Kerala High Court
Prejith @ Omanakuttan vs State Of Kerala Rep. By on 24 December, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937
CRL.A.No. 63 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 74/1999 of ADDL.DISTRICT COURT (ADHOC-I),
ALAPPUZHA DATED 24-12-2002
APPELLANTS/ACCUSED:
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1. PREJITH @ OMANAKUTTAN,
S/O. GOPALANASSARI, MADATHIVELI VEEDU,
THANNEERMUKKOM PANCHAYATH, WARD NO.3
2. BIJU @ VAKKA BIJU S/O. SHANMUGHAN,
MADATHIVELI VEEDU, THANNEERMUKKOM PANCHAYATH
WARD NO.3.
3. SHIBU S/O. PADMANABHAN,
MADATHILPARAMBU COLONY,
THANNEERMUKKOM PANCHAYATH WARD NO.3.
4. ANI, S/O. DAMODHARAN, SAJEEV NILAYAM
THANNEERMUKKOM PANCHAYATH, WARD NO.3.
5. RAVEENDRAN S/O. PARAMESWARAN, ELANJIKKAL,
THANNEERMUKKOM PANCHAYATH, WARD NO.3.
6. PUSHPAN, S/O. OARANESWARAB,
THANNEERMUKKOM PANCHAYATH, WARD NO.3.
7. BAIJU @ SUNIL, S/O.VISWAMBHARAN,
MADATHILPARAMBU COLONY,
THANNEERMUKKOM PANCHAYATH, WARD NO.VI
8. SABU, S/O. PADMANABHAN,
MADATHIPARAMBU COLONY,
THANNEERMUKKOM PANCHAYATH WARD NO.VI
9. AMBY, S/O. KUMAR, ILLATHUVELI VEEDU,
THANNEERMUKKOM PANCHAYATH, WARD NO.VI.
BY ADVS.SRI.P.G.THAMPI (SR.)
SRI.S.SANAL KUMAR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA REP. BY
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.JIBU P. THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2015,
THE COURT ON 26-02-2016 DELIVERED THE FOLLOWING:
K. RAMAKRISHNAN, J.
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Crl.A.No.63 of 2003
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Dated this the 26th day of February, 2016.
JUDGMENT
The accused Nos.1 to 9 in S.C.No.74 of 1999 on the file of the Additional Sessions Court, Adhoc-I, Alappuzha are the appellants herein. The appellants were charge sheeted by the Circle Inspector of Police, Mararikulam police station in Crime No.237/1997 of Muhamma police station under sections 143, 147, 148,452, 427, 324 and 307 read with section 149 of the Indian Penal Code.
2. The case of the prosecution in nutshell was that on 20.10.1997, at about 5 p.m, Cws 1 to 7 had gone to the house with No.6/404 of Thanneermukkam panchayat situated in Madathilparambil Laksham veedu colony to meet one Babumon, who was an active member of Rashriya Swayam Sevak Sangh, to enquire about some incident happened in that locality. The accused persons belonging to the Communist Party of India (Marxist), on account of the political enmity and on seeing the workers of Rashtirya Swayam Sevak Sangh in that area, formed themselves into an unlawful assembly with deadly weapons like sword, iron rod, axe, sword stick, pointed Crl.A.No.63 of 2003 2 bamboo stick and stones - all dangerous weapons, and criminally trespassed into the varanda of the house of Babumon, brother of Shaji (PW9) and pelted stones against Cws 1 to 7 and voluntarily caused hurt to Cws 3, 5 and 6 as members of the unlawful assembly and with an intention to kill them, the first accused inflicted cut injury on CW2, on account of which, his right hand thumb was amputated and second accused inflicted injuries on the fingers of left hand of CW1 with sword stick and third accused inflicted cut injury on CW3 on his lift leg below knee with an axe and the 8th accused had beaten CW3 with an iron rod on his left hand above elbow and when all these injured entered the house of Babumon and closed the door, the accused persons caused mischief by pelting stones, breaking the doors and windows and causing damage to the window of the room causing a loss of Rs.15,000/- and thereby all of them have committed the offences punishable under sections 143, 147, 148, 452, 427, 324 and 307 read with section 149 of the Indian Penal Code.
