Kerala High Court
Uppengal Sivadasan vs State Of Kerala on 19 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1067
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA,
1942
Crl.Rev.Pet.No.3171 OF 2003(C)
CRA 331/2002 OF SESSIONS COURT, MANJERI
SC 101/1996 OF ASSISTANT SESSIONS COURT, MANJERI
REVISION PETITIONER/S:
1 UPPENGAL SIVADASAN, S/O KUNHAPPAN
NENMINI AMSOM DESOM
2 PALOLI ALAVI, S/O MOOSA(LATE)
PALOLI HOUSE, PANDALLOOR AMSOM DESOM,
PANDIKKAD POLICE STATION LIMITS.
3 PARUTHIKUNNAN ABU @ KUNHIMON,
S/O MOOSA KUTTY, T.K COLONY,
NILAMBUR POLICE STATION LIMITS.
4 PULLATTIL USMAN, S/O MUHAMMED
NENMINI AMSOM DESOM
5 SREEDHARAN, S/O KRISHNANKUTTY
THAMBIVEETIL HOUSE, NENMINI AMSOM DESOM
6 POOLAKKAL PARANGODAN, S/O ARUMUGHAN
NENMINI AMSOM DESOM
7 KALARIKKAL RAMAKRISHNAN,
S/O PRABHAKARA PANICKER, PARIYARATH HOUSE,
NENMINI AMSOM DESOM
CRRP No.3171/2003
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8 PARIYARATH MURALEEDHARAN,
S/O RAVUNNI
PARIYARATH HOUSE, NENMINI AMSOM DESOM
9 KOORIMANNIL THALAPPIL ABDUL SALAM,
S/O KUNHIMOIDEEN, KOORIMANNIL
THALAPPIL HOUSE, NENMINI AMSOM DESOM
10 PUNARKKADAN NISAMUDHIN,
S/O MUHAMMED, PUNARKKADAN HOUSE,
NENMINI AMSOM DESOM
11 PERUTHEKKADAN ALI,
S/O KUNHIMUHAMMED
NENMINI AMSOM DESOM
12 PULLATTIL MUHAMMEDALI,
S/O MUHAMMED
NENMINI AMSOM DESOM
13 AKKAPPARAMBAN MOIDEEN,
S/O KUTTYHASSAN
NENMINI AMSOM DESOM
14 A.P JOYI, S/O THOMAS WARKKI
ALANCHERIYIL HOUSE, NENMINI AMSOM DESOM
15 VERKKOTTUPARAMBIL NADI, S/O KEERAN
NENMINI AMSOM DESOM
16 MARUKKATTU CHANDRAN, S/O VELAYUDHAN
MARUKKAD HOUSE, NENMINI AMSOM DESOM
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.V.C.SARATH
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.VIPIN NARAYAN
SMT.POOJA PANKAJ
SRUTHY N. BHAT
SRI.P.M.RAFIQ
CRRP No.3171/2003
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RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA ERNAKULAM
R1 BY PUBLIC PROSECUTOR SR.PP.M.S.BREEZ
OTHER PRESENT:
ADV. SRI.P.VENUGOPAL
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 10-11-2020, THE COURT ON 19-11-2020 PASSED THE
FOLLOWING:
CRRP No.3171/2003
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O R D E R
This revision petition is directed against the judgment dated 23.10.2003 in Crl.Appeal No. 331 of 2002 rendered by the learned Sessions Judge, Manjeri, whereby the learned Sessions Judge allowed the appeal in part, confirming the conviction and sentence against accused 1 to 16 imposed by the learned Assistant Sessions Judge, Manjeri for the offences punishable under Sections 143, 147, 148, 342, 323, 324 and 326 r/w Section 149 of the Indian Penal Code (hereinafter referred to as, "IPC"). However, the conviction and sentence of the accused 1 to 16 for the offences punishable under Sections 120B and 307 of the IPC were set aside and accordingly, they were acquitted of the said charges.
