Kerala High Court
Anilkumar @ Arumughan vs State Of Kerala on 7 November, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940
Crl.Rev.Pet.No. 3455 of 2005
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CRA 183/2001 of ADDITIONAL SESSIONS COURT (ADHOC)-I, PALAKKAD
DATED 07-11-2005
CC 242/1998 of J.M.F.C., CHITTUR DATED 27-04-2001
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REVISION PETITIONER(S)/APPELLANTS/ACCUSED NOS.1 TO 9 :-
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1. ANILKUMAR @ ARUMUGHAN, S/O.KRISHNAN,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
2. MANIKANDAN, S/O. MANIYAN,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
3. CHANDRAN, S/O. CHAMI,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
4. VELAYUDHAN SWAMI, S/O. KRISHNAN,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
5. SUDEVAN, S/O. VELAYUDHAN,
PLAYAMPALLOM, TENARI, KAYARAMKODE.
6. UDAYABHANU, S/O.SWAMINATHAN,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
7. SELVAN, S/O. NARAYANAN,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
8. JAMISA, S/O. IBRAHIM,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
9. VASU, S/O. KANDAN,
PLAYAMPALLOM, THENARI, KAYARAMKODE.
BY ADVS.SRI.P.VIJAYA BHANU
SMT.P.MAYA
RESPONDENT(S)/RESPONDENT/COMPLAINANT :-
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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.SREEJA.V.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
13-04-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.UBAID, J.
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Crl.R.P. No.3455 of 2005
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Dated this the 13th day of April 2018
ORDER
The revision petitioners herein are the nine accused in C.C. No.242/1998 of the Judicial First Class Magistrate Court, Chittur. They faced prosecution in the court below on the allegation that at about 6.50 p.m. on 5.5.1998, on the public road in front of the office of the Communist Party of India (Marxist) at Nallepilly Junction, they all obstructed the de facto complainant Chenthamarakshan, assaulted and attacked him due to political animosity, and inflicted injuries on his body with weapons. The police registered the crime on the F.I.Statement given by the said Chenthamarakshan, and after investigation, the police submitted final report in court. All the nine accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them under Sections 143, 147, 148, 341, 323, 324 and 355 read with Section 149 IPC.
2. The prosecution examined eight witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 and MO2 properties, including the weapon of offence were also Crl.R.P. No.3455 of 2005 -: 2 :- identified during trial. All the accused denied the incriminating circumstances, and projected a defence of total denial when examined under Section 313 Cr.P.C.. They did not adduce any evidence in defence.
3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for three months each under Section 143 IPC, to undergo rigorous imprisonment for one year each under Section 147 IPC, to undergo rigorous imprisonment for two years each under Section 148 IPC, to undergo rigorous imprisonment for 15 days each under Section 341 IPC read with Section 149 IPC, to undergo rigorous imprisonment for six months each under Section 323 IPC read with Section 149 IPC, to undergo rigorous imprisonment for three years each under Section 324 IPC read with Section 149 IPC, and to undergo rigorous imprisonment for one year each under Section 355 IPC read with Section 149 IPC. Aggrieved by the judgment of conviction dated 27.4.2001, the accused approached the Court of Session, Palakkad with Crl.A. No.183/2001. In appeal, the learned Additional Sessions Judge (Adhoc)-I, Palakkad confirmed the conviction, but modified the sentence under Sections 148 and Crl.R.P. No.3455 of 2005 -: 3 :- 324 IPC. The conviction and sentence under the other Sections were maintained. On modification, the sentence under Sections 148 and 324 IPC was reduced to rigorous imprisonment for one year each. The direction to pay a compensation of `10,000/- each to PW1 was also modified by a the appellate court, and the amount of compensation was reduced to `2,000/- each. Now, the accused are before this Court in revision, challenging the legality and propriety of the conviction and sentence.
4. On hearing both sides, and on a perusal of the materials, I find that there are clear and satisfactory materials to prove the complicity and guilt of the accused Nos.1 and 2 in this case. But, as against the accused Nos.3 to 9, there is no satisfactory evidence. So also, there is nothing definite and satisfactory to prove the offence of unlawful assembly, or rioting. PW1 is the de facto complainant, and PW2 and PW3 are the eye witnesses. According to PW1, he was obstructed and assaulted while he was riding his bicycle with PW2 as pillion rider. PW3 is another party man, who witnessed the incident at the spot of incident.
