecessary to give undue importance to such minor or insignificant inconsistencies. One has to remember that it was a mob attack and it was not possible for the witnesses to speak on the exact words/acts by each one of the members of the unlawful group. Whatever it may be, the fact remains that Rajesh was assaulted with an iron pipe and wooden reaper and he suffered injuries in that process. It is also clear from the evidence that at least two persons in the unlawful group did carry an iron rod and a wooden reaper. Persons have been identified by the witnesses as A17 and A19.
31. As far as PW8 is concerned, he was unable to identify A17 and A19 in Court. As already noticed, to that extent, his evidence is of no use to the Prosecution. But, his evidence stands, as regards the destruction caused to the KSRTC buses and also the attack made on Rajesh. To that extent, he corroborates other witnesses.
32. The allegation that there has been a conscious shifting of the place of incident, to enable PWs 5 and 6 to see the incident, is not justified at all. It is true that PW2, at the time of giving the First Information Statement, namely, Ext.P6, had Cr.A.Nos.384/06, 385/06 & 1279/07 27 stated that Rajesh had sustained injuries at the office compound of the KSRTC depot. But, on a close scrutiny of the evidence, it can be seen that it may not be fully correct. PW78, had prepared a scene mahazar earlier and later, another scene mahazar was prepared by PW84. One has to notice that the incident was not confined to a specific place and it was spread over an area. Therefore, to say that merely because a specific spot has been pointed out in one of the scene mahazars, the evidence of PWs 5 and 6 should be discarded, is too far-fetched. Even though PWs 5 and 6 have been characterised as stooges of the Marxist party, the defence has not been able to establish the same. An attempt was made from the side of the defence through DW2 to save A17. The Court below has discussed the evidence of the said witness in detail and has come to the conclusion that it is only a cooked up story.
33. It is significant to notice that the acts of A17 and A19 are not confined to the evidence of PWs, 5, 6 and 8. The Prosecution has proved the recovery of MOs 2 and 3 and the clothes said to have been worn by A17 and A19 at the time of the incident.
Cr.A.Nos.384/06, 385/06 & 1279/07 28
34. PW34 was a Black Smith working at the Pappanamcode Central Works. On the date of the incident, he stated that he was standing at the Kallummoodu Junction for taking a bus to his place of work. Then, he happened to see a group of persons, comprised of 20 individuals, armed with banners, wooden reapers etc. He claims to have then seen A17 with a iron rod and A19 with a wooden reaper. However, in Court, he was unable to properly identify A19. It could not be said that the evidence of this witness fully supports the case of the Prosecution. But, to a certain extent, it corroborates the other witnesses.
35. PWs 49 and 54 were examined by the Prosecution to prove the recovery of MOs 2, 3, 4 and 5. According to the Prosecution, on being arrested and questioned by PW84, two weapons and the respective dresses worn by A17 and A19 were recovered on the basis of the confession statements given by them. PW49 is an attester to Ext.P67 mahazar by which MOs3 and 5 were recovered and PW54 is an attester to Ext.P74 by which MO2 was recovered.
Cr.A.Nos.384/06, 385/06 & 1279/07 29
36. It is seen that the recovery of MO3 iron pipe and MO5 series of dress was made on the basis of the confession statement stated to have been given by A17, under Exts.P67 (a) and (b) mahazars. According to the Prosecution, A17 had produced the iron pipe, namely, MO3 from the south eastern corner of the roof of the house, bearing No.TC72/2289 near Ponnara School and the clothes, namely, MO5 series were recovered from the southern room of the house. Ext.P67 is the seizure mahazar, under which, they were seized. PW1 speaks about the recovery of articles at the behest of A17 and he has also explained the occasion for him to reach the place. According to the evidence, A19 produced MO4 series of dress from an almirah kept in the room in the house bearing No.TC72/2542. He produced MO2 reaper, which was hidden in the wall of the house. They were seized under Ext.P74 seizure mahazar. Even though PWs 49 and 54 were cross examined at length, no dent could be made in their evidence. The attempt was to show that they were CITU members and have been deliberately implanted to speak against the accused. There were several suggestions thrown at them in this regard. It is true Cr.A.Nos.384/06, 385/06 & 1279/07 30 that at some point of time, they showed some allegiance to CITU. In fact, one of them admitted to be a member of CITU. It is also true that one of them was involved in criminal cases also. But, there was nothing to suspect the evidence of PWs 49 and 54, because of the above reasons. At any rate, there is no such infirmity or stigma attached to those witnesses and there is no reason as to why their evidence should not be accepted.
37. There is thus, convincing evidence to show that A17 had an iron rod and A19 had a wooden reaper, with them. The evidence also disclosed that they had used it on Rajesh and caused injuries on him. There is also evidence to show that Rajesh had finally succumbed to those injuries. Of Course, Rajesh had suffered other injuries also.