2. The offences alleged against the accused 1 to 16 are punishable under Sections 143, 147, 148, 120B, 342, 323, 324, 326 and 307 r/w Section CRRP No.3171/2003 ..5..
149 of the IPC pertaining to Crime No.26 of 1995 of Melattur Police Station. PWs 9 and 10 conducted investigation in this case. They have questioned the witnesses, recorded their statements, recovered material objects, completed the investigation and filed final report before the court.
3. Prosecution case, in brief, is that on 27.02.1995 at 8.15 pm, all the accused, who were labourers of Nenmeni Balannoor Estate (hereinafter referred to as, "Estate"), formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in pursuance of their common object, criminally conspired together and assaulted PW1, the Manager of the Estate, and voluntarily caused simple and grievous hurt to him and thereby, attempted to commit murder of PW1 in front of the Estate Dispensary at Keezhattur Panchayat.
4. On committal, the learned Assistant Sessions Judge, after having heard both sides, framed CRRP No.3171/2003 ..6..
charge against accused 1 to 16 for the aforesaid offences. The charge was read over to the accused 1 to 16, to which they pleaded not guilty.
5. In order to prove the prosecution case, PWs 1 to 10 were examined and marked Exts. P1 to P16 and MOs 1 to 7 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure (hereinafter referred to as, "Cr.P.C."). They denied all the incriminating circumstances appearing in the evidence against them. According to them, PW1 was instrumental in foisting a false complaint against them to terminate their employment since they had filed a complaint before the Labour Officer when bonus was denied to them. However, when they were called upon to enter on their defence, no defence evidence was adduced.
6. On the basis of the materials and the evidence on record and upon hearing the learned counsel CRRP No.3171/2003 ..7..
for the parties, the trial court convicted the accused of all the offences, whereas the appellate court acquitted them of the offence punishable under Section 307 r/w Section 120B of the IPC by sustaining the rest of the conviction of the offences alleged.
7. Heard Sri.P.Vijayabhanu, the learned senior counsel for the revision petitioners; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent State.
8. Sri.P.Vijayabhanu, the learned senior counsel for the revision petitioners made the following submissions;
1) The ingredients necessary to warrant conviction under Sections 143, 147, 148 r/w 149 of the IPC not being proved by adducing cogent evidence, the learned trial court and the appellate court acted illegally in convicting and sentencing the revision petitioners and thus, the same cannot be legally sustained.
2) The exact injuries sustained to PW1 are not CRRP No.3171/2003 ..8..
supported by medical evidence and the injuries sustained to PW1 have not been caused by the accused.
3) There having no real independent witness and there being serious contradictions in the deposition of witnesses and also there being tendency of improving the prosecution case subsequent to Ext.P11 FIR, there is serious lacuna for the prosecution case.
4) Both the trial court and the appellate court overlooked the case projected by the revision petitioners in their defence that the dispute between the accused and PW1 is a pure labour dispute between the employer and the employees.
5) The finding of guilt recorded by the trial court against the revision petitioners is not based on proper appreciation of evidence.
6) Both the trial court and the appellate court wrongly relied on the interested witnesses attached to the management involved in the case and entered a finding that the accused CRRP No.3171/2003 ..9..
committed the offences.
7) No identification parade was conducted to prove the identity of the accused during the investigation and the prosecution failed to prove the identity of the accused before the court. It is submitted that the alleged dock identification has not been proved in evidence.
9. On the other hand, the learned Senior Public Prosecutor submitted that the prosecution case is supported by the evidence of at least four witnesses, out of which PW1 sustained physical injuries in a physical clash at the place of occurrence, and the prosecution has succeeded in proving the case against the revision petitioners, which requires no interference in any manner in exercise of powers under Section 401 of Cr.P.C.