3. After investigation, final report was filed before the Judicial First Class Magistrate Court-II, Cherthala, where it was taken on file as C.P.No.15/1998. After complying with the Crl.A.No.63 of 2003 3 formalities, learned Magistrate committed the case to the Sessions Court, Alappuzha under section 209 of the Code of Criminal Procedure (herein after referred to as 'the Code'). After committal, the Sessions Court took cognizance of the case as S.C.No.74/1999 and the case was originally made over to the Assistant Sessions Court, Cherthala for disposal. When the accused appeared before that court, after hearing both sides, Assistant Sessions Judge framed charge against the accused under sections 143, 147, 148, 452,427, 324 and 307 read with section 149 of the Indian Penal Code and the same was read over and explained to them and they pleaded not guilty. Thereafter the case was withdrawn and made over to the Additional Sessions Court, Ahoc-I, Alappuzha for disposal by the Sessions Judge.
4. In order to prove the case of the prosecution, Pws 1 to 15 were examined and Exts.P1 to P12 and Mos 1 to 9 were marked on their side. After closure of the prosecution evidence, the accused were questioned under section 313 of the Code and they denied all the incriminating circumstances brought against them in the prosecution evidence. They have further stated that they have not committed any offence and they were innocent of Crl.A.No.63 of 2003 4 the same and they were totally strangers to Cws1 to 7 and Cws1 to 7 have no acquaintance with them and according to them, they were all in the houses as prohibitory order under section 144 of the Code was imposed in that area. They have been falsely implicated in the case on account of the political enmity. Since evidence in this case did not warrant an acquittal under section 232 of the Code, the accused were called upon to enter on defence, but no defence evidence was adduced on their side.
5. After considering the evidence on record, the court below found that the prosecution has failed to prove the offence under section 307of the Indian Penal Code against the accused persons and acquitted them of that charge, but found them guilty under sections 143, 147, 148, 452, 427, 324, 326 read with section 149 of the Indian Penal Code and convicted them thereunder and sentenced them to undergo rigorous imprisonment for four months each under section 143 of the Indian Penal Code and rigorous imprisonment for one year each under section 148 of the Indian Penal Code and rigorous imprisonment for two years each and to pay a fine of Rs.2,000/- each, in default to undergo rigorous imprisonment for one year Crl.A.No.63 of 2003 5 each under section 452 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year each under section 427 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year each under section 324 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years each and also to pay a fine of Rs.3,000/- each, in default to undergo rigorous imprisonment for one year each under section 326 of the Indian Penal Code and substantive sentences were directed to run concurrently and the default sentences were directed to run consecutively. Set off was allowed for the period of detention already undertone under section 428 of the Code. Aggrieved by the same, the above appeal has been preferred by the appellants/accused Nos.1 to 9 before the court below.
6. Heard Sri. S.Sanal Kumar, learned counsel appearing for the appellants and Sri Jibu P. Thomas, learned Public Prosecutor appearing for the State.
