Kerala High Court
Bijumon vs State Of Kerala Represented By The on 8 February, 2012
Author: V.K. Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 8TH DAY OF FEBRUARY 2012/19TH MAGHA 1933
CRL.A.No. 1022 of 2003 ( )
--------------------------
SC.49/2001 of ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM
APPELLANTS:
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1. BIJUMON, S/O. PADMANABHAN UNNI,
SHELVA NIVAS (VI-6),
CHERTHALA MUNICIPALITY.
2. HARI K., S/O. P.V.KUNJIKUTTAN,
RAMAPRASADOM VEETIL,
KOTTAKKAKAMKARA, TRIPUNITHURA.
3. SUDHEESH, S/O. SETHUMADHAVAN,
ANISSERIYIL VEDU,
KOTHAMANGALAM.
4. SIVADASAN P.N, S/O. KOCHAPPU,
PULINIRIPPIL VEEDU,
THIRUVANIYOORKARA.
5. MAHESHKUMAR KRISHNANKUTTY
KARTHIKAYIL VEEDU,
KANNANKULANGARA, TRIPUNITHURA.
6. DINU ANTONY, S/O. ANTONY,
CHALANCHERRY VEEDU, UDAYA ROAD,
VYTTILA, THAIKOODAMKARA.
7. KARTHIKEYAN, S/O. MURUGAN,
KARTHIKA NIVAS, PALLIPURAM KARA,
CHERTHALA.
8. SYAM RAMESH, S/O. RAMESH BABU,
KOTTAYIL EAST, KANJIRATHI KADUNGALOORKARA, ALUVA.
9. NAZAR, C.M., S/O. MUHAMMED,
THURUTHIPARAMBUVEEDU,
THANGAL NAGAR, PALLURUTHY.
10. SUDHEESH V.B., S/O. V.C. BALAKRISHNAN,
VEETTITHARAYAIL, CHERAIKARA, NORTH PARAVOOR.
11. RAJEEVKUMAR, S/O. RAMAKRISHNA PILLAI,
POKKIMATTOM VEEDU, THRICHATTUKULAMKARA,
CHERTHALA.
2
12. SATHEESH BABU, S/O. IYYER,
ARATTUMANAYIL, ETTUMANOORKARA,
PUTHENCRUZ VILLAGE.
13. AJISHKUMAR, NARAYANANKUTTY,
MADATHILVEEDU, MURIYAMANGALAM KARA,
THIRUVANIYOOR VILLAGE.
BY ADVS.M/S.T.D.ROBIN
K.S.ANIL, PHILIP T.VARGHESE
& THOMAS T.VARGHESE
RESPONDENT:
--------------
STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTING THE ADDITIONAL S.I. OF POLICE, TIRPUNITHURA.
BY PUBLIC PROSECUTOR SMT. S. HYMA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
----------------------------------------
Crl.A.No.1022 of 2003
----------------------------------------
Dated the 8th day of February , 2012
JUDGMENT
The appellants are accused Nos. 2, 5 to 15 and 17 in crime No.211/2006 of Hill Palace Police Station who faced the trial in S.C.No.49 of 2001 along with S.C.No.362 of 2001. This appeal is filed challenging their conviction under sections 143, 147, 341, 353, 332 and 225-B read with section 149 of the Indian Penal Code and the order under sections 4(1) and 5 of the Probation of Offenders Act.