10.Sri.P.Venugopal, the learned counsel for the defacto complainant, sought permission of this Court to make the following submissions. Permission was granted. Relying on a decision CRRP No.3171/2003 ..10..
of the apex court in Masalti v. State of U.P. [1965 KHC 476], it is contended that where a crowd of assailants, who are members of an unlawful assembly, proceeds to commit an offence in pursuance of a common object of the unlawful assembly, it is often not possible for the witnesses to accurately narrate the part played by each one of the assailants. It is further contended that the High Court, in exercise of its revisional jurisdiction, shall not interfere with the findings of the two courts below unless the findings are perverse or wholly unreasonable or there is non consideration of any relevant material.
11.For the purpose of examining the correctness and otherwise of the above submissions of the learned counsel for the revision petitioners, it is necessary to peruse the evidence on record, which are as follows;
PW1 is the injured in this case, who has been working as Manager of the Estate, and the CRRP No.3171/2003 ..11..
accused have been working as employees in the said industrial establishment. PW2 is one of the office staff of the Estate working under PW1. PWs 3 and 5 are two independent eye witnesses. PW4 is the doctor, who treated PW1 at Moulana Hospital, Perinthalmanna. PW6 is the Pharmacist of the Estate, who cleaned the wounds of PW1 for the first time immediately after the occurrence. PW6 is an attestor to the seizure mahazar regarding the seizure of MOs 1 to 4, 6 and 7. PW1 lodged Ext.P1 First Information Statement before PW8, the Assistant Sub Inspector of Police, Melattur Police Station. Consequently, he registered Ext.P11 First Information Report.
12.According to PW1, he was working as Manager of the Estate. There was a labour dispute in the said Estate between the workers and the management. The accused were workers of the Estate. PW1, in his capacity as Manager, had represented the management to resolve the CRRP No.3171/2003 ..12..
dispute between the management and workers. Naturally, the accused were not on good terms with PW1.
13.The first information regarding the incident was given by PW1 while undergoing treatment in the ICU of Moulana Hosptial, Perinthalmanna at about 11.45 am. PW8, the Assistant Sub Inspector of Police, Melattur Police Station registered Ext.P11 First Information Statement for the aforesaid offences at about 11.45 am on 27.02.1995. PW1 testified that on 27.02.1995 at about 7.30 am, while he was going to the Estate office from the Estate bungalow, accused 1 to 14 were seen near the 'panthal' raised by the agitators and close to the Estate dispensary. He went to the office and at about 8.15 am, proceeded to his bungalow for having a cup of tea. When he reached near the dispensary, the 1st accused came behind running and asked him to stay. Since the 1st accused wanted to talk with him, he had obliged to the request. By that CRRP No.3171/2003 ..13..
time, accused 2 to 14 reached there and all of them encircled him and the 11th accused exhorted to kill him. They gave a blow on the head of PW1 with a stick. This was followed by the 2nd accused beating with a stick, which was somehow prevented. By that time, all the accused assaulted him with sticks and hands. The 3 rd accused collected stones from the nearby place and hit on PW1's forehead. Immediately, PW1 collapsed and thereafter, the accused kicked him into a nearby ditch. Ali, Sivadasan, Abdul Salam and P. Mohammed Ali get down and hit him. By that time, the office staff reached there and the assailants escaped. He was removed to the hospital.
14.PW8 recorded Ext.P1 First Information Statement of PW1 and registered Ext.P11 First Information Report, in which accused Nos. 1 to 14 were arraigned as accused. PW4, the Medical Officer attached to the Moulana Hospital, examined PW1 at 9 am on 27.02.1995 and issued Ext.P8 wound CRRP No.3171/2003 ..14..
certificate, noting the following injuries; (1) Lacerated wound mid forehead transversely placed 4 x 1 cm.
(2) Contusion (L) upper arm M/3rd. (3) Tenderness (L) shoulder, movements painful.