7. Learned counsel for the appellants submitted that except interest testimonies of Pws 1 to 5, 8 and 9, there is no other independent witnesses examined to prove the case. It is an admitted fact that Cws 1 to 5, 8 and 9 are belonging to Crl.A.No.63 of 2003 6 Rashtriya Swayam Sevak Organization and the accused persons belonging to Community Party of India (Marxist). It was brought out in evidence that there was no possibility of any ill will between the accused and the injured except the common political rivalry among these two organizations. Further, the witnesses were residing 10 to 15 k.ms away from the place of occurrence and there was no possibility of the witnesses having acquaintance with the accused persons so as to identify them later. No test identification parade was conducted and after seeing the accused persons on the date of incident, even according to the prosecution witnesses, they were seeing the accused persons for the first time in court. So their identity in court without test identification parade cannot be relied on for the purpose of convicting them. Further, there was a delay of two days in the First Information Report reaching the court. Further, it was brought out in evidence that all the injured persons travelled in the same car in which they alleged to have come to the place and they happened to meet other leaders of the organization and as such, there is possibility of deliberation and discussion before supplying the name of accused persons and false implication in such cases cannot be ruled out. So, in Crl.A.No.63 of 2003 7 the absence of any test identification parade and in the absence of any independent witness examined to prove the incident, it is not safe to rely on the evidence of prosecution witnesses to convict the accused. Further, the court below had disbelieved the recovery and come to the conclusion that the same cannot be used as incriminating circumstance either against the first accused or other accused persons. There is no motive for the accused persons to attack the injured persons. So under such circumstances, the court below was not justified in convicting the accused for the offence alleged. Learned counsel relied on the decisions reported in Dana Yadav Alias Dahu and others v. State of Bihar (2002(7) SCC 295) and Ashok Debbarma Alias Achak Debbarma v. State of Tripura (2014 (4) SCC
747) in support of his case.
8. On the other hand, learned Public Prosecutor submitted that the evidence of prosecution witnesses will go to show that they have prior acquaintance with the accused persons on account of their political activity in the area and they are not new persons and it cannot be said that they were seeing the accused persons for the first time and as such, identification of the accused persons in court can be relied on and there is no Crl.A.No.63 of 2003 8 inconsistency in the evidence of prosecution witnesses in proving the case. So under the circumstances, non conducting test identification parade is not fatal and the court below had considered this aspect and rightly convicted the accused persons and no interference is called for.
9. The case of the prosecution as emerged from the prosecution witnesses was that Pws 1 to 5 and 8 are the office bearers of Rashtriya Swayam Sevak Sangh of Alappuzha district and Cherthala taluk. On 20.10.1997, when they got information that some Marxist party sympathizers in Thannermukkam area were obstructing the children from attending the sakha, participating in the drill and threatening the children in attending the same and in order to enquire about the same, Pws 1 to 5, 7 and one Swamikunju came to the house of Babumon, brother of PW9, and enquired about him. At that time, PW9 who was in the house told that he was not there. At that time, the accused persons along with fifteen others formed themselves into an unlawful assembly and first accused was holding a sword, second accused was holding a sword stick, third accused was holding an axe, 8th accused was holding an iron rod, accused Nos.4, 5 and 7 were holing iron stick, iron rod Crl.A.No.63 of 2003 9 and bamboo sticks with sharp end and the 9th accused and others were holding granite stone pieces and bricks and on seeing of Cws1 to 7,the first accused shouted "R.S.S. .
' and immediately some persons pelted stone against them, which hit against Pws 5 and 8 and caused some injuries and at that time, the first accused inflicted a cut injury with the sword stick on PW2 Shaji, which fell on his right hand, chopped of his right hand thumb finger. The second accused inflicted cut injury on PW1 and he warded off the same, which caused injury to his left hand little and ring fingers and they were shouting to kill them and at that time, the third accused inflicted cut injury on PW3-Murali, which fell on his leg and caused injuries and 7th accused beating with an iron rod on PW8 and they also caused injury to PW5. Getting frightened on account of that, they entered the house of Babumon and closed the door and at that time, the accused persons caused damage to the house and thereafter they left the place.
10. PW9 had dressed the wound of PW2 and thereafter he was taken first to Government Hospital, Cherthala, from there PW2 was taken to Medical Trust Hospital, Ernakulam and Crl.A.No.63 of 2003 10 there from he was taken to Specialist Hospital, Ernakulam for treatment. PW6 examined Pws1, 4 and 3 and issued Exts.P2, P3 and P4 wound certificates. PW11 examined PW2, who issued Ext.P7 wound certificate. He was treated by PW10 who issued Ext.P6 discharge certificate.