Crl.R.P. No.3455 of 2005-: 4 :-
5. Ext.P1 is the F.I.Statement given by PW1. His case in the F.I.Statement is that he was in fact obstructed on the public road by the accused Nos.2 to 5, and thereafter he was assaulted by all the nine accused. The 1 st accused inflicted injuries on his body with a knife, and the others kicked him and also beat on the various parts of his body with hands, and also with chapels. But the question is whether he is fully corroborated by the other eye witnesses. PW1 is definite in evidence that he was obstructed on the public road by the accused, the assault was started by the 2nd accused, the others joined the assault and all the accused inflicted injuries on his body. It appears that the main grievance of the complainant in the Ext.P1 Statement, and also in his evidence is that practically, he was obstructed by the 2nd accused, and he was first attacked by him. During this attack, the 1st accused stabbed on his body with a knife. He identified the MO2 knife as the weapon of offence used by the 1 st accused. Infliction of simple injury by the 2nd accused by beating with hands is also well proved by PW1. But, as against the accused Nos.3 to 9, his evidence is not satisfactory and acceptable in view of the evidence given by PW2 and PW3. Crl.R.P. No.3455 of 2005 -: 5 :-
6. PW2 and PW3 have given definite evidence against the accused Nos.1 and 2. Both the witnesses are definite that the attack on PW1 was first made by the 2 nd accused Manikandan, and the obstruction was also made by him on the public road. During the attack made by the 2 nd accused, according to them, the 1st accused stabbed on the various parts of the body of PW1 with a knife. These two witnesses also identified the MO2 knife in court. As regards the accused Nos.3 to 9, these witnesses are not in a position to say exactly, or in detail as to what overt act was done by each of these persons, or what injury was in fact inflicted by these persons. Though these two witnesses casually stated about the presence of accused Nos.3 to 9, they could not say definitely what overt act was in fact done by the accused 3 to 9. As against them, their statements are quite casual, and their evidence does not contain anything definite and specific to implicate the accused Nos.3 to
9. Practically, their evidence as against them is that, they were also present somewhere there. The assault was made by the accused Nos.1 and 2, PW1 was obstructed on the road by the 2 nd accused, and injuries with weapon were inflicted by the 1 st Crl.R.P. No.3455 of 2005 -: 6 :- accused. Assault by the 2nd accused with hands, or infliction of simple injury with hands is also proved by PW2 and PW3. Their evidence practically and mainly as against the accused Nos.1 and 2. As against the others, their evidence is not satisfactory. When that is the evidence given by the ocular witnesses, who also belong to the party of PW1, I feel it not safe to accept the evidence of PW1 against the accused Nos.3 to 9. Any way, on an appreciation of the evidence as discussed above, I find that there is clear evidence against the accused Nos.1 and 2 under Sections 341, 323 and 324 IPC.
7. Of course, it is true that there is something casual in the evidence of PW1 to PW3 regarding the presence of the accused Nos.3 to 9 at or near the scene of incident. Their involvement or participation is not properly proved. What is at the best proved by evidence is only the assault made by the accused Nos.1 and 2, and evidence convinces the court that it was made by them with the common intention to attack PW1 due to political rivalry. There is nothing in evidence to constitute the offence of unlawful assembly and rioting. When there is no evidence to prove the complicity or participation of the others, Crl.R.P. No.3455 of 2005 -: 7 :- and when evidence is mainly against the accused Nos.1 and 2, the court cannot find a case of unlawful assembly, or rioting, which would necessary involve the participation of five persons, or more. Thus, I find that the conviction under those Sections will have to be set aside. However, under the other Sections found against the accused Nos.1 and 2 (Sections 341, 323 and 324 IPC), Section 34 IPC can be applied, and the accused Nos.1 and 2 can be convicted under Sections 341, 323 and 324 IPC with the aid of Section 34 IPC.