(4) Tenderness V Metacarpal of (L) hand and (R) ankle
15.The prosecution examined PWs 1 to 3, 5 and 6 to prove the occurrence. PW1 is the injured in this case. He narrated the entire incident stated in Ext.P1 First Information Statement. According to him, while he was going to the Estate office in the morning of the date of occurrence, accused 1 to 14 were in the 'panthal' raised by the agitators and when he was returning to the bungalow to have a tea, the 1st accused came behind him and politely requested him to stay. When he stayed back, the 1st accused assaulted him on his head with a stick exhorting to kill him. The 3rd accused hit him with a stone on the forehead. When he collapsed, the accused kicked him. It is his specific case that the accused ran away from CRRP No.3171/2003 ..15..
the place. He identified his watch and specs including MOs 1 & 2 sticks, MO3 series stones and MOs 4 & 5 series clothes worn by him at the time of occurrence.
16.PW2, who is one of the office staff, rushed to the place of occurrence after hearing a hue and cry from the place of occurrence. He also supported the prosecution case and referred the involvement of accused 1 to 16 in the occurrence. PW3 is residing near the Estate. According to him, he saw the accused assaulting PW1 with sticks and hands. However, he stated that he could not say the details of the overt acts in detail. PW5 was one of the workers in the Estate during the relevant time. According to her, she was watering the plants in the Estate at the time of occurrence. She supported the prosecution case in part. She stated that she saw PW1 going to the Estate bungalow and while so, certain persons assaulting PW1. She further stated that she saw PW1 was encircled CRRP No.3171/2003 ..16..
by the assailants and then, she cried aloud. PW6, who is one of the office staff, took PW1 to the hospital. When PW6 was examined before the court, he stated that he was not in a position to state the details of the overt acts committed by all the accused. He also denied that he saw the accused assaulting PW1 with sticks.
17.The appellate court entered a finding that
there was no evidence, direct or
circumstantial, to show that there was an
agreement between the accused to commit the
offences alleged against them. The appellate
court further held that except five among the accused, others had not brought any weapon to the place of the occurrence and three persons grabbed the granite stones found nearby and assaulted PW1. Further, it was held that the exhortation to kill PW1 could be the expression of the anger, particularly, as PW1 had represented the management in the labour CRRP No.3171/2003 ..17..
dispute. In view of the above findings, the conviction and sentence rendered against accused 1 to 16 for the offences punishable under Sections 307 and 120B of the IPC were set aside.
18.The evidence of PW1 on the fact that he sustained injuries on his head is consistent with his own statement in Ext.P1. He stated that the 3rd accused inflicted an injury on his head with a stone. The stone was recovered by the police. He also stated that one more injury was inflicted by the 11th accused on his head with a stick. It is seen from Ext.P8 that PW1 sustained a lacerated wound mid forehead transversely placed 4x1 cm. PW2, when examined before the court, supported the version of PW1 and stated that the 3rd accused inflicted an injury on the head of PW1 with a stick. However, PW2 stated that accused 1, 11, 9 and 12 beat PW1 all over his body with stones. PW1, the injured, clearly stated that the 11th CRRP No.3171/2003 ..18..
accused beat on his head with a stick. PW1 further stated that the 1st accused followed him and requested him to stop for a while for a discussion with him when he was returning bungalow from the office. He stated that all the accused formed themselves into an unlawful assembly and encircled him immediately thereafter. In his chief examination, he had alleged specific overt acts against accused 3 and 11 in connection with the crime. However, he added that all other accused assaulted him and as a result, he fell to the ground. According to him, all the accused thereafter beat him all over his body and he became disoriented soon thereafter. He further stated that he rolled down into a nearby ditch after the occurrence. Although he had fallen to the ditch, the accused did not stop their unlawful acts. According to him, they pelted stones towards him and while so, the office staff attached to the Estate rushed to the scene of CRRP No.3171/2003 ..19..
occurrence.