38. At this point of time, it may be useful to consider the appeal filed by the State in this regard. The State points out that the Court below was not justified in confining the offence punishable under S.302 read with S.34 IPC to A17 and A19 only. According to them, the acts of A17 and A19 were in furtherance of the conspiracy hatched on 12.07.2000. At the time of commission of the offences by A17 and A19, the other accused Cr.A.Nos.384/06, 385/06 & 1279/07 31 persons, namely, A1, A2 and A4 to A33 were also present at the place. The State would point out that if the other accused had no role to play, they would have discouraged A17 and A19 from going on with their acts. The fact that they had not so discouraged A17 and A19, shows their involvement also in the crime, it is pointed out. Though, the argument may look very attractive, it is without any substance at all. First of all, the conspiracy theory has been found against. There is nothing to show that the other accused persons, along with A17 and A19, had shared any common object or common intention to cause any harm to Rajesh. It must be remembered that it was the result of spontaneous reactions on the part of A17 and A19, when resistance was offered by some of the employees of the KSRTC in the garage. None of the accused could anticipate that such a thing would happen. Apart from that, in a mob fury, if one of them without any pre-meditation or pre-determination, causes an injury to any person, it may not be possible to hold the entire mob liable for the act done by the said person. Of course, the State would say that it is not necessary that all the persons indulged in the act, should be fully aware of the conspiracy etc. Cr.A.Nos.384/06, 385/06 & 1279/07 32 But, that position does not arise for consideration in this case at all. Therefore, the decisions cited by the State, need not be gone into in detail.
39. Of course, the State in its appeal, would also say that there was exhortation from the part of several other accused persons to kill Rajesh and it was in furtherance of that exhortation that the attack was made by A17 and A19. Except for the self-proclamation by the State, there is no evidence in this regard to show that there were any such acts by the members of the mob. It must be remembered here that there is some evidence to show that some of the employees, who wanted to resist the protesters from causing destruction to the vehicles, in fact, had weapons, in the nature of tools, with them. May be apprehending trouble, A17 and A19 had acted in the manner as they did. But to say that it was in furtherance to either a common object or common intention, is too imaginative and uncalled for. So, the contention of the State that A1, A2 and A25 to 33 should also be found along with A17 and A19, guilty under the offence punishable under S.302 read with S.34 IPC, cannot be accepted.
Cr.A.Nos.384/06, 385/06 & 1279/07 33
40. It must also be noticed that Rajesh had sustained injuries, as a result of pelting of stones also. There is nothing to indicate that A17 and A19 had inflicted repeated blows with the iron rod and the wooden reaper, on Rajesh. The question as to what are the offences committed by those persons, will be considered a little later.
41. What next comes up for consideration, is the finding regarding the guilt of various accused persons with reference to the offences punishable under Ss.143, 147 and 148 IPC and S.3 (2)(e) of the PDPP Act. There cannot be much dispute regarding the fact that considerable damages were caused by the protesters in the incident that happened on 13.07.2000. As many as 86 KSRTC buses suffered considerable damages and the window panes of several buildings were shattered. The Court below has considered the evidence in detail and has come to the conclusion that some of the accused persons, who have indulged in the acts, have caused destruction to the public property. The Court below has, in paragraph 32 of the Judgment, mentioned the details regarding the destruction caused to the vehicles. Unfortunately for the Prosecution, it was not able Cr.A.Nos.384/06, 385/06 & 1279/07 34 establish that the miscreants had caused damage or destruction to any of the assets other than the KSRTC buses.
42. Except for minor damage caused to the roof sheets of some vacant sheds, the Prosecution was unable to prove anything else with regard to the destruction caused to the building of the KSRTC. For the purpose of proving the destruction to the buses, reliance was placed on the evidence of PWs 5,6, 8, 31 and 33. The evidence of PW5, 6 and 8 have already been referred to. PWs 5, 6 and 8 have identified some of the miscreants. The evidence of PW33 is to the effect that on the date of incident, at about 12 in the noon, when he reached the eastern gate of Chief Office through the Taluk Office Road, he saw a group of persons coming in procession along the road, causing damage to the vehicles on either side of the road. According to him, there were about 40 persons in the procession. Apart from smashing the vehicles, they were also seen pelting stones. But, his identification in court was confined only to some of the accused. His identification during the investigation is of no consequence. In fact, he was a Mechanic Cr.A.Nos.384/06, 385/06 & 1279/07 35 in the KSRTC, working in the Thiruvananthapuram City Depot. PW31 was the Manager (Maintenance and Works) in the KSRTC Chief Office during the relevant period. He was present in office when the incident occurred. He found to his dismay a few persons indulging in smashing KSRTC buses, which were parked in the Vazhapally Road in front of the Transport Bhavan. After the trouble was over, he along with the Works Manager, went to the place and was satisfied that considerable damage was caused to the vehicles. He obtained a detailed report regarding the damage caused to the buses and as per the direction given by the Mechanical Engineer and the Executive Director, he submitted a report, assessing the actual cost of the damage caused to the buses for submitting it before the Managing Director. That is what is extracted in the Judgment of the Court below. The Court below has considered the evidence of various witnesses in this regard and has also taken pains to identify the miscreants, who had indulged in wanton activities. It is unnecessary to repeat those items of evidence and it is already noticed that no one can dispute that considerable damage and destruction had been caused to KSRTC vehicles. Cr.A.Nos.384/06, 385/06 & 1279/07 36
43. It is significant to notice that several KSRTC employees had suffered injuries in the incident. But, for want of proper evidence in this regard, the Prosecution was unable to fix liability on any of the accused. The Court below has made its finding regarding the offence punishable under Ss.143, 147 and 148 IPC and S.3(2)(e) of the PDPP Act, based on the identification of the various witnesses in court. The matter has been dealt with elaborately by the Court below. It is idle for the appellants to say that there was no proper identification and so, it was not possible to say, who had caused obstruction to the KSRTC buses. Moreover, when a group of persons cause damage to public properties, each one of that illegal group will be held liable for the acts of the other members in the group also.