8. The courts below have convicted the accused under Section 355 IPC also. What is punishable under Section 355 IPC is an act of assault with the object of dishonouring a person. Mere assault or infliction of injuries voluntarily during an assault, will not by itself attract Section 355 IPC. In this case, what is at the best proved is a mere voluntary assault by infliction of injury with common intention. There is nothing in the evidence of PW1, or in the F.I.Satement to show that the accused assaulted him, or inflicted injuries on his body with the object of dishonouring him. In the absence of such elements proving the object to dishonour the injured, the conviction under Crl.R.P. No.3455 of 2005 -: 8 :- Section 355 IPC is also liable to be set aside.
9. Now the question of sentence. The medical evidence given by PW7 read along with the Ext.P7 wound certificate shows that PW1 had sustained an incised wound 5 x 2 cms below the right scapula, a second incised wound 3 x 1 cms over the left wrist, abrasions over the right elbow, right knee, left ankle and left arm, a third incised wound 5 x 1 cms muscle deep over the left forearm, and a fourth incised wound 3 x 1 cms over the left upper arm. All the injuries were noticed as fresh injuries by the doctor at about 10 p.m. on 5.5.1998. The incident of assault happened at about 6.50 p.m. The alleged incident happened in May, 1998. About 20 years have elapsed since the date of incident. On an examination of the materials, I find that what actually led to the alleged incident of assault is political rivalry between two factions. It appears that on some previous day, the members, or activists of the party of the accused were attacked by the members of the other party, and probably, the incident alleged in this case happened as retaliatory incident. Any way, infliction of injuries on the body of an individual cannot have any excuse or justification on the ground of political rivalry. Crl.R.P. No.3455 of 2005 -: 9 :-
10. This is a case where, nine persons were prosecuted, when the allegations and evidence are practically and mainly only against two persons. Evidence shows that it was not a pre- planned assault or attack. Though the injuries noted by the doctor were five in number, no serious injury was noticed by the doctor. All are simple injuries. On a consideration of all the relevant aspects, including the long lapse of 20 years and also the age of the accused Nos.1 and 2 at the time of the incident, I feel that the minimum sentence possible under the law, and also a direction to pay adequate amount of compensation will do justice to both sides.
In the result, the revision petition is allowed in part. The accused Nos.3 to 9 (revision petitioners 3 to 9) are found not guilty of any of the offences, and they are acquitted of all the offences in revision. Accordingly, the conviction and sentence against them under Sections 143, 147, 148, 341, 323, 324 and 355 IPC read with Section 149 IPC in C.C. No.242/1998 will stand set aside, and they will stand released from prosecution.
The accused Nos.1 and 2 (revision petitioners 1 and
2) are found guilty of the offences under Sections 341, 323 and Crl.R.P. No.3455 of 2005 -: 10 :- 324 IPC, and they are convicted there under with the aid of Section 34 IPC. They are found not guilty of the offences under Sections 143, 147 and 148 IPC, and under Section 355 IPC. The conviction and sentence against the accused Nos.1 and 2 under the above Sections will stand set aside. But, the conviction against them under Sections 341, 323 and 324 IPC is confirmed in revision, subject to the modification that it shall be with the aid of Section 34 IPC. The sentence against the accused Nos.1 and 2 will stand modified and reduced as follows :-
(a) The jail sentence imposed by the courts below under Sections 341, 323 and 324 IPC will stand reduced and modified to imprisonment till rising of the court.
(b) The direction of the court below to pay compensation under Section 357(3) Cr.P.C. will stand modified, and the accused Nos.1 and 2 are directed in revision under Section 357(4) Cr.P.C.
to pay a compensation of `30,000/- (Rupees Thirty thousand only) and `10,000/- (Rupees Ten thousand only) respectively to PW1, in lieu of modification and reduction of sentence. The amount of compensation payable by the 1st accused (`30,000/-), and the amount of compensation payable by the 2nd accused Crl.R.P. No.3455 of 2005 -: 11 :- (`10,000/-) shall be inclusive of the amount already ordered by the trial court.
(c) In case of default in making payment of compensation, the accused Nos.1 and 2 will have to undergo a default sentence of rigorous imprisonment for six months and three months respectively.
(d) The revision petitioners 1 and 2 (accused Nos.1 and 2) will surrender before the trial court within one month from this date to serve out the modified sentence and make payment of compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence under Sections 341, 323 and 324 IPC, and realise the amount of compensation, or enforce the default sentence.
Sd/-
P.UBAID JUDGE Jvt/13.4.2018 /True copy/ P.A to Judge