19.On the other hand, PW2, in his evidence, stated that accused 2, 10, 12 and 14 were in possession of dangerous sticks in their hands. PW2 further stated that accused 1 and 13 were instrumental in pulling PW1 into a ditch immediately after the occurrence. In his chief examination, initially, he stated that the 11th accused made an attempt to do away with PW1 and assaulted him with a stick. Thereafter, he sated that accused 1, 11, 9 and 12 further assaulted PW1 with stones. When PW3 was examined, he stated that he could not say which all accused did the particular acts in connection with the occurrence. According to PW5, when PW1 was encircled by the assailants, she cried aloud. She further stated that she saw all the accused assaulting PW1. However, she could not say the details of each and every acts done by the accused.
20.Ext.P8 wound certificate inter alia would show CRRP No.3171/2003 ..20..
that X-ray and CT scan were taken immediately after the occurrence. Fracture ethmoid (L) and fracture maxilla (L), fracture (L) fifth metacarpal neck and fracture scapula (L) were the serious injuries noted by the doctor immediately after the occurrence. PWs 3, 5 and 6 were not able to say which all accused did what all things in the occurrence.
21.In court, PW1 referred to accused 1 to 14 by their names as in Ext.P1. A15 and 16 were arraigned as accused during the course of the investigation. When cross examined, PW1 stated that he was not aware of all the names of the workers working under him in the Estate. However, he stated the details of the name and address of the accused to the police while lodging Ext.P1 First Information Statement. It is a fact that no test identification parade was conducted in connection with the case, presumably, for the reason that PW1 being the Manager of the Estate was well acquainted with CRRP No.3171/2003 ..21..
the accused and their identity was known to PW1 earlier. On cross examination, PW1 found it very difficult to identify each and every accused present on the dock. However, he was consistent with the identity of accused 1, 3 and 11, who were present on the date of occurrence. The 1st accused was the leader of the Union. The allegation is that under the leadership of the 1st accused, all the accused formed themselves into an unlawful assembly armed with deadly weapons to assault PW1 in connection with a labour dispute between the management and the Union. During cross examination, PW1 was unable to identify P.M.Abu, the 3rd accused. Instead of the 3rd accused, he pointed out the 16th accused. It is a fact that evidence was let in before the trial court after seven years from the date of occurrence and at that time, PW1 was not working as Manager of the Estate.
22.For an unlawful assembly, the minimum number CRRP No.3171/2003 ..22..
required is five. The evidence would show that there were 16 persons armed with weapons, which they wielded. In a case, where more than five persons participated in the assembly, but, the identity of the accused was not established, it cannot be said that it was an unlawful assembly. It is necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the accused had done or committed some overt acts in prosecution of a common object of the unlawful assembly. It is true that active participation in active violence is not necessary. The persons, who by words or signs or otherwise engaged in violence, are equally members of the unlawful assembly. So, the number of those, who enter it, also should be reckoned to decide if the number is five or more and there should be a definite finding that the number of persons was five or more than five. In this case, the occurrence took place inside the Estate, where CRRP No.3171/2003 ..23..
the accused were working as workers. The prosecution had no case that they had trespassed into the property owned by the Estate and committed overt acts as against the Manager of the Estate. The formation of the unlawful assembly is not to be assumed merely because five or more persons met at a particular place and shortly afterwards, an offence is committed. The mere presence in an assembly does not make an unlawful assembly and no such person could be convicted of any offence with the aid of Section 149 of the IPC.
23.Determination of common object of an unlawful assembly is essentially a question of fact keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene and a host of similar and connected facts and circumstances.
24.In this case, admittedly, all the persons were not armed with deadly weapons. For the offence CRRP No.3171/2003 ..24..
under Section 149 of the IPC, no overt act by every person is to be proved. The only thing necessary to be decided is whether the accused shared the common object of the assembly. In the case on hand, there is no evidence to show that all the persons were armed with deadly weapons. In Suresh v. State of Kerala [2006 (1) KLT 78], a Division Bench of this Court held that the conviction of the accused for the offence under Section 148 of IPC without a finding that those who were convicted were armed with deadly weapons, is unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of 149 of the IPC for the mere reason that they were members of the unlawful assembly. There is a distinction between the offences under Sections 146 and 148 of the IPC. The offence under section 146 is punishable under Section 147 of the IPC. To constitute the offence of rioting as has been defined under CRRP No.3171/2003 ..25..