11. On getting intimation regarding the admission of these injured in the hospital, PW14 the Sub Inspector of Police attached to Muhamma police station went to the hospital and recorded Ext.P1 statement of PW1 and prepared Ext.P1(a) to
(d) body mahazers of Pws 1, 2, 3 and 8 and came to the police station and registered Ext.P9 First Information Report as Crime No.37/1997 of Muhamma police station under sections 143, 147, 148, 149, 452, 427, 324 and 307 of the Indian Penal Code against accused 1 to 8 and other 15 identifiable persons. The investigation in this case was conducted by PW15, the Circle Inspector of Police, Mararikulam. He questioned the witnesses and recorded their statements. He went to the place of occurrence and prepared Ext.P10 scene mahazer of the place of occurrence in the presence of PW12 and another. But he had denied having signed the document. He admitted that police came there and prepared the mahazer. He has also admitted Crl.A.No.63 of 2003 11 that he knew some of the persons, who were residing there. He had also seized Mos.4, 4(a), 5, 5(a), 5(b), 5(c), 5(d), 6, 7, 7(a), 8, 8(a) and 9 after describing the same in the scene mahzer. During investigation, it was revealed that the 9th accused also involved in the case and so he gave Ext.P11 report showing the name and addresses of accused 1 to 9. He arrested the 9th accused on 23.10.1997. Accused 1 to 8 appeared before him on 4.11.1997. He recorded their arrest. When he questioned the first accused, he had stated that the weapons were kept in the house of the 9th accused and if he is taken, he will take and produce the same and accordingly as lead by him and 9th accused, he went to the house of the 9th accused and as taken and produced by the first accused, Mos 1 to 3 were seized as per Ext.P8 mahazer in the presence of PW13. As per the request, PW7 village officer prepared Ext.P5 sketch plan of the place of occurrence on the basis of Ext.P10 scene mahazer. The articles seized were produced before court and as per the requisition of the investigating officer, they were sent for chemical examination and Ext.P12 chemical analysis report from Forensic Science Laboratory, Thiruvananthapuram, obtained which shows that the weapons contained blood, but it Crl.A.No.63 of 2003 12 is not sufficient to determine its origin. He completed investigation and submitted final report.
12. Pws 1 to 5 and 8 are the injured and PW9 is an eye witness to the incident, who is none other than the brother of Babumon, whom Pws 1 to 5, 8 and Swamikunju wanted to see. According to them, when they went there, the said Babumon was not there and when enquired about him, PW9 told that he had gone to Cherthala and while they were talking from the veranda of the house of PW9, where Babumon was residing along with their father and wife of PW9. The accused persons and others on seeing them, came there with weapon in their hands like sword, sword stick, axe, bricks and granite stone pieces and shouted that they are Rashtirya Swayam Sevak people and pelted stone against them. When they were about to enter the house of PW9, due to a fearful act, the accused persons came there and the first accused inflicted cut injury on PW2, which fell on his right hand thumb was chopped off. The second accused inflicted cut injury on PW1, which fell on his fingers and caused injuries. The third accused inflicted injury on PW7 with an axe and the 8th accused inflicted injury on PW3 with an iron rod. Due to pelting of stones, others sustained Crl.A.No.63 of 2003 13 some injuries. When they went inside the house and closed the door, the accused persons caused damage to the house shouting to kill them and after some time they left. In the mean time, PW9 dressed the wound. Thereafter all of them went in the same car in which they came for enquiring about the incident in those areas. They had first taken to Government Hospital, Cherthala and thereafter PW2 was taken to Medical Trust Hospital and from there he was taken to Specialist Hospital, Ernakulam for better treatment, from where his amputated thump was corrected and re-fixed. All the witnesses have deposed that they have prior acquaintance with the accused persons and they have mentioned the names of the accused to the doctor. They also admitted that they were residing in different places which is away from the place of occurrence, but hey have deposed that they had acquaintance with the accused persons in connection with their organization activities in that area. They have also admitted that after the incident they were seeing the accused persons from court and they were not shown to them for the purpose of identification during the course of investigation. It is also an admitted fact that both the injured and the accused persons belong to different political organizations Crl.A.No.63 of 2003 14 and having their area of operation in Alappuzha District, including the place from where the incident occurred. The fact that there was some obstructions caused to the children who are attending the Sakha of the Rashtriya Swayam Sevak (RSS) and there was some threat from the organizers of Community Party of India (Marxist) and the injured persons who are the office bearers of the Rashtriya Swyam Sevak Sangh in that district in different level and they came there for enquiring about the incident with Babumon, the brother of PW9 and it was at that time the incident occurred etc were not seriously challenged in cross examination. The only suggestion given to them was that they came there to attack the Community Party (Marxist), workers and in that they sustained injuries. There is no case for the accused that there was any case registered against the present injured persons in connection with their involvement in any incident in that area, either on that day or nearby days prior to the incident. So the injured having acquaintance with the accused persons and identifying them as the persons who had inflicted injuries on them to the police need not doubted in the circumstances of the case.
