Kerala High Court
Muraleedharan @ Lamban Murali vs State Of Kerala on 24 November, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 24TH DAY OF NOVEMBER 2020/3RD AGRAHAYANA, 1942
Crl.Rev.Pet.No.1013 OF 2003(C)
AGAINST THE JUDGMENT IN CRL.APPEAL No.236/95 DATED 17-03-2003
OF FIRTS ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM
SC 109/94 DATED 29-07-1995 OF ASSISTANT SESSIONS COURT,
NEYYATTINKARA
REVISION PETITIONER/APPELLANTS/ACCUSED Nos.1 to 5:
1 MURALEEDHARAN @ LAMBAN MURALI,
S/O.MADHAVAN PILLAI, VENNALAYAM VEEDU,
THURUTHIYIL, KIZHAKKEVILA, PAPPANAMCODE,
MANUKULATHICHAMANGALAM DESOM, NEMOM VILLAGE.
2 SURESH,
S/O.SUKUMARAN NAIR,
LALITHA BHAVAN, NEAR MADANPARAM, KARUMAM,
MANUKULATHICHAMANGALAM DESOM, NEMOM VILLAGE.
3 MOHANAN,
S/O.KUTTAN PILLAI,
ATTUPURATH VEEDU, KARUMAM,
MANUKULATHICHAMANGALAM DESOM, NEMOM VILLAGE.
4 MADHU,
S/O.GOPINATHAN NAIR,
MUKKOLAYIL VEEDU, KARUMAM,
MANUKULATHICHAMANGALAM DESOM, NEMOM VILLAGE.
5 SADASIVAN,
S/O.RAGHAVAN ALIAS MAMMUKUNJU,
POOMUKHATHU VEEDU, KARUMAM,
MANUKULATHICHAMANGALAM DESOM, NEMOM VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.TONY MATHEW
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 06-11-2020, ALONG WITH Crl.Rev.Pet.1146/2009, THE
COURT ON 24-11-2020 PASSED THE FOLLOWING:
Crl.R.P.Nos.1013 of 2003 & 1146 of 2009
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942
Crl.Rev.Pet.No.1146 OF 2009
AGAINST THE JUDGMENT IN CRL.APPEAL No.4/2007 DATED 18-11-2008
OF SESSIONS COURT, THIRUVANANTHAPURAM
SC 362/95 DATED 15-12-2006 OF ASSISTANT SESSIONS COURT,
NEYYATTINKARA
REVISION PETITIONER/APPELLANT/ACCUSED No.6:
RAJAN @ VEDI RAJAN,
S/O.BHARGAVAN PILLAI,
APPOOTTI VEEDU, MUDUMPU, IDAGRAMOM,
MANUKULATHICHAMANGALAM DESOM, NEMOM VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENT/RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 06-11-2020, ALONG WITH Crl.Rev.Pet.1013/2003, THE COURT ON
24-11-2020 PASSED THE FOLLOWING:
Crl.R.P.Nos.1013 of 2003 & 1146 of 2009
..3..
ORDER
Dated this the 24th day of November, 2020 The revision petitioners in Crl.R.P.No.1013/2003 were the appellants 1 to 5/accused 1 to 5 in Crl.Appeal No.236/95 on the file of the first Additional Sessions Court, Thiruvananthapuram. The revision petitioner in Crl.R.P.No.1146/2009 was the appellant/6th accused in Crl.Appeal No.4/2007 on the file of the Sessions Court, Thiruvananthapuram.
2. PW10 laid charge sheet against accused Nos.1 to 17 including the revision petitioners herein for the offences punishable under Sections 143, 147, 148, 149 452, 427, 324, 307 and 436 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Section 3 of the Explosive Substances Act. When summons was issued to the accused from the committal court, all the accused except accused Nos.6 and 9 entered appearance. Since Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..4..
accused Nos.6 and 9 had absconded, the case against the others were committed to the Sessions Court, Thiruvananthapuram. The learned Sessions Judge made over the S.C.No.109/94 to the Assistant Sessions Court, Neyyattinkara for trial and disposal. Subsequently, accused No.6 entered appearance and on his appearance before the committal court, the learned Magistrate committed the case to the Sessions Court. The learned Sessions Judge made over the S.C.No.362/95 to the Assistant Sessions Court, Neyyattinkara for trial and disposal.