Section 146 of the IPC, the members of the unlawful assembly need not carry weapons, whereas a person charged with an offence under Section 148 of IPC must be armed with deadly weapon. In view of the above, the offence under section 148 of the IPC is not attracted in this case.
25.It is trite law that the substantial evidence is the evidence of identification in court. It is brought out from the evidence of PW1 that the accused were working in the Estate as workers and the parties were known to each other prior to the date of occurrence. As a general rule, the substantive evidence of a witness is the statement made in court. The purpose of prior test identification is to test and strengthen the trustworthiness of the evidence given before the court. It is, accordingly, considered as a rule of prudence to generally look for corroboration to establish the identification of the accused. CRRP No.3171/2003
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There is no case for the prosecution that the accused were strangers to PW1. Under such circumstances, test identification parade is not compulsory. However, the case of the prosecution in this case is that the accused persons, 16 in number, formed themselves into an unlawful assembly and assaulted PW1 in connection with a labour dispute. The accused denied the same. Going by the evidence of PW1, he alleged overt acts against accused 3 and 11. So far as others are concerned, he did not allege any overt act. They were attributed with the common object to perpetuate the crime. Accordingly, they were convicted of the offences relating to public tranquility and grievous hurt.
26.PW1 stated several things before the police in Ext.P1 First Information Statement. He did not state the verbatim reproduction of the statement when he was examined before the court as PW1. His case is that all the accused were CRRP No.3171/2003 ..27..
present to assault him. He made specific mention about accused 1, 3 and 11. Regarding others, according to him, they too assaulted him with stones and sticks. PW2, one of the staff attached to the Estate, stated a different version before the court regarding the overt acts committed by the accused. However, his evidence regarding accused 3 and 11 is in conformity with the evidence adduced by PW1. In the instant case, the evidence of PW1 reveals that he had not actually identified the accused before the court. When he was asked to identify the 3rd accused, he pointed out the 16th accused instead. Later, he stated that he could not identify each and every accused. When PW2 was examined, no such identification was made. Regarding the identification before the court, a Division Bench of this Court in Vayalali Girishan and Others v. State of Kerala [2016 KHC 204] held in paragraph 43 of the judgment as follows;
CRRP No.3171/2003
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"43. Recalling the discussion with regard to the presence, participation and fixation of identity of the accused, we hold that the evidence of PW 1 to 4 are convincing as regards the incident and there is no reason to doubt their version as regards the involvement of accused Nos. 1, 2, 12 and 15. But we are distressed to note that in the case of the other accused, the learned Sessions Judge has adopted a very callous approach. Undoubtedly, substantive evidence is the identification of the accused by the witness before the Court. But in the instant case, the deposition of the witnesses only reveals that the learned Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify in the deposition, with exactitude and certainty, that the person referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the Court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the Trial Courts, the importance of recording the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude. This is all the more important in a case of this nature where most of the accused are attempted to be roped in on the reason that they were members of the unlawful assembly and they had shared the common object. Unfortunately, there is no specific endorsement in the deposition of the eye witnesses that the CRRP No.3171/2003 ..29..
accused numbering 25 standing in the dock were identified by the witness in any acceptable manner known to law and the Court was satisfied by the identification. In other words, it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavor was made by the Court to individually fix each of the accused as being present at the scene of crime so that their complicity as members of an unlawful assembly in prosecution of the common object could be fixed. We have to mention that the identification of the accused in Court, which was conducted in an omnibus and perfunctory manner, cannot be held to be reliable to establish the complicity of accused Nos. 3 to 11, 13, 14 & 16 to 25 and to hold them vicariously liable for the offence under S.302 r/w 149 of the IPC."