13. It is true that identification of accused by the witnesses Crl.A.No.63 of 2003 15 for the first time in court is the weakest form of evidence, unless it is corroborated by the identification of the accused by the witnesses in the test identification parade conducted by the police as part of their investigation. But it is also settled law that identification made in the test identification parade is not substantive evidence, but what is spoken to by the witnesses and identification made by them in court is the substantive evidence regarding the proof of identification of the accused in the commission of the offence. It is for the court to ascertain and evaluate their evidence and come to a conclusion as to whether the evidence given by the witnesses regarding the identity can be relied on or not. It is also settled law that merely because test identification parade was not conducted is not fatal always and that is not a ground to disbelieve the evidence of witnesses regarding the identification made by them for the first time in court. That may depend upon the facts of the case and the reliability of the evidence of the witnesses deposed in this regard. In this case there is nothing brought out to discredit the evidence of PWs 1 to 5, 8 and 9 regarding the identification of the accused persons as the persons who have committed the offence. So there is nothing wrong for the court below to rely on Crl.A.No.63 of 2003 16 their evidence for this purpose in the absence of test identification parade as contended by the counsel for the appellants. There is no dispute regarding the dictum laid down in the decision reported in Dana Yadav alias Dahu and Others v. State of Bihar [(2002) 7 SCC 295]. In that case also it has been held that ,even if test identification parade is not held, witnesses identified the accused persons for the first time before the court, evidence regarding the identification, does not become inadmissible and cannot be discarded on the ground of not being preceded by test identification parade, when the court finds the same to be trustworthy. But the evidence of identification of the accused before court should not ordinarily form the basis of conviction unless corroborated by previous identification in test identification parade or any other evidence though there are exceptions to this Rule. Further the identification before the court should not normally be relied upon, if the name of the accused is neither mentioned in the first information report or before the police. So even as per the above dictum, it is not a uniform rule that evidence of witnesses identifying the accused for the first time in court cannot be relied on in the absence of test identification parade. It is only cautioned the court in Crl.A.No.63 of 2003 17 relying on such evidence and is also held that in exceptional circumstances, the court can rely on such evidence if it is trustworthy as well.
14. In this case, there is nothing brought out to disbelieve the evidence of PWs 1 to 5, 7 and 9 in this regard. PW9 is a resident of that locality. According to him, he was residing there along with his brother Babumon in the same house where the incident occurred. There is no dispute regarding the fact that there was an incident occurred when the injured witnesses came to the house of Babumon. It is also seen from the scene mahazar that some damage had been caused to the house and a portion of the damaged articles was seized from the place of occurrence and produced before court and marked as MO4 series to MO9. It is also seen from MO9 coupled with the Forensic Science Laboratory report Ext.P12 that bloodstains were found in the mattresses as well.