3. In S.C.No.109/94, the learned Assistant Sessions Judge, after having heard both sides, framed charge against accused Nos.1 to 5, 7, 8 and 10 to 17 for the offences punishable under Sections 143, 147, 148, 149, 452, 427, 324, 307 and 436 of the IPC and Section 3 of the Explosive Substances Act. The charge was read Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..5..
over to which all the accused pleaded not guilty.
4. During the trial of the case, PWs.1 to 12 were examined and marked Exts.P1 to P8 and MOs.1 to 9 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. They stated that they were purposely implicated in the case due to political rivalry at the instance of Communist Party of India (Marxist) leaders who were ruling the State then. When they were called upon to enter on their defence, no oral evidence was adduced. Exts.D1 to D7 were marked on the side of the defence.
5. By judgment dated 29.7.1995, the trial court found the accused 1 to 5 guilty of the offences punishable under Sections 143, 147, 148, 149, 452, 427, 324, 307 and 436 of the IPC and accordingly they were sentenced Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..6..
to undergo imprisonment under various spells including rigorous imprisonment for a period of six years each for the offence punishable under Section 307 of the IPC. The accused were found not guilty of the offence under Section 3 of the Explosive Substances Act and accordingly they were acquitted for the said offence. Challenging the conviction and sentence, the accused 1 to 5 preferred Crl.Appeal No.236/95 before the first Additional Sessions Court, Thiruvananthapuram. By its judgment dated 17.3.2003, the learned first Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Hence, accused Nos.1 to 5 filed Crl.R.P.No.1013/2003 before this Court.
6. During the trial in S.C.No.362/95 on the file of the Assistant Sessions Court, Neyyattinkara, the trial court framed charge against the 6 th accused for the offence punishable under Sections 143, 147, 148, 149, 452, 427, Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..7..
324, 307 & 436 of the IPC and Section 3 of the Explosive Substances Act. Upon pleading not guilty to the charge, PWs.1 to 10 were examined and marked Exts.P1 to P9(a) and MOs.1 to 7 on the side of the prosecution. He was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. When he was called upon to enter on his defence, no oral evidence was adduced. However, Ext.D1 certified copy of the deposition of PW1 when he was examined in S.C.No.362/95 was produced. The trial court on appreciation of evidence acquitted the accused for the offence punishable under Section 3 of the Explosive Substances Act and also for the offences punishable under Sections 427 and 436 of the IPC, but convicted for the offences under Sections 143, 147, 148, 149, 452, 324 and 307 of the IPC. He was sentenced to undergo rigorous imprisonment for various spells including Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..8..
rigorous imprisonment for five years for the offence under Section 307 of the IPC. All the sentences were directed to undergo concurrently. Challenging the conviction and sentence, the 6th accused preferred Crl.Appeal No.4/2007 before the Sessions Court, Thiruvanananthapuram. By its judgment dated 18.11.2008, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Hence, the 6 th accused preferred Crl.R.P.No.1146/2009 before this Court.
7. The prosecution case in brief is herein below:-
All the accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object of doing away the life of PW1, a DYFI worker, a youth wing of Communist Party of India (Marxist), due to their political enmity towards him, they being RSS workers, on 21.3.90 at about 3 am, i.e., after the night on Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..9..
21.3.90, trespassed into the compound of Karimampura Puthen Veedu in Nemom Village, Manukulathi Chamangalam desom, wherein PW1 was sleeping, armed with deadly weapons, like sword, 'vakathi', iron rods, sticks, hand bombs, etc. and exploded the bombs and thereupon destroyed the doors, glass windows, etc. of the house. and when PW1 escaped to the nearby house of PW2, the accused chased him and the 1 st accused cut PW1 with MO1 sword at the right side of his neck causing a deep injury. Thereafter accused Nos.2 to 17 dragged him from the veranda to the courtyard. Then the 2 nd accused made an open declaration to do away with his life.