27.In the case on hand, the depositions of the witnesses only reveal that the Assistant Sessions Judge clearly recorded the number of the accused in the deposition and no effort is seen to have undertaken to certify in the deposition that the persons referred to by the witnesses as the members of the unlawful assembly, which perpetrated to criminal act, are the persons who were standing in the dock. Hence, the offences punishable under Sections 143, 147, 148 and 149 of the IPC are not attracted.
CRRP No.3171/2003
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28.The next question is whether any of the accused would be personally held liable for the acts committed by them with the aid of Section 34 of the IPC. It is settled principle of law that even if the accused had not been charged with the aid of Section 34 of the IPC and instead charged with the aid of Section 149 of the IPC, they can be convicted with the aid of Section 34 of the IPC if evidence was adduced to prove that there was common intention to commit the crime. On going through Ext.P8 wound certificate, it is prima facie evident that PW1 sustained injuries in the nature of grievous hurt as defined under Section 320 of the IPC. In Ext.P1 First Information Statement, PW1 had stated that when he reached near the dispensary attached to the Estate, all the accused encircled him and the 11th accused attempted to kill him and gave a blow on his head with a stick and while so, all the other accused assaulted him with sticks and their hands. It CRRP No.3171/2003 ..31..
was further stated that the 3rd accused took a stone from the ground and hit on his head and thereafter, all of them kicked him into a nearby ditch. When he was examined before the court as PW1, he stated that while he was proceeding to his bungalow from the office, the 1st accused came running behind him and asked him to stay for a while as he would like to have a discussion with him. The request of the 1st accused within the premises of the employment could not be treated as an offence under Section 342 of the IPC. The further allegation is that pursuant to the request made by the 1st accused, all the other accused encircled him and assaulted him all over the body. The appellate court entered a finding that there was no conspiracy between the accused and PW1 to commit the crime. The said finding has not been challenged. Under the circumstances, it could not be assumed that the accused asked PW1 to stay for a while as a CRRP No.3171/2003 ..32..
result of a larger conspiracy between the parties. Apart from the above allegation, no overt act was alleged against the 1st accused when PW1 was examined before the court. Whatever allegations made by PW1 in Ext.P1 First Information Statement cannot be taken as proof unless it is brought in before the court in accordance with law.
29.PW1 alleged specific overt acts against the 3rd accused in Ext.P1 First Information Statement as well as his evidence before the trial court. But, during the trial, PW1 failed to identify the 3rd accused before the court. Instead of the 3rd accused, PW1 pointed out the 6th accused during the trial of the case. Similarly, PW1 alleged specific overt acts against the 11 th accused in Ext.P1 First Information Statement. In view of Vayalali Girishan's case (supra), this Court is unable to decide as to whether PW1 was referring to the 3rd accused, whose name found a place in the charge. Wrong CRRP No.3171/2003 ..33..
identification proved two things. PW1 had not identified the 3rd and 16th accused before the court. Dock identification was also not rightly made by the trial court. Although PW1 made specific allegation of overt acts against the 11th accused, no attempt was made to identify the 11th accused before the court. It was not a mistake on the part of the trial court. PW1 stated in cross-examination that he could not identify all the accused present before the court although he knew some of the accused working in the establishment. In the light of the statement made by PW1, no attempt was made to prove the identity of the accused before the court. PW1 made a general statement that all other accused assaulted him and he sustained injuries. In Ext.P1 First Information Statement, PW1 made mention of 14 persons as accused. However, two more persons were impleaded during investigation and filed final report implicating the 15th and 16th accused as CRRP No.3171/2003 ..34..
well. No evidence was adduced to prove the involvement of the 15th and 16th accused in the crime. The circumstances warranting to implicate them as accused have also not been explained. The 2nd accused in this case died pending proceedings and the sentence of imprisonment against him stands abated. However, the sentence of fine does not abate.