15. Further it will be seen from Ext.P2, P3 and P4 that the names of accused Nos.1, 2 and 3 were mentioned as the person who had inflicted injuries. It is also mentioned that the place of occurrence was Babu's House at Karikkattu Laksham Veedu colony. So the presence of these persons at the first instance has Crl.A.No.63 of 2003 18 been given by the injured to the doctor. There is no possibility of any concoction of giving names of these persons to the doctor at that time. In Ext.P1, the name of 9th accused was not mentioned, as the person was present in that place. Further in the First Information Report was also the name of the 9th accused was not mentioned. It is not known how the witnesses have come to know about the presence of 9th accused at the place of occurrence so as to furnish his name on a later occasion. The investigation officer has no case that after the 9th accused was arrested, he was shown to the witnesses and they have identified him as one of the person present at the time of incident. The injured witnesses also deposed that the accused persons were not shown to them after the incident as part of the investigation. So in view of the dictum laid down in the above decision, the identification made by the injured persons regarding the 9th accused for the first time in court cannot be relied on without corroboration from independent witnesses and as such the reliance placed by the court below of the injured witnesses to convict the 9th accused also for the offences alleged in the circumstances of the case is unsustainable in law and to that extent the same is liable to be set aside and the 9th accused is Crl.A.No.63 of 2003 19 entitled to get acquittal of the charge levelled against him giving him the benefit of doubt.
16. The first information report in this case was registered on 20.10.1997 at 10.15 p.m. itself but it reached the court on 22.10.2007 at 10.30 a.m. PWs14 and 15 have categorically stated that since there was serious law and order situation prevailing in that locality and prohibitory order under Section 144 of the Code of Criminal Procedure Code was declared in that area immediately after the incident and police were busy with law and order duty and that was the reason for the sending the First Information Report to court appears to be convincing. So the court below was perfectly justified in coming to the conclusion that the delay in the first information report reaching the court alone is not a ground to suspect the genuineness of the first information statement given by the injured and the deliberation and discussion before giving the first information statement by the injured so as to falsely implicate the accused as contended by the defence was rightly rejected by the court below in the circumstances of the case.
17. The other contention raised by the counsel for the defence was that, Babumon was not examined and in fact Crl.A.No.63 of 2003 20 Babumon was replaced by PW9 and non-examination of Babumon is fatal. It may be mentioned here that the fact that Babumon was an accused in a case where he attacked the sympathizers of Communist Party of India (Marxist) and he was convicted and appeal was pending was not in dispute. According to the defence, all the injured along with the said Babumon conspired together and attacked some of the Marxist party workers in that area and in that attempt they sustained some injuries. But except the suggestion given, there is no other evidence adduced on this aspect. Further the fact that the injured persons were taken to hospital by PW9 is not disputed as such. Non-examination of the driver of the car is not fatal in this case. It is seen from Ext.P2 wound certificate that PW1 Suresh Babu sustained fracture middle phalnax of left little finger along with other injuries. It is also seen from Exts.P6 and P7 wound certificates that PW2 sustained amputation of right thumb finger. Considering the nature of injury sustained on the basis of the evidence, court below has rightly come to the conclusion that offence under Section 307 of the Indian Penal Code was not made out, but on the basis of the evidence the accused can be convicted for the offence under Section 326 of the Indian Penal Crl.A.No.63 of 2003 21 Code as grievous injury has been caused to PW1 and 2 and rightly convicted them for the offence under Section 326 of the Indian Penal Code, as it is a lesser offence for the offence under Section 307 of the Indian Penal Code, even without a formal charge of committing such offence by the accused persons relying on the dictum laid down in the decision reported in Moirangthem Chaoba Singh v. State of Manipur (1982 Crl.L.J., 1806) and also applying the principles in Section 221 (2) of Criminal Procedure Code. From the evidence it is clear that accused Nos.1 to 8 formed themselves an unlawful assembly and names of these persons were mentioned in the the First Information Statement itself by PW1, when he gave Ext.P1 statement and as such court below was perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that accused Nos.1 to 8 have formed themselves an unlawful assembly with deadly weapons like sword, stick, axe, iron rod etc., and committed rioting and mischief and attacked them with dangerous weapon causing voluntary hurt including grievous hurt and also caused damage to the house of PW9 and thereby accused Nos.1 to 8 have committed the offence punishable under Section 143, 147, 148, Crl.A.No.63 of 2003 22 324, 326, 427, 452 read with Section 149 of the Indian Penal Code and rightly convicted them for the said offence. I do not find any reason to interfere with the finding of the court below as against accused Nos.1 to 8 in this regard though this court found that the evidence is not sufficient to convict the 9th accused for the offence alleged and he is entitled to get acquittal of the charge levelled against him giving him the benefit of doubt. In view of the fact that 9th accused was found not guilty and he is entitled to get acquittal, the sentence imposed against him is not proper and the same is set aside.