2. The prosecution case is that, at about 1.30 p.m on 5.12.1996, the accused, 18 in numbers formed themselves into an unlawful assembly at Thripunithura and in furtherance of their common object, the accused persons wrongfully restrained the passenger buses and started writing on the buses as 'RLV Students on strike'. On getting information about the commission of the offence, the Sub Inspector of Police. Hill Palace police station, rushed to the place of incident and restrained three persons who were writing on the buses and the above three CRL.A.NO.1022/03 :-2-:
persons were arrested and taken into custody and put them in the police jeep. It is the further case of the police that accused Nos.1 to 15 assaulted the Sub Inspector of Police causing grievous hurt to him and thus he was intimidated. According to the Police, the above act of the accused persons caused obstructions to the discharge of official duty of the public officer and the accused persons have also released the three arrested persons from the legal custody of the Police and thus the accused have committed the above mentioned offences. On the basis of the above allegation, PW1 preferred a suo motu report based upon which Ext.P2 FIR was registered for the said offences, and finally, on completing the investigation, report was filed in the court of Additional Chief Judicial Magistrate, Ernakulam where the same was received as C.P.No.9 of 2000 and the learned Magistrate committed the case against all the accused except A18, as he was absconding. Therefore the case against A18 was refiled as C.P.No.41/2000. But subsequently, A18 appeared before the committal court and his case was also subsequently committed to the Sessions Court. On receiving the committal proceedings, the Principal Sessions Court took cognizance of the offence and made CRL.A.NO.1022/03 :-3-:
over the case to the first additional Sessions Judge (Adho-1), Ernakulam for trial and disposal. Though the case with respect to seventeen accused was committed and S.C.No.49/2001 was instituted , only A2, A5 to A15 and A17 appeared before the trial court and therefore, the case against A1, A3, A4 and A16 was split up and the case against A18 is subsequently committed upon which S.C.No.362/2001 was instituted. Subsequently, the above two cases were transferred to the court of Additional Sessions Judge, Adhoc-1 Ernakulam. When the Sessions case No.49/2001 was taken again, the accused Nos. 4 and 16 were absent, but other accused in S.C.No.49/2001 and 362/2001 were present before the court. Therefore, after hearing the prosecution as well as the defence, a formal charge was framed against the accused who faced the trial , i.e., A2, A5 to A15 and A17 and also against A18 in S.C.No.362 of 2001 for the offences under sections 143, 147, 341, 353, 333, 225(b) read with section 149 IPC. When the said charge read over and explained to the accused, they denied the same and pleaded not guilty and consequently, the prosecution adduced its evidence consists of the testimony of PWs. 1 to 11 and Exts. P1 to P9. M.O-1 identity card is also CRL.A.NO.1022/03 :-4-:
produced and identified. No evidence, either oral or documentary, was produced from the side of the defence. Finally, by a common judgment dated 31.5.2003 in S.C.No.49 of 2001 and 362 of 2001, the trial court has found that the accused persons have voluntarily caused hurt to PW1 to deter him from doing his duty and though the prosecution has not succeeded in proving the offence under section 333 IPC, there is ample evidence to prove that the above accused persons have committed the offences punishable sections 143, 147, 341, 353, 332, 225-B read with Section 149 IPC, and the very same court has further found that the prosecution has failed to prove any of the offences alleged against accused No.18 who faced the trial in S.C.No.362/2001. Thus when the accused in S.C.No.49/2001 were convicted for the above offences, they were acquitted for the charges under section 333 and accordingly, they were acquitted under section 235 of Cr.P.C, but they were convicted for the offences under sections 143, 147, 341, 353, 332, 225-B read with Section 149 IPC and A18, the accused in S.C.No.362 of 2001 is acquitted of all the charges levelled against him. On such conviction, the appellants in this appeal, who are CRL.A.NO.1022/03 :-5-:
accused Nos.A2, A15 to A15 and A17, considering the circumstance of the case and the nature of the offences, according to the learned Judge, it was expedient to release them on probation of good conduct and thus they were released on probation of good conduct under section 4(1) of the Probation of Offenders Act for a period of two years on execution of a bond for Rs.5000/- with two solvent sureties each for the like sum. It is also ordered that the accused shall report before the District Probation Officer, within 15 days of execution of the bond under section 4(3) of the Probation of Offenders Act , and continue to do so every three months. The Probation Officer is also directed to sent a report to the court during every quarter till the expiry of probation period. The appellants/accused are directed to pay a compensation of Rs.500/- each to PW1 under section 5 of the Probation of Offenders Act. It is also held that the amount ordered to be paid as compensation is liable to be recovered as fine , in default of payment of compensation, they are liable to undergo simple imprisonment for fifteen days each. It is the above conviction and order and also the direction to pay compensation are challenged in this appeal.