Thereafter, accused Nos.1 to 6 inflicted cut injuries and blows on various parts of his body. When CW3 attempted to prevent the accused, the 1st accused cut her with a sword on her right wrist. Then the 7th accused set fire on the South-Western corner of the residential building of Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..10..
PW2 and thereby caused damage to the roof of the building and loss of Rs.4,000/- to PW2. All the accused were members of the unlawful assembly and therefore all the accused shared common object to commit the offences punishable under Sections 143, 147, 148, 149, 452, 427, 324, 307 and 436 of the IPC and Section 3 of the Explosive Substances Act.
8. Heard the learned counsel for the revision petitioners and the learned Senior Public Prosecutor for the State.
9. In respect of the occurrence, PW9, on getting information that PW1 was admitted in the Medical College Hospital by sustaining injuries at a place near Karimam Junction, proceeded to the hospital. As PW1 was not capable to give a statement, he recorded Ext.P1 FIS given by PW2 who is none other than his sister at 4 am on the same day. Based on Ext.P1, PW9 registered Ext.P1(a) FIR Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..11..
pertaining to Crime No.70/90 of Nemom Police Station against about 50 persons including the accused 1 to 6 in the case for the aforesaid offences. He had also recorded Ext.P1(b) body note of PW1 and Ext.P1(c) body note of CW3 who was undergoing treatment in the General Hospital, Thiruvananthapuram. Further investigation of the case was conducted by PW11, the then Circle Inspector of Police, Thampannoor.
10. The incident in this case had occurred during the night of 21.3.1990 at about 3 am, i.e., on 22.3.1990. PW1 is a member of the Democratic Youth Federation of India (hereinafter referred to as 'DYFI'), one of the Youth Wings of the Communist Party of India (Marxist). The accused are the sympathizers and followers of Rashtriya Swayam Sevak Sangh (hereinafter referred to as 'RSS'). These organizations have long term enmity due to political and empirical reasons. It is the case of PW1 that the Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..12..
accused who had political enmity towards PW1 decided to do away with PW1 and in furtherance of their common object, they formed themselves into an unlawful assembly armed with deadly weapons including Mos.1 to 5 and trespassed into the courtyard of the house of the brother of PW1 where he was sleeping during the night of 21.3.1990. He would say that after exploding country bombs, the accused destroyed the doors and window panes of the house where PW1 was sleeping. Naturally, PW1, who heard the hue and cry, suddenly woke up and saw the accused armed with deadly weapons for the purpose of rioting. Sensing danger, he attempted to escape from the place in order to take shelter at the residence of PW2 who is none other than his sister. However, according to PW1, the accused chased them and the 1st accused inflicted a cut injury with MO1 sword on the right side of the neck of PW1 causing very serious Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..13..
injury. He would say that thereafter, the accused 2 to 7 dragged PW1 from the veranda to the courtyard of the house of PW2. While so, the 2 nd accused shouted to kill PW1. He would say that thereafter accused Nos.1 to 6 inflicted cut injuries and severe blows on him. On seeing this, the mother-in-law of PW2, at this point of time, tried to prevent the accused from assaulting PW1. The 1 st accused inflicted a cut injury with MO1 sword on her right wrist. Allegedly, the incident was witnessed by PW2 who is the sister of PW1. PW5 who had occasion to come to the house of paternal uncle which is a few meters away from the house of PW1 had also witnessed the incident. PW7 reached the place of occurrence immediately after the occurrence. He was a neighbour of PW1 who came to the scene of occurrence on hearing the hue and cry of PW1. According to him, he saw the accused at the scene of occurrence and PW1 lying in the courtyard of PW2 with Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..14..
bleeding injuries. Immediately after the occurrence PW1 was taken to the Medical College Hospital, Thiruvananthapuram, where PW3 examined PW1 and issued Ext.P2 wound certificate. Ext.P2 wound certificate inter alia reveals the following injuries:-
"(1) Incised Muscle cutting and membrane cutting wound over the upper outer and posterior aspect of right side of neck. (2) Incised bone cutting and over occipital bone cutting wound over occipital region of scalp 6x3 cm oblique.