18. As regards the other accused persons are concerned, court had sentenced them to undergo rigorous imprisonment for four months each under Section 143 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year each under Section 148 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years each and also to pay a fine of 2,000/- each, in default to undergo rigorous imprisonment for one year each, under Section 452 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year each under Section 427 of the Indian Penal Code and further sentenced to undergo Crl.A.No.63 of 2003 23 rigorous imprisonment for one year each under Section 324 Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years each and also to pay a fine of 5,000/-
each, in default to undergo rigorous imprisonment for one year each under Section 326 of the Indian Penal Code and directed the substantive sentences run concurrently. Set off was allowed for the period of detention already undergone by him. The court below also ordered that if the fine amount is realised, an amount of 5,000/- be paid to PW1 and 15,000/- to PW2, 3,000/- to PW3, 2,000/- to PW4 and 5,000/- to PW9 as compensation under Section 357(1)(b) of the Code of Criminal Procedure.
19. It is a political clash occurred without any motive, such incidents are nowadays increasing causing danger to the innocent people and threat to the society as such. Showing undue leniency in sentencing in such cases will only promote lawlessness in the society and such acts should not be encouraged as well. So the substantive sentence imposed by the court below for all the offence considering the nature of injury sustained, weapon used, the manner in which the attack was made and the reason behind the incident without any personnel enmity or personnel gain, but for political motive cannot be said Crl.A.No.63 of 2003 24 to be excessive or harsh. But at the same time, the default sentence of non-payment of fine appears to be on the higher side, which I feel can be reduced to three months rigorous imprisonment each for the offences for which fine was imposed as additional sentence will be sufficient and that will meet the ends of justice. So while confirming the substantive sentence imposed by the court below for the offences alleged, the default sentence for non-payment of fine for the offences for which fine was imposed as part of the sentence alone is set aside and the same is reduced to three months rigorous imprisonment each. With the above modification of the default sentence alone the sentence imposed against the accused Nos.1 to 8 are hereby modified and confirmed to the extent as follows:
"The accused persons 1 to 8 are sentenced to undergo rigorous imprisonment for four months each under Section 143 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year each under Section 148 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of 2,000/- each, in default to undergo rigorous imprisonment for three months each, under Section 452 of the Indian Penal Code Crl.A.No.63 of 2003 25 and further sentenced to undergo rigorous imprisonment for one year under Section 427 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year under Section 324 Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years each and also to pay a fine of 5,000/- each, in default to undergo rigorous imprisonment for three months each under Section 326 of the Indian Penal Code and directed the sentences run concurrently. Set off was allowed for the period of detention already undergone by them under section 428 of the Code." The points are answered accordingly.
In the result, the appeal is allowed in part. The order of conviction and sentence passed by the court below against the 9th accused for the offences under Section 143, 148, 149, 452, 324, 326 and 427 of the Indian Penal Code are hereby set aside and he is acquitted of the charge levelled against him giving him the benefit of doubt. The order of conviction and the substantive sentence imposed against accused Nos.1 to 8 for the offences under Section 143, 148, 149, 452, 324, 326 and 427 read with Section 149 of the Indian Penal Code and also the substantive sentence imposed are hereby confirmed, but the default sentence imposed for the fine imposed for the offences alone is Crl.A.No.63 of 2003 26 set aside and the same is reduced to three months rigorous imprisonment each instead of one year rigorous imprisonment imposed by the court below. The compensation awarded under Section 357(1)(b) of the Code of Criminal Procedure to the victim injured is hereby confirmed.
As mentioned above, the appeal is allowed in part and disposed of accordingly.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl/ss /true copy/ P.S to Judge