CRL.A.NO.1022/03 :-6-:
3. I have heard Sri T.D. Robin, the learned counsel for the appellants and Smt. Hyma, the learned Public Prosecutor, appearing for the State.
4. As I indicated earlier, to prove the case of the prosecution, PWs 1 to 11 were examined and produced certain documents. Among the witnesses examined, PW1 is the then S.I of Police, Hill Palace Police station, Thripunithura, who is the alleged injured in this case. When PW1 was examined, he had deposed that while he was attending the crime conference at the office of Dy.S.P at Thrikkakara, on 5.12.96, he received wireless message regarding the illegal act of the students of RLV College, Thripunithura near the Palace Girls High School, and immediately he along with PW3, the Probation Sub Inspector and one Additional S.I, rushed to the spot in a police jeep driven by PW4. According to PW1, they reached the spot at 1.30 p.m and thereafter the alleged incident took place. According to PW1, on seeing the illegal acts of the students, PW1 apprehended three students who were painting slogans on the Blue Star bus and when he put them into police jeep, A1 to A15 forcefully released them. According to PW1, when he resisted the students, A1 CRL.A.NO.1022/03 :-7-:
pushed his hand and his hand hit on the iron bar of the Police jeep as result of which he sustained fracture injury on the left ring finger. According to PW1, immediately police flying squad reached there and with their assistance, A1 to A15 were arrested on the spot and taken to the Hill Palace Police Station. PW2 is an independent witness who was working as a bus conductor but he turned hostile to the prosecution and Ext.P3 is the contradiction marked through PW2. PW3 is the Probation S.I who deposed fully supporting the prosecution case and in tune with the deposition of PW1. PW4 is the Police Jeep Driver in which vehicle allegedly PWs 1 and 3 arrived at the spot. PW4 says that there was a scuffle at the spot between the students and PW1 and as a result of which PW1 sustained injury. PW5, who was in the flying squad arrived at the spot, was then working as Head Constable. His evidence is also to the effect that when he arrived there, PW1 and students engaged in a scuffle and, according to PW5, PW1 sustained injury in the said scuffle. PW6 is a doctor who was attached to the Vijayakumara Menon Memorial Hospital, who issued Ext.P4 wound certificate dated 7.12.96 with respect to the injury of PW1. PW7 is an attestor to Ext.P5 scene mahazar. PW8 CRL.A.NO.1022/03 :-8-:
is the Police Constable attached to Hill Palace Police Station who is an attestor to Ext.P6 mahazar for the seizure of identity card in the name of Subin Vamattam ,who is the 16th accused in this case. PW9 is Doctor A. Rajakumari attached to Taluk Head Quarters Hospital, Thripunithura who issued Ex.P7 wound certificate dated 5.12.96 with respect to wound of PW1. PW10 is an independent witness who was then working as driver of KSRTC but he turned hostile. Ext.P8 is the contradiction of PW10. PW11 is the then Addl.S.I of Police, Hill Palace Police Station who undertook the investigation and eventually laid the charge. It was PW11 who prepared Ext.P1 mahazar of the bus. These are the evidence and materials relied on by the learned Judge of the trial court in support of his finding and convicting the appellants for the above said offence.