30.PW1 was conscious when the occurrence took place. He had not stated, when he was examined before the court, that he became unconscious and he could not remember what are all things done by the assailants on the date of occurrence. When a specific question was asked touching his condition at the time of occurrence, he did not give a specific answer that he became unconscious when he fell to the ditch. This would indicate that PW1 was aware of all the overt acts as against him. It is true that in an offence relating to hurt, it is not essential to prove each and every injury CRRP No.3171/2003 ..35..
sustained by the injured. On going through the evidence, PW1 had alleged specific overt acts as against the accused 3 and 11. Regarding the others, the only allegation is that all others assaulted him. PW2, one of the office staff attached to the Estate, adduced evidence to show that PW1 was assaulted in a particular manner as spoken by him. However, his evidence and the evidence of PW1 are different. He had stated the name of the assailants before the trial court. However, he too failed to identify the accused in accordance with law. In fact, dock identification was not done properly. The other independent witnesses examined by the prosecution were unanimous in nature to the extent that they did not know the details of the overt acts alleged to have been committed by the accused. They too failed to identify them before the court.
31.This is a case where the prosecution failed to conduct the identification parade to fix the CRRP No.3171/2003 ..36..
identity of the accused during investigation. As indicated earlier, identification of the accused is invariably not necessary in all cases where the injured has been acquainted with the assailants prior to the occurrence. When examined PW1, he stated that he was not aware of the details of all the accused present before the court and including their identity, which have been disclosed by him in Ext.P1 First Information Statement. Naturally, a doubt would arise as to how PW1 stated the name and address of the accused 1 to 14 in Ext.P1 First Information Statement with precision and clarity. The very same PW1, when examined before the court, stated otherwise. Dock identification was not done properly in this case. Non identification of the accused in clear terms before the trial court has cut the root of the prosecution. Under the said circumstances, it is not logical to convict some of the accused with the aid of Section 34 CRRP No.3171/2003 ..37..
of the IPC for the offence punishable under Section 326 of the IPC. It is true that PW1 sustained several injuries all over his body. The occurrence took place inside the establishment. The accused were not trespassers over the place or area where the occurrence took place. They were, admittedly, the workers in the establishment on the date of occurrence. Their entry within the establishment could not be treated as a trespass on their part.
32.It has come out in evidence that the management and the accused were at loggerheads in connection with labour disputes. The accused were on inimical terms with PW1, who was the Manager of the establishment. PW1 sustained injuries in the occurrence. As per the evidence on record, i.e., Exts.P2 to P7(d), it is clear that all the accused were present in the establishment on the date of occurrence. An incident also took place on the date of occurrence, whereby PW1 sustained injuries. In CRRP No.3171/2003 ..38..
a criminal case, the burden is on the part of the prosecution to prove the offences beyond reasonable doubt. On going through the evidence, the identity of the accused was not established in evidence in accordance with law. When identity is not established, it is not correct to convict the accused for the offences under Sections 323, 324 and 326 r/w 34 of the IPC. Admittedly, there is no specific endorsement in the depositions of PWs 1 and 2 that the accused, numbering 16, standing in the dock were identified by the witness in any acceptable manner and the court was satisfied with the identification. It is not clear from the evidence that PWs 1 and 2 or any witness examined by the prosecution specifically pointed out the accused to fix, individually, each of the accused as has been present at the crime scene.
33.Judged by the above standards, this Court is of the view that both the trial court and the CRRP No.3171/2003 ..39..
appellate court erroneously appreciated the evidence on record and wrongly convicted the accused for the offences punishable under Sections 143, 147, 148, 342, 323, 324 and 326 r/w Section 149 of the IPC. Hence, the accused 1 and 3 to 16 are found not guilty of the offences stated above and they are acquitted thereunder. Cancelling their bail bond, this Court directs that they be set at liberty. Pending applications, if any, stand disposed of.
The Criminal Revision Petition is allowed accordingly.
Sd/-
N.ANIL KUMAR JUDGE Bka/-