44. One cannot dispute that there was an unlawful assembly and that they had indulged in rioting. Most of them had weapons with them and the Court below has sought to cast liability on those accused persons, who were identified before Court. Obviously, the acts committed by those persons can be treated to be only in furtherance of the common object of Cr.A.Nos.384/06, 385/06 & 1279/07 37 causing destruction and creating terror in the area. It is idle for the appellants to contend that the finding in this regard is incorrect or illegal.
45. Now, what remains to be considered is the offence that is alleged to have been committed by A17 and A19. It has already been noticed that there was no pre-determination or pre- meditation in their acts. It was a spontaneous act, arising out of the circumstances disclosed by the evidence in this case. There is nothing to show that they had inflicted repeated blows on Rajesh with the weapons, they were alleged to possess. The fact remains that the blows were inflicted on the head of Rajesh. There is nothing to indicate that there was any intention to cause the death of Rajesh. It has to be remembered that after Rajesh had fallen on the ground, the accused left without inflicting too many blows and at a later stage, Rajesh succumbed to the injuries sustained by him. It is too difficult to come to the conclusion that A17 and A19 had the intention to do away with Rajesh. They may have caused bleeding injuries to Rajesh and they may be inflicted injuries to his body. But, that by itself is not sufficient to hold that those persons are guilty of the offence of Cr.A.Nos.384/06, 385/06 & 1279/07 38 murder. There is nothing to show that they had any intention to cause the death of Rajesh or to inflict such injury, which they knew, will cause the death of Rajesh. On an evaluation of the evidence with regard to this aspect, it is felt that it will be appropriate to find those persons guilty of the offence punishable under S.326 IPC only. One may say that the finding regarding the person liable for causing destruction to the KSRTC buses and also the offences under the P.D.P.P. Act and I.P.C. covered by those acts, no interference is called for.
46. The State in its appeal, has stated that the sentence imposed on the accused persons for the various offences committed by them, are inadequate. It has to be stated that there is some substance in the above complaint with reference to the offence punishable under S.3(2)(e) of the PDPP Act. The menace of causing destruction to the public property has been on the increase in recent times and the miscreants are able to go scot-free for various reasons. In fact, it is felt that this attitude should be discouraged and if found guilty, severe punishments should be imposed on them. But, in this case, considering the fact that the incidents which gave rise to this case occurred in Cr.A.Nos.384/06, 385/06 & 1279/07 39 the year 2000, at this distance of time, it may not be proper and justifiable to enhance the sentences in this regard. In the result, I. Cr. A. Nos.384 and 385 of 2007, are disposed of as follows :
(a) The conviction and sentence imposed on A17 and A19 for the offence punishable under S.302 r/w S34 IPC are set aside and they are found guilty of the offence punishable under S.326 r/w S.34 IPC and each of them is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.30,000/-
each, in default of payment of which, they shall be sentenced to rigorous imprisonment for two years. If the fine amounts are released, a sum of Rs.55,000/- (Rupees Fifty Thousand only) shall be given to the legal heirs of Rajesh.
(b) A1 to A7 and A25 to A33 are acquitted of the charges under S.120B r/w S.3(2)(e) of the PDPP Act.
(c) The conviction and sentence of A1 to A7, A9 to A12, A14, A16 to A19 for the offences punishable under Ss.143, 147, 148 IPC, S.3(2)(e) of the PDPP Act r/w S.149 IPC are upheld and confirmed.
Cr.A.Nos.384/06, 385/06 & 1279/07 40
(d) The conviction and sentence of A1, A2 and A25 to A33 for the offences punishable under Ss.109 and 111 IPC are set aside and they stand acquitted of the said offences.
(e) The bail bonds of those persons, who are on bail and who have been acquitted of all charges, shall stand cancelled and they are set at liberty. Set off as per law will be allowed.
(f) Those persons, who are on bail and who are convicted and sentenced for various offences under this Judgment, shall surrender before the Trial Court for undergoing sentence.
II. Cr. A. No.1279/07 stands dismissed.
K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.Nos.384/06, 385/06 & 1279/07 41 K.BALAKRISHNAN NAIR, & P.BHAVADASAN, JJ.
============================= Cr.A.Nos.384 & 385 of 2006 & 1279 of 2007 ============================= JUDGMENT DATED 14TH JANUARY 2010 ============================= Cr.A.Nos.384/06, 385/06 & 1279/07 42 Cr.A.Nos.384/06, 385/06 & 1279/07 43