5. Sri T.D.Robin, the learned counsel appearing for the appellant strenuously submitted that the findings of the court below are improper, illegal and against the evidence and materials on record. Reiterating the stand taken by the defence, during the trial of the case, the learned counsel submitted that PW1 sustained injury during the scuffle. Connected with the CRL.A.NO.1022/03 :-9-:
incident, even though several students, including boys and girls were taken to the Hill Palace Police Station, the boys who made as accused in the crime retained there and several girl students were let off and the boys were made accused as the Sub Inspector sustained injury for which the accused are not in any way responsible. The learned counsel vehemently submitted that the very initiation of the prosecution allegation cannot be believed and it is under shadow of doubt. It is pointed out that though the alleged incident had taken place in front of the Palace Girls High School, Thripunithura, which place of occurrence is within one or two kilo metres from the Hill Palace Police satiation, no intimation was given to the police station and it is unbelievable that wireless message was given to PW1 who was attending the crime conference at Thrikkakara. It is also pointed out by the counsel that there is no clear and convincing evidence as to from which source the prosecution witness, namely, PW1 received wireless message. So according to the learned counsel, the prosecution story as such cannot be believed. The learned counsel submitted that absolutely there is no evidence to show that the accused or the students group which allegedly entered in CRL.A.NO.1022/03 :-10-:
writing slogans on the bus committed any offence so as to take such students into lawful custody. It is pointed out that though the prosecution has alleged that there was unlawful assembly, the common object of such unlawful assembly is neither pleaded nor proved. According to the learned counsel, in order to justify the so called action of PW1, in taking into custody the persons, namely, A16 to A18, there must be specific charge or allegation that they have committed such and such offences which necessitated the arrest or detention of such persons. In the absence of any such specific pleadings or evidence, according to the learned counsel, the story narrated by PW1 that he had arrested and detained A1 to A18 cannot be believed. It is the further submission of the learned counsel that, the evidence on record, particularly, the evidence of PWs.1, PW4 and PW5 regarding the arrest of A16 to A18 and the allegation that they were forcefully released from the lawful custody are not convincing and that the same is contradicting each other. It is also the submission of the learned counsel that, the investigation in this case was conducted by PW11, who is inferior to PW1, on whose report Ext.P2 FIR was registered and therefore, the CRL.A.NO.1022/03 :-11-:
accused were prejudiced. Another point raised by the learned counsel is that the story of the prosecution that, PW1 sustained injury, is also unbelievable since the evidence in this regard adduced by the prosecution are insufficient and not trustworthy. According to the learned counsel, though PW7 was examined, the evidence of PW7 does not reveal that PW1 sustained any grievous injury. It is further pointed out that, after two days from the date of the incident, PW1 contacted PW6, a doctor attached to a private hospital, and obtained Ext.P4 certificate. But the deposition of PW6 is not supported by any other materials to prove that PW1 sustained grievous injury. Thus, according to the learned counsel, if the interested testimony of PW1 and PW3, are excluded, there is no reliable, convincing and independent evidence to prove the case of the prosecution against the appellants/accused. Therefore, the findings of the court below and the conviction recorded by it are liable to be set aside.
6. On the other hand, the learned Public Prosecutor vehemently submitted that the accused were engaged in a strike and on getting information regarding the law and order situation, PW1 and party moved at the spot and when PW1 removed A16 to CRL.A.NO.1022/03 :-12-:
A18 and put them in the police jeep, other accused tried to forcefully rescue them and at the instance of A1, PW1 sustained grievous injury and these facts are proved by adducing sufficient evidence which considered by the trial court. According to the learned Public Prosecutor, PW1 is the injured and his evidence need not be discarded or the same is not rendered as unbelievable, simply because he is a police officer or the injured in this case. According to the learned Public Prosecutor, the evidence of PW1 is further corroborated by the evidence of PW3, PW4 and PW5. It is the further submission of the learned Public Prosecutor that, the medical evidence consists of the deposition of PWs 6 and 9 supported by documentary evidence, i.e., Exts.P4 and P7 wound certificates, further proved the factum of grievous injury sustained by PW1. According to the learned Public Prosecutor, infirmities or contradictions pointed out by the learned counsel for the appellants are minor in nature and the evidence of PW1 supported by the medical evidence alone are sufficient to prove the allegation against the appellants and thus, according to the learned Public Prosecutor, the trial court is correct in its finding and convicting the appellants.
