Kerala High Court
Ismail vs The State Of Kerala on 5 October, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942
Crl.Rev.Pet.No.873 OF 2010
AGAINST THE JUDGMENT IN CRA 160/2006 DATED 25-01-2010 OF 1st
ADDITIONAL SESSIONS COURT, THRISSUR
AGAINST THE JUDGMENT IN CC 305/2006 DATED 18-02-2006 OF JUDICIAL
MAGISTRATE OF FIRST CLASS,KUNNAMKULAM
REVISION PETITIONER/APPELLANT/ACCUSED:
ISMAIL
S/O.R.V.MOHAMMED, RAYAM MARAKKAR HOUSE,
ERANALLUR VILLAGE, DESOM, TALAPPILLY TALUK,
THRISSUR DISTRICT.
BY ADVS.
SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
RESPONDENT/RESPONDENT/PETITIONER:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
18-09-2020, THE COURT ON 05-10-2020 PASSED THE FOLLOWING:
Crl.R.P.No.873/2010 2
ORDER
Dated this the 5th day of October, 2020 This revision is filed against the judgment dated 25.1.2010 of the Ist Additional Sessions Court, Thrissur, whereby the learned Ist Additional Sessions Judge dismissed Crl.Appeal No.160 of 2006 filed by the revision petitioner/accused (hereinafter referred to as 'accused') challenging the conviction and sentence imposed by the Judicial First Class Magistrate Court, Kunnamkulam in C.C.No.305 of 2006 for the offences punishable under Section 143 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Section 3(1) of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as 'the PDPP Act').
2. The revision petitioner was the second accused in C.C.No.305 of 2006 on the file of the court of the Judicial First Class Magistrate Court, Kunnamkulam for the offences punishable under Sections 143, 147, 341 and 188 read with Section 149 of the IPC and Section 3(1) of the PDPP Act, which Crl.R.P.No.873/2010 3 arose from Crime No.629 of 2000 of Kunnamkulam Police Station.
3. The case of the prosecution in brief is that on 24.11.2000, at about 8.00 p.m., 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, wrongfully restrained the car bearing registration No.KL-7/W-3879 belonging to the High Court of Kerala, while the car was proceeding through the Thrissur - Kunnamkulam road, and caused substantial damage to the said car and thereby committed a loss of Rs.3,150/- to the Government of Kerala. Thus the accused 1 to 3 are alleged to have committed the aforesaid offences.
4. The crime was originally registered against nine accused. Of them, accused Nos.1, 4, 6, 7, 8 and 9 faced trial in C.C.No.270 of 2001 and were convicted and sentenced by the trial court. They had challenged the conviction and sentence in appeal. By the common judgment in Crl.Appeal No.159 of 2006 and Crl.Appeal No.174 of 2006, they were acquitted by the IIIrd Additional Sessions Court (Adhoc) Fast Track - I, Thrissur. The Crl.R.P.No.873/2010 4 case against the revision petitioner and the other accused were split up and refiled as C.C.No.305 of 2006.
5. Consequent to the appearance of A2 before the trial court, after having heard both sides, charge under Sections 143, 147, 341 and 188 read with Section 149 of IPC and Section 3(1) of the PDPP Act was filed. The charge was read over to the accused to be pleaded guilty.
6. During the trial of the case, PWs 1 to 18 were examined and marked Exhibits P1 to P6 on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Code of Criminal Procedure. The accused denied all the incriminating circumstances appearing in the evidence adduced. When the case came up for defence evidence, no oral or documentary evidence were adduced by the accused.
7. On appreciation of the evidence, the trial court convicted the second accused for the offences punishable under Section 143 read with 149 of the IPC and under Section 3(1) of the PDPP Act. Accordingly, A2 was sentenced to undergo simple imprisonment for six months under Section 143 of IPC Crl.R.P.No.873/2010 5 and simple imprisonment for six months for the offence punishable under Section 3(1) of the PDPP Act. A2 was further directed to deposit a fine amount of Rs.1,000/- and in default of payment to undergo simple imprisonment for another one month. The case against A1 and A3 was refiled as C.C.No.325 of 2006.
8. Heard Sri.Santhosh P.Poduval, the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Public Prosecutor.
9. The learned counsel for the revision petitioner submitted that the trial court convicted and sentenced the accused without any acceptable legal evidence in this case. According to the learned counsel, the High Court of Kerala was the registered owner of the car and the occurrence took place while the car was proceeding towards Thrissur-Kunnamkulam road. The learned counsel further submitted that the trial court imposed a moral conviction on the revision petitioner without considering the evidence on record. It is further submitted that though the said judgment was challenged in appeal, the learned Additional Sessions Judge followed the suit.
10. Per contra, the learned Public Prosecutor submitted Crl.R.P.No.873/2010 6 that the second accused along with the other accused formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object, they had deliberately destroyed the car owned by the High Court. The learned Public Prosecutor further submitted that in case the impugned judgment is interfered with, it gives a wrong signal to the members of the public.