(3) Incised wound over the lower par of right side of chest, cutting the muscle and ribs, 8x4x4cm. Oblique, (4) Incised Muscle cutting wound outer aspect of right side of thing 12x5x5 cm.
Oblique,
(5) Abrasion over right knee 2x2 cm,
(6) Incised wound over the outer part of
lower third of left forearm 4x2x2 cm.
There is profuse bleeding from wounds.
Quadriplegia present."
Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..15..
11. The mother-in-law of PW2 was taken to General Hospital, Thiruvananthapuram where she was examined by PW4 who issued Ext.P3 wound certificate noting the following injuries:-
"Lacerated Injury-Right wrist- 6 cm. X 2 cm."
12. On receipt of intimation from the Medical College Hospital, Thiruvananthapuram, PW9 the then S.I. of Police, Nemom Police Station went to the Hospital to record the statement of PW1. As PW1 was not in a position to give statement, he had recorded the statement of PW2 as per Ext.P1 and thereafter registered Ext.P1(a) F.I.R. PW9 recorded the body note of PW1 and the mother-in-law of PW2 as Exts.P1(b) and P1(c) respectively. Subsequent investigation was conducted by PW11, the Circle Inspector of Police, Nemom Police Station. He prepared Ext.P6 mahazar and recovered MOs.6 to 9 from the scene of occurrence. The material Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..16..
objects were sent for chemical examination and obtained Ext.P7 chemical analysis report. Thereafter, Ext.P8 report was given to the court. PW9 arrested accused Nos.1 and 4 and on the basis of the information furnished by the 1 st accused, PW9 recovered MO1 sword as per Ext.P5 mahazar in the presence of PW8. Subsequent investigation was conducted by PW12, the then Circle Inspector of Police. He questioned the witnesses and filed final report before the court.
13. It is true that the crime was registered against 50 persons including accused Nos.1 to 6. According to PW1, the number of assailants were about 50. When a group of people come and stage an attack against a house it wouldn't be practical for the victim or witnesses to clearly count the exact number of assailants. However, PW2 identified accused Nos.1 to 5. The evidence tendered by PW1 tallies with the evidence tendered by PW2 as well. Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..17..
PW3 the Doctor stated before the trial court that PW1 was in a sinking stage due to the gravity of the injuries. PW1 was profusely bleeding and he became unconscious immediately after the occurrence. His upper arm and lower limbs were paralyzed because of the injuries. PW3 further stated that injury No.1 was sufficient to cause death in the ordinary course of events. PW2 adduced evidence to show that her mother-in-law was examined by PW4 at the General Hospital, Thiruvananthapuram. He attended the injured on 22.3.1990. An incised injury of 3x6x4 cm. muscle deep was noted on the wrist of mother- in-law of PW2.
14. Coming to PW5's evidence, he has given evidence supporting the version of PWs.1 and 2. According to him, during the night, he had been to the house of his paternal uncle which is about 50-60 metres away from the house of PW1. Hearing the hue and cry, he Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..18..
rushed to the scene of occurrence and saw the incident. PW5 supported the version of PWs.1 and 2 in full.
15. PW7 is one of the neighbours of PW1.
According to him, he had reached the scene of occurrence after hearing a hue and cry from the residence of PW1. He stated that he could not see the accused inflicting injuries on PW1. However, he added that he saw the accused retreating from the scene of occurrence immediately after the occurrence.
16. In the case on hand, Ext.P1 FIS was lodged within one hour after the occurrence after giving the name of the assailants. PWs.1 and 2 adduced evidence to show that all the accused in this case had participated in the occurrence. PW1 also identified all the accused who were present in the court except accused Nos.10 and 13. It has come out in evidence that PW1 knew the accused before the occurrence. It has come out in evidence that MOs.1 to Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..19..
5 were used in the commission of the offence. The injuries sustained by PW1 were very serious in nature. The evidence would show that the accused 1 to 5 did the overt acts to do away with PW1. When examined before court, PW1 specifically stated that the 2nd accused openly declared to murder PW1 and others. As per the medical evidence, the injury sustained by PW1 is very serious. PW1 further stated that accused No.7 Chuzhali Madhu set fire to her residential building. PW2 supported her version before court. Ext.P5 mahazar prepared would show that the building was set on fire and thereby sustained damages. In this case, all the accused were charge sheeted for the offence under Section 3 of Explosive Substances Act as well. The trial court acquitted all the accused for the offence under Section 3 of the Explosive Substances Act. The first and foremost thing to convict an accused under Section 436 of the IPC is to fix the identity Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..20..
of the accused as to who set fire to the building. The evidence on record would amply prove that the 7 th accused set PW2's house on fire. Admittedly the occurrence took place in the night. After taking evidence, the 7th accused was acquitted. There was no reliable or sufficient evidence on record to connect the 7 th accused with the crime. It is not known as to whether the 7 th accused set the building on fire by explosive substance. When the allegation is that the accused used explosive substance which was found against, the accused cannot be roped in with the charge under Section 436 of the IPC unless it is proved that the accused 1 to 5 had set fire to the residential building of PW2 in furtherance of their common object. There is no reliable evidence to prove that the accused 1 to 5 committed mischief by fire as alleged by the prosecution. It is not proved beyond reasonable doubt that accused Nos.1 to 5 set fire to the Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..21..
building and in consequence thereof the property was damaged. In fact, the 7th accused who committed the offence under Section 436 of the IPC was acquitted by the trial court. There is no evidence in this case to prove that the 7th accused did the act in furtherance of common object with accused Nos.1 to 5. Further it is not evident from the records that the 7th accused caused mischief by fire or any explosive substance, intending to cause or knowingly it will be likely that he would thereby caused damage to the property owned and possessed by PW2. Accordingly, the 7th accused was found not guilty of all the offences including the offence under Section 436 of the IPC and he was acquitted thereunder by the trial court.
17. In the case on hand, the prosecution has succeeded in proving that there was an assembly of five persons on the date of occurrence; that the assembly had a common object and that the said common object was to Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..22..
consist of one or more of the five illegal objects specified in Section 141 of the IPC. It has come out in evidence that accused Nos.1 to 5 were armed with deadly weapons on the date of occurrence. All the above accused assaulted PW1 and CW3. At the same time, it cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be member of the unlawful assembly, it cannot be said that he is a member of the assembly. It has come out in evidence that the accused should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 of the IPC.
18. Determination of common object of an unlawful assembly is essentially a question of fact keeping in view the nature of the assembly, arms carried by the members and the behaviour of the members at or near the scene and a host of similar or connected facts. It is trite law that Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..23..
the substantial evidence is the identification of accused in court. It is brought out in evidence that the accused were known to each other prior to the date of occurrence. There is no case for the prosecution that the accused were strangers to PWs.1 and 2. Under such circumstances, test identification parade is not compulsory. In Masalti v. State of UP [1965 KHC 476], the Apex Court held that where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to explain the part played by each one of the assailants.
19. It is true that no test identification parade was conducted in this case. However, PWs.1 and 2 clearly identified the accused Nos.1 to 5 before the court and relying on their oral evidence, the trial court convicted and sentenced the accused. The trial court and appellate court Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..24..
meticulously analysed the evidence adduced in this case and convicted and sentenced accused Nos.1 to 5 for the offences enumerated hereinabove. By the impugned judgment, the trial court convicted and sentenced accused Nos.1 to 5 to undergo rigorous imprisonment for six years for the offence punishable under Section 307 of the IPC, rigorous imprisonment for five years for the offence punishable under Section 436 of the IPC, rigorous imprisonment for two years for the offence punishable under Section 452 of the IPC and rigorous imprisonment for six months for the offence punishable under Section 427 of the IPC. The sentences of imprisonment were ordered to run concurrently. All the accused are further directed to pay a fine of Rs.2,000/- each for the offence punishable under Section 307 of the IPC and in default of payment of fine to undergo rigorous imprisonment for three months. The fine amount, if realized, the trial court Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..25..
directed to pay an amount of Rs.5,000/- as compensation to PW1 in accordance with law. Set off was also allowed.
20. In this case, circumstances and background are sufficient to hold that both the trial court and appellate court have concurrently arrived at the conviction of the accused by a process of well-grounded reasoning. It would not be just and proper for the High Court to interfere with the findings of facts. It has come out in evidence that PW1 sustained serious injuries as a result of the overt act committed by the accused and the accused made an attempt to do away with PW1. PWs.1 and 2 identified accused Nos.1 to 5 before court. Non-examination of PW2's mother-in-law before court is not a ground to disbelieve the version of PW1. It is supported by medical evidence as well. In view of my finding that offence under Section 436 of the IPC is not proved against the accused 1 to 5 beyond doubt, the conviction and sentence of the Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..26..
said offence as against accused Nos.1 to 5 are liable to be set aside. For the remaining offences, nothing has been pointed out to show that the findings are grossly erroneous or perverse. When concurrent findings of the two courts below are supported by proper appreciation of evidence, this Court is of the view that no interference in revision is warranted. This is not a case where the trial court by misreading of some evidence has convicted the accused 1 to 5 for the offences under Sections 143, 147, 148, 149, 452, 427, 324 and 307 of the IPC. Hence the conviction rendered against the accused 1 to 5 for the above offences are confirmed.
21. In view of the discussion made hereinabove, the conviction and sentence for the offence under Section 436 of the IPC as against the accused 1 to 5 are set aside and they are found not guilty of the offence under Section 436 of the IPC and are acquitted thereunder. Coming to the Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..27..
question of sentence for the offence under Sections 143, 147, 148, 149, 452, 427, 324 and 307 of the IPC, the learned counsel for the revision petitioners submitted that the occurrence in this case took place as early as on 21.3.1990. According to the learned counsel for the accused, parties were at loggerheads due to political reasons. The accused 1 to 5 have been defending the case for the last 30 years. They have undergone the agony of a criminal proceeding. The learned counsel further submitted that the accused have not been involved in any other case so far and they are leading a peaceful life at present. In view of the aforementioned mitigating circumstances, the learned counsel for the revision petitioners seeks indulgence from this Court in the matter of sentence.
22. Having considered the submission made, this Court is of the view that the sentence imposed on the Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..28..
revision petitioners/accused Nos.1 to 5 for the offence under Section 307 of the IPC is reduced to three years each. As indicated earlier, accused Nos.1 to 5 are not guilty of the offence under Section 436 of the IPC and accordingly they are acquitted thereunder. For the rest of the offences, the sentences imposed by the trial court as confirmed by the appellate court are confirmed without any change whatsoever. It is made clear that the revision petitioners 1 to 5 are entitled to get set off for the period under which they were in judicial custody in connection with this case.
23. Coming to the evidence in S.C.No.362/95 of the very same trial court, it is disclosed that the 6 th accused was later arrested and the case against him was committed to the Sessions Court. After the trial, the learned Assistant Sessions Judge heard both sides and convicted and sentenced the 6th accused to undergo Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..29..
rigorous imprisonment for five years for the offence under Section 307 of the IPC, to undergo rigorous imprisonment for two years each for the offences under Sections 148 and 149 of the IPC, to undergo rigorous imprisonment for two years for the offence under Section 452 of the IPC. He was further sentenced to pay a fine of Rs.5,000/-, in default of payment of fine to undergo simple imprisonment for a period of six months for the offence under Section 307 of the IPC. If the fine amount is realized, it was ordered that the same will be given to the legal representatives of the de facto complainant as compensation. No separate sentence was awarded for the offences punishable under Sections 143, 147 and 324 of the IPC.
24. It has come out in evidence that the injured who was examined as PW1 in S.C.No.109/94 passed away during the pendency of the proceeding. The trial court has Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..30..
taken into consideration the fact that the injured, a young man of 24 years, in his prime youth was caused to be bedridden for years together and he passed away subsequently. During the trial, the trial court issued summons to CWs.1 and 3. They sustained injuries in the occurrence. Summons issued to them returned with an endorsement that they passed away. It is a fact that the de facto complainant gave evidence as PW1 while the case was tried as S.C.No.109/94. In his statement, the name of the 6th accused is not found a place. Ext.D1 is the copy of the deposition. However, PWs.1 and 2 stated regarding the presence of the 6th accused among the other persons. PW1 in S.C.No.362/95 is the sister of the injured Thulasidharan and she lodged First Information Statement before the police. According to her, the 6 th accused was also present along with the accused 1 to 5 and assaulted CW1 with an iron rod. PW2 also stated that he saw the Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..31..
incident during 3 am after the night of 21.3.1990. According to him, the 6th accused was present. The trial court has taken into consideration of the evidence of PWs.1 and 2 coupled with the evidence of PW3 who issued Ext.P2 wound certificate and PW4 who issued Ext.P3 wound certificate to prove the prosecution case. It is a fact that the weapon used by the 6th accused was not marked in the case. The incident took place on 21.3.1990 and the witnesses were examined on 3.7.1995. Considering the above circumstances both the trial court and the appellate court believed the version of PWs.1 and 2 and convicted and sentenced the accused as stated hereinabove.
25. CWs.1 and 3 the two persons who allegedly suffered injuries in the occurrence were no more at the time of trial. The only evidence available with the prosecution to establish the occurrence was that of PWs.1 Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..32..
and 2. The evidence of PWs.1 and 2 cannot be accepted as conclusive proof for the reason that PW1 the injured in S.C.No.109/94 against the other accused did not mention the name of the 6th accused as an assailant in Ext.D1 deposition before court. Ext.D1 deposition is a previous statement which can be used against the accused only in the manner provided under the Evidence Act. Ext.D1 was recorded in the absence of the 6 th accused. The same cannot be taken as evidence in this case to enter a conviction against the 6th accused. Hence the identification of the accused made by PWs.1 and 2 in this case cannot be taken as proof beyond doubt. Further, the weapon used by the 6th accused was not marked by the prosecution. No specific overt act whatsoever has been attributed to him by the prosecution. In such circumstances, this Court is of the view that the courts below erred in roping him with the aid of Section 149 of the IPC in the absence of Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..33..
clinching evidence to establish the presence of the accused at the scene of occurrence. Hence the conviction and sentence imposed against the accused for the offences stated above are not sustainable. The trial court relied on unreliable evidence as reliable and entered a finding that the 6th accused committed the offences along with accused Nos.1 to 5. The same was confirmed in appeal. The findings of the trial court are not based on reliable evidence and are unsustainable in law.
26. In the result, the Crl.R.P.No.1013/2003 stands allowed in part. The concurrent conviction of the offences imposed on the revision petitioners/accused Nos.1 to 5 by the two courts below under Sections 143, 147, 148, 149, 324, 452, 427 and 307 of the IPC are confirmed. The revision petitioners/accused Nos.1 to 5 are found not guilty of the offence under Section 436 of the IPC and accordingly they are acquitted thereunder. For the offence Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..34..
under Section 307 of the IPC, the sentence is reduced to three years each. For the rest of the offences, the sentences imposed by the two courts below are confirmed without any change whatsoever. The aforesaid sentences are ordered to run concurrently. The revision petitioners/accused Nos.1 to 5 are entitled to get set off for the period under which they were in judicial custody. The revision petitioners 1 to 5/accused Nos.1 to 5 are directed to surrender before the trial court on 18.12.2020 to receive the sentence and in case of failure, the trial court shall take appropriate steps to execute the sentence in accordance with law.
27. The Crl.R.P.No.1146/2009 stands allowed. The revision petitioner/accused No.6 in Crl.R.P.No.1146/2009 is found not guilty for the offences under Sections 143, 147, 148, 149, 324, 307 & 452 of the IPC and he is acquitted thereunder. Cancelling his bail bond, this Court Crl.R.P.Nos.1013 of 2003 & 1146 of 2009 ..35..
directs that he be set at liberty. If any fine amount is deposited during the pendency of the proceedings pursuant to an interim order passed by this Court, the same shall be released to the revision petitioner/accused No.6 in accordance with law. Pending applications, if any, in the above criminal revision petitions are disposed of.
Sd/-
N.ANIL KUMAR, JUDGE skj