CRL.A.NO.1022/03 :-13-:
7. I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor. I have perused the judgment of the court below and scrutinized the evidence and materials on record.
8. It is relevant to note that the court below has framed a charge against the accused and the first charge is to the effect that , on 5.8.1996 at 1.30 p.m, the accused formed an unlawful assembly in front of the Hill Palace Girls High School, Thripunithura and thereby committed the offence punishable under section 143 read with Section 149 IPC. The second charge is to the effect that, in prosecution of the unlawful assembly, thereby they committed the offences punishable under section 147 read with Section 149 IPC. The third charge is that, by wrongfully restrained the passenger buses passing along the road and written 'RLV students on strike' on the body of the business and thereby committed offence punishable under sections 341 read with section 149 IPC. The fourth charge is that, the accused voluntarily caused grievous hurt on PW1, a public servant, to deter him from discharging his duty and thereby committed the offence punishable under section 353 read with section 149 IPC.
CRL.A.NO.1022/03 :-14-:
The fifth charge is to the effect that in the same transaction, in prosecution of the common object of unlawful assembly, released accused Nos. 1 to 15 (probably A16 to A18) from the lawful custody of PW1 and thereby committed the offence under section 225B read with section 149 IPC and the 6th charge is to the effect that, in the same transaction, in prosecution of the common object of unlawful assembly, assaulted PW1 (CW1) and party by using criminal force or deter him from discharging their duty and thereby committed the offences punishable under section 353 read with section 149 IPC. In the light of the rival arguments advanced and in the light of the evidence and materials on record, the question to be considered, especially in the light of the above charge, is whether the trial court is justified in its finding and convicting the appellants for the offence punishable under sections 143, 147, 341, 353, 332 and 225-B read with section 149 IPC. I have already referred to the evidence and materials available in the case on hand. Absolutely there is no evidence to show that A16, A17 and A18 were arrested for any of the charges mentioned, court charge or in the police charge. Going by the evidence of the deposition of PW1, the star witness of the CRL.A.NO.1022/03 :-15-:
prosecution, it appears that according to me, the riot alleged in the case is that the students had written on the wind screen of the Blue Star bus as 'RLV students on strike' and the buses came behind the said bus were lying there, as there was traffic block. PW1 while examination deposed that the students created obstruction against the free movement of the buses or the crew of the bus, namely, 'Blue Star' bus made in the complaint that they were not permitted to operate the service. In the further evidence of PW1, he has stated: "
". The above evidence of PW1 is not sufficient to hold that any of the accused in the crime committed any offence since those facts are not sufficient to constitute any of the offences charged against the accused. No documentary evidence is produced to show that the above mentioned three students were legally arrested or detained. Such documentary evidence is conspicuously absent and according to me, the same assumes importance in the light of the conflicting version of the prosecution witnesses. PW3, the then CRL.A.NO.1022/03 :-16-:
probation S.I of police deposed that:
"
..............
S.I .
S.I .
".
During the cross examination of PW3, he has stated:
" (Q)
(A)"
PW4, in his chief examination , apart from stating about the writing on the buses, he has stated:
" Bus side .. Sub
Inspector
...... SI
.
.
S.I
''.
So in the evidence of PWs 3 and 4, the time and stage at which
PW1 sustained injury and the reason for sustaining injury are
entirely different and it cannot be said that their evidence is
consistent. According to PW5, on getting information from the
control room, himself and party arrived at the spot and according CRL.A.NO.1022/03 :-17-:
to me, the information he received was :
"RLV College- paint
board bus S.I
arrest
...............".
PW5 further says :
''.. S.I
. S.I
10-30 .
arrest ."