11. PW1 was on escort duty on 24.11.2000, at about 8 P.M. He was escorting an official car bearing registration No.KL- 7/W-3879 owned by the High Court of Kerala. When the escort vehicle reached near Kecheri junction, the official vehicle was blocked by a group of persons. While so, some persons came there and due to their intervention, the vehicle was permitted to move forward. He would say that when the vehicle was moved, a few persons came there from the left side fisted on the car and thereby the left side door had sustained damages. As a result, there was a block on the road for 20 minutes. PW1 stated that the accused committed mischief along with others. He also identified the accused before the court.
12. PW2 was the driver of the official car. PW2 stated Crl.R.P.No.873/2010 7 that the accused fisted on the car and thereby the car sustained damages. PW2 also stated the actual damage sustained to the car. For the occurrence in question, PW2 lodged Exhibit P1 complaint before the police. PW2 also identified the accused before the court.
13. PW8 is the owner of the workshop wherein the official car was repaired. PW8 stated that he had collected an amount of Rs.3,150/- towards the repairing charges.
14. PW9 is the officer in charge of the vehicle bearing registration KL-7/W-3879. According to him, the car was allotted for the tour programme for a Judge of this Court from Ernakulam to Manjeri on 24.11.2000.
15. PWs 3 to 7 turned hostile to the prosecution denying the occurrence. PW10 and 11 are signatories in Exhibit P2 mahazar. PW12 and 14 are the signatories in Exhibit P3 mahazar. PW13 is a signatory in Exhibit P4 mahazar. PW15 questioned the witnesses in this case. PW16 is a signatory in Exhibit P4 mahazar. PW18, the then Sub Inspector, Manjeri Police Station, recorded Exhibit P1 statement of PW1 and registered Exhibit P5 F.I.R. Since the occurrence place was Crl.R.P.No.873/2010 8 within the jurisdiction of Kunnamkulam Police Station, PW18 forwarded the F.I.R. to the said Police Station. Accordingly, PW17 registered Exhibit P6 F.I.R.
16. PW1 and 2 adduced evidence to show that immediately after the occurrence, the second accused was arrested. When PW1 and 2 reported before the police, according to them, A2 was shown to them and they had identified them at the Police Station. They identified the accused before the trial court as well. No evidence was adduced in this case to prove the arrest of the accused. The investigating officer was not examined before the trial court as a witness. Identification for the first time during trial is inherently of a weak character which loses much of its value without prior test identification parade. It is also not proper to let the accused identified before the Police Station. Identification for the first time in the court cannot be relied upon in the absence of corroboration. Admittedly, the accused were strangers to PW1 and 2 and the prosecution evidence would show that the alleged incident took place all of a sudden and PW1 and 2 had no prior acquaintance with them, the identification for the first time in Crl.R.P.No.873/2010 9 court based on the identification made at the Police Station has no evidentiary value and is not acceptable in evidence. Without corroborative evidence, the dock identification alone cannot be treated as substantial evidence.
17. For an unlawful assembly, the minimum number required is five. The test is that the persons having the common object must be five or more. Acquittal of some of the accused earlier does not stand in the way of convicting less than five persons if the court on evidence before it comes to the conclusion that there were other members of unlawful assembly and the number was more than five. There is no finding by the trial court that although more than five persons formed unlawful assembly and all were acting in prosecution of their common object, but due to intensity in evidence with regard to involvement of some of them, they were acquitted earlier, the conviction of the second accused in this case with the aid of Section 149 IPC is fully justifiable. The above principle has no application in this case in which the evidence let in is not sufficient to prove beyond doubt that the second accused along with other accused consisting of five or more persons formed Crl.R.P.No.873/2010 10 themselves into an unlawful assembly. Conviction and sentence of the second accused for the offence punishable under Section 143 of IPC, without proving the minimum required number, are clearly unsustainable. As per the scheme of the Indian Penal Code, an assembly of five or more persons is designated as an unlawful assembly under Section 141 of the IPC. Section 141 of the IPC is relevant in this context, which is extracted as herein below :
"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is
-- First.--To overawe by criminal force, or show of criminal force, 12[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law, or of any legal process; or Third.--To commit any mischief or criminal trespass, or other offence; or Fourth.--By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the Crl.R.P.No.873/2010 11 enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not
unlawful when it assembled, may
subsequently become an unlawful assembly."
18. As stated earlier, the prosecution has failed to adduce reliable evidence to prove an unlawful assembly as defined under Section 141 of the IPC. Hence the conviction and sentence under Section 143 of IPC is liable to be set aside.
19. Judged by the above standards, this Court is of the view that both the trial court and the appellate court accepted unreliable evidence and convicted and sentenced the accused for the offence punishable under Section 143 of IPC read with Section 149 of IPC and Section 3(1) of the PDPP Act. Hence the conviction and sentence imposed by the trial court as confirmed in appeal are set aside.
Crl.R.P.No.873/2010 12
In the result, the revision is allowed. The revision petitioner/accused is found not guilty for the offence punishable under Section 143 read with Section 149 of IPC and Section 3(1) of the PDPP Act and accordingly, he is acquitted thereunder. Cancelling his bail bond, I direct that he be set at liberty. If any fine amount is deposited by the revision petitioner during the pendency of this revision before the trial court, pursuant to an order of this Court, the same shall be refunded to the revision petitioner in accordance with Rules. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR JUDGE csl