In the deposition of PW5, it is stated that though he had arrived at the spot, he had no occasion to witness the alleged attempt on the part of the accused to rescue the arrested accused. Even according to his information there was an attempt from the part of the S.I to arrest the accused. So the evidence of PW5 is also not sufficient to prove that the accused tried to rescue accused Nos. 16 to 18 and in that incident PW1 sustained injury. So the prosecution evidence are not sufficient to prove that A16 to A18 committed any offence and there is no evidence to prove that those accused were legally arrested. The evidence of the prosecution witnesses are not consistent as to how PW1 sustained the alleged injury. Thus, the insufficient and inconsistent evidence of the prosecution shows that the main CRL.A.NO.1022/03 :-18-:
plank of the prosecution story is broken.
9. As rightly pointed out by the counsel for the appellants, the evidence on record are not sufficient to prove that PW1 sustained grievous injury in the alleged incident. The learned Judge of the trial court in his judgment itself, it is categorically found, particularly, in paragraph 15 that, " from the evidence it is not possible to discern that the accused had intention to cause or knows himself to be likely to cause grievous hurt. The accused were not armed with weapons. They were engaged in an agitation. The evidence shows that there was scuffle and in that PW1 sustained injury. From the evidence and circumstances it is not possible to arrive at a conclusion that the accused person have intentionally caused hurt to PW1". The above findings of the court below indirectly shows that the accused were not having necessary mens rea to commit the offence as alleged by the prosecution against them. Therefore, the only inevitable conclusion that can be arrived is that the prosecution has miserably failed to prove its case and the essential ingredients of the sections of offences CRL.A.NO.1022/03 :-19-:
alleged against the accused are not attracted.
1O. It is also pertinent to note that, no independent witness has supported the case of the prosecution. The only evidence, though the same are weak and insufficient, are that of the police personnels who are interested in this case. Thus on examination of the evidence of PW1, according to me, it appears that it is not safe to act upon his evidence, especially, in the light of the fact that the medical evidence is not fully supported his case. Though PW1 approached PW9 on the date of the incident itself, and Ext.P7 wound certificate was issued , PW9 has no case that PW1 sustained any grievous injury. If PW1 had actually sustained grievous injury, he need not had waited up to 7.12.96 and to meet PW6, a doctor who attached to a private hospital. Though PW6 deposed before the court that PW1 had fracture on his finger, the said opinion of PW6 is not supported by any material like X-ray or any other acceptable evidence. When PW1 claimed that plaster was affixed on his finger, according to PW6, there was no need for putting plaster. According to the learned Judge, that was a very minor contradiction, but according to me in the background of the above case, the above contradiction assumes importance, CRL.A.NO.1022/03 :-20-:
especially, when the prosecution has miserably failed to supply any documentary evidence other than the evidence of PW1 to show that PW1 sustained grievous injury. In this juncture, it is also relevant to note that the prosecution witnesses have no consistent case as to how PW1 sustained injury. Having regard to the above contradictions and infirmities in the evidence of prosecution witnesses, and in the absence of clinching and acceptable evidence, to the effect that PW1 sustained fracture injury, according to me, the findings of the court below that the accused have committed the offence under section 332 IPC cannot be approved.
11. In the light of the above discussion and in the light of the facts and circumstances and the evidence referred to above, I am of the view that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt and therefore, the findings of the court below cannot be approved.
Accordingly, the conviction recorded by the trial court against the appellants for the offences under section 143, 147, 341, 353, 332, 225B read with Section 149 IPC is set aside.
In the result, this appeal is allowed setting aside the
CRL.A.NO.1022/03 :-21-:
judgment dated 31.5.2003 in S.C.No.49 of 2001 and accordingly, the appellants/accused are acquitted of all the charges levelled against them. The bail bond if any executed by them is cancelled and they are set at liberty. If the appellants have already deposited the fine amount if any, they are entitled to get back the same. The appeal is allowed accordingly.
V.K.MOHANAN, JUDGE kvm/-
CRL.A.NO.1022/03 :-22-:
V.K. MOHANAN, J.
CRL.A. NO. 1022 OF 2003
JUDGMENT
DATED: 8.2.2012.
CRL.A.NO.1022/03 :-23-: