IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 CRL.A.No. 1053 of 2001() {S.C.NO.137/2001 OF THE ADDITIONAL SESSIONS COURT, ALAPPUZHA} .................... APPELLANT(S)/ACCUSED 2,3,4 & 10 TO 15: 1. SUDHA, W/O.DINESAN, VADUTHALANIKARTHIL,WARD VI, AROOR PANCHAYATH. 2. MISHA, D/O.RAVEENDRAN, CHATHANATTUCHIRA VEEDU, WARD VI, AROOR PANCHAYATH. 3. SYAMALA, W/O.RADHAKRISHNAN NAIR, THEKKEVADUTHALA, WARD VI, AROOR PANCHAYATH. 4. MAHILA, W/O.PUSHKARAN, VADUTHALANIKARTHIL,WARD VI, AROOR PANCHAYATH. 5. AUGUSTINE, S/O.OUSEPH, MECHERIPARAMBIL,WARD VI, AROOR PANCHAYATH. 6. RADHAKRISHNAN NAIR, S/O.KUMARAN NAIR, THEKKEVADUTHALA VEEDU, WARD VI, AROOR PANCHAYATH. 7. PUSHKARAN, S/O.VELAPPAN, VADUTHALANIKARTHIL,WARD VI, AROOR PANCHAYATH. 8. SHAJI, S/O.VELAPPAN, VADUTHALA VEEDU,WARD VI, AROOR PANCHAYATH. CRL.A.No. 1053 of 2001 :: 2 :: 9. DINESAN, S/O.THANKAPPAN, VADUTHALANIKARTHIL,WARD VI, AROOR PANCHAYATH. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S)/COMPLAINANT: ---------------------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KUTHIATHODE, REPRESENTED THE BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CRA.NO.1055/2001 ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------------------------ CRL.A.No.1053 & 1055 of 2001 ------------------------------------------ Dated this the 16th day of March, 2009. JUDGMENT Accused 2, 3, 4 and 10 to 15 in S.C.No.137/01 on the file of the Additional Sessions Court, Alappuzha, are the appellants in Crl.A.No.1053/01. Accused 5, 6, 7, 8, 9 and 16 to 18 in the same Sessions Case are the appellants in Crl.A.No.1055/01. The accused were prosecuted, convicted and sentenced for offences under Sections 143, 147, 148, 447, 427, 324 and 326 read with Section 149 of the Indian Penal Code. They were sentenced for different periods of imprisonment and hence this appeal. 2. The prosecution case, in brief, is that on 16.9.1998, the accused persons 18 in number (1st accused having died on the date of the incident and at the spot of the incident) formed themselves into an unlawful assembly and in furtherance of their comm object to trespass into the property of PW.1 and to demolish the compound wall constructed along the southern side of the property and to demolish the house CRL.A.No.1053 & 1055 of 2001 :: 2 :: bearing door No.6/479 armed with deadly weapons, committed rioting, demolished the said compound wall and trespassed into the property and demolished a room on the western side of the property. When Pws.1 and 2 obstructed the mischief, accused 11 to 14 in furtherance of their common object beat Pws.1 and 2 with iron bars and cross bars, as a result thereof PW.1 sustained simple injuries and PW.2 sustained a grievous hurt viz., fracture of lumbar vertebra. 3. Originally, accused 1 to 3, 6, 7 to 15 were specifically included in the FIR which was one lodged for the offences mentioned above, except 427 and 447 and 326. Later by Ext.P8 report dated 17.9.98 other accused were also implicated and a report was filed in this regard before the court. Subsequently, the offence under Section 326 was also included and Ext.P10 report was filed on 10.3.1999. PW.16 investigating officer conducted the investigation. He questioned the other prosecution witnesses and charge sheet was laid. CRL.A.No.1053 & 1055 of 2001 :: 3 :: 4. PW.1 is the de facto complainant and the accused in S.C.No.310/99, the appeal (Crl.A.no.935/01)from which was heard, along with these appeals and disposed of by me by a separate judgment today. PW.2 is the wife of PW.1. Pws.3 and 4, though cited as eye witnesses, turned hostile. PW.5 is the uncle's son of PW.1 and PW.6 is the brother of PW.2. PW.7 cited as an eye witness turned hostile. PW.8 is the Village Officer and PW.9 is the vendor of Ext.P1 from whom PW.1 had purchased 6 cents of property. PW.10 is the former panchayat president. PW.11 is the witness to the scene mahazar and Pws.1 2 and 13 are the doctors who proved Exts.P3 and P4 wound certificates and Ext.P5 discharge certificate respectively relating to Pws.1 and 2. PW.14 is the Sub Inspector of Police who recorded FI statement. PW.15 Sub Inspector of Police prepared Ext.P7 FIR. PW.16, as stated above, conducted the investigation. 5. PW.1 the complainant deposed that the accused had formed themselves into an unlawful assembly and had CRL.A.No.1053 & 1055 of 2001 :: 4 :: gathered at the house of one Mohanan with an intention to demolish the compound wall constructed by PW.1 on the southern side of the property. They had come to the spot and they started demolishing the wall. PW.1 had pleaded to stop the demolition. When he tried to obstruct, he was first beaten up by the 11th accused. He fell. Thereafter accused 12 to 14 inflicted injuries on him. PW.2 - his wife, tried to intervene and she was also given blows by the accused. Pws.1 and 2 had then left the spot in a scooter. They had gone to the Community Health Centre at Aroor. Thereafter they were admitted in the Government General Hospital, Ernakulam on 17.9.1998 and they had remained in the hospital till 14.10.1998. 6. PW.2 the wife of PW.1 deposed almost along the same lines. What is noteworthy in the testimony of Pws.1 and 2, is that they did not suggest any overt act on the part of Treasa, who was arrayed as the 1st accused (for some untenable reason, though it has come out in evidence that she CRL.A.No.1053 & 1055 of 2001 :: 5 :: had been inflicted a fatal injury on the spot and she was declared dead when she was taken to the local Community Health Centre). Pws.1 and 2 have only said that deceased Treasa, the 1st accused, was one among the persons who indulged in demolition of the building. But the version of Pws.1 and 2 is that they had gone to report to the police and for medical attendance. They had not suggested any overt act on the part of Treasa, the deceased as against their person. Pws.3 and 4, though cited as eye witnesses, turned hostile and insofar as Pws.5 and 6 are concerned, they are not persons who are residing in the neighbourhood. PW.5 is the first cousin of PW.1, being the latter's uncle's son and PW.6 is the brother- in-law of PW.2. PW.5 spoke about the assembly of several persons at the spot. On a reading of the testimony of PW.5, I found that PW.5 had not identified all the accused in the dock. 7. Insofar as PW.6 is concerned, according to him, he had been coming there to borrow some money from PW.2 and he found a large gathering of people and being afraid, he CRL.A.No.1053 & 1055 of 2001 :: 6 :: turned back and left the place. He is not an eye witness to any of the injuries having been inflicted on PWs.1 and 2. 8. PW.4 in chief examination deposed that he had seen the incident in which the compound wall was demolished. But, he could not identify the persons. He further stated that he did not see any of the accused there. He denied that he had given the names to the police who had indulged in the incident to the police. Though he admitted that police had questioned him, in cross-examination he deposed that according to him, about 10 to 15 persons were engaged in the demolition of the wall. 9. PW.7, though cited as an eye witness, turned hostile. The other witnesses have not witnessed the incident. PW.8, is a Village Officer and PW.9 is the vendor of the property from whom PW.1 had purchased the same. Pws.12 and 13 are the doctors who issued the wound certificate and discharge certificate. CRL.A.No.1053 & 1055 of 2001 :: 7 :: 10. Learned counsel for the accused in both these appeals submitted that the prosecution has not given a truthful version of the incident. There is a complete silence as regards the fact that one of the persons, who had gathered at the spot, Treasa (arrayed as an accused) died on account of a blow inflicted with a crow bar by PW.1. The prosecution was bound to explain how Treasa had met with her death in the incident which had taken place; it was further submitted that the offence of trespass and mischief could have been proved only if the prosecution had proved that the compound wall was constructed within the property of PW.1. No measurement of the property was effected. No evidence has been placed on record to show that the accused had demolished the wall constructed in a private property and thereby committed mischief. The prosecution does not have any case regarding the unlawful assembly having been formed for the purpose of committing an offence of even simple hurt on Pws.1 and 2. In fact, there was no unlawful assembly. Nor was there any CRL.A.No.1053 & 1055 of 2001 :: 8 :: common intention harboured by the accused to commit an offence. 11. It was further contended that the prosecution has not given any explanation as to why only accused 1 to 3, accused 6, 7, 11 and 15 were originally named by PW.1. Further going by the testimony of PW.1, the overt act insofar as the infliction of the injury is concerned is attributed only to accused 11 and 12 to 14. Insofar as PW.2 is concerned such overt acts are alleged only against accused 11, 12 and 14. No overt act insofar as the infliction of the injury is attributed to the other accused. 12. It is further contended that none of the accused are identified by Pws.1 and 2. Pws.5 and 6 are pure chance witnesses and their testimony is completely unbelievable. The prosecution has failed to bring about any explanation whatsoever for the fact that in the same incident the wife of the 11th accused Treasa, arrayed as 1st accused in this case, had met with her death. It is further contended that no CRL.A.No.1053 & 1055 of 2001 :: 9 :: weapons were recovered from their house. Though as per Ext.P9 series, a search was conducted on 17.9.1998, Ext.P6 series is seen to have reached the court only on 19.9.1998. Since the prosecution was unable to prove the case beyond doubt, the benefit of doubt must be given to the accused. 13. Learned Public Prosecutor submits that the injuries sustained by Pws.1 and 2 in the incident is proved by the wound certificate and the discharge certificate. Pws.5 and 6 are natural witnesses. They spoke to the truth that the accused had gathered for the purpose of demolition of the compound wall which would amount to the commission of offence of mischief and that has been proved. Further, that PW.2 had suffered grievous hurt has also been proved. Therefore, the accused have been rightly convicted for the aforementioned offences. 14. I have considered and appreciated the evidence in its entirety. I have also heard counsel on both sides, at length. CRL.A.No.1053 & 1055 of 2001 :: 10 :: 15. According to the prosecution, apart from the 18 persons named in the FIR, other persons were present at the spot. The case of the prosecution is that the common intention harboured was for the purpose of demolition of the wall and structures which were allegedly constructed by PW.1 encroaching into the puramboke land. Insofar as the offence trespass and mischief are concerned, the first ingredient which the prosecution ought to have proved is that the compound wall and the structures, which were demolished, were actually constructed in the private property of PW.1. No doubt PW.1 has deposed in this regard. But, I take note of the evidence of PW.8 Village Officer that he was coming to the spot on the same day for effecting a measurement of the property. But he reached only later; i.e. after the incident. That a complaint had been lodged with the panchayat officials and the Revenue Officials regarding the encroachment is proved by PW.10 the panchayat president. In the circumstances, the necessary evidence to prove that there was actually trespass and CRL.A.No.1053 & 1055 of 2001 :: 11 :: mischief having been committed by the accused, has not been placed on record by the prosecution. Even a copy of the complaint which would necessarily be available in the Taluk Office could have been produced. A perusal of the scene mahazar would show that the access on the western side to the property of PW.1 had been reduced by reason of the construction of the compound wall. In these circumstances, I find it difficult to sustain the conviction of the accused for offences under Sections 447 and 427 of the Indian Penal Code. 16. Insofar as the infliction of injuries on Pws.1 and 2 are concerned, no doubt, in a case where a large number of people are alleged to have constituted an unlawful assembly and harboured a common intention, it may not be possible to meticulously prove the link between each injury and the accused and it will suffice, if the prosecution proves that the accused together had harboured a common intention. But it is not the case of the prosecution that the accused had constituted themselves into an unlawful assembly for the CRL.A.No.1053 & 1055 of 2001 :: 12 :: purpose of inflicting an injury on Pws.1 and 2 as such. The case of the prosecution is that an unlawful assembly was constituted for the purpose of demolition of the new wall constructed along the thodu. I also find it difficult to accept the version of PW.1, as it does not harmonise with the wound certificate and the discharge summary. According to PW.1 when he tried to intervene with the demolition of the compound wall, the 11th accused, husband of the deceased Treasa, had, with an iron rod, given a blow on his head. The wound certificate Ext.P4 which relates to PW.1 shows that he had suffered an abraded contusion 5 x 4 cm lateral aspect of left eye and abrasion 3 x 1.5 cm back of chest left side. According to PW.1, he suffered those injuries on account of the blow on his head. The wound certificate does not reflect the same. Further PW.1 himself does not identify any of the accused having committed any overt act insofar as infliction of injuries on him are concerned, though he refers to accused 12 to 14 as such. PW.2 also mentions about she having sustained CRL.A.No.1053 & 1055 of 2001 :: 13 :: injuries with both iron rods and crow bars, but the wound certificate relating to her does not show any such serious injury in the lower limbs. Insofar as the fracture of the 5th vertebra, the wound certificate issued in this regard dated 16.9.1998 does not reveal the fracture. Further, according to PW.2, Pws.1 and 2 left the place in a scooter. There is no explanation as to how a person, who has sustained a vertebral fracture, could travel in a scooter. According to PW.1, they had left the place in an autorickshaw. The discharge summary relating to PW.2 shows that on X-ray examination, it was found that she had suffered a fracture of the vertebra. PW.13 doctor is not in a position to say when the X-ray was taken. The evidence on record cannot lead one to the safe conclusion that PW.2 had suffered a grievous hurt in the course of the incidents which took place on 16.9.1998. 17. What makes it difficult for me to accept the prosecution case is the total absence of any mention whatsoever by Pws.1 and 2 regarding the serious injury that CRL.A.No.1053 & 1055 of 2001 :: 14 :: was suffered by the 1st accused Treasa, wife of 11th accused. It has come out in evidence, (even without referring to the evidence adduced in the other case) that Treasa had died on the spot on account of the blow having been inflicted on her head. It is the specific suggestion of the accused that the blow has been inflicted by PW.1. According to PW.1, they did not even see Treasa falling down in an encounter, though Pws.1 and 2 would have it that Treasa was leading the Gang for demolition of the compound wall. The prosecution has not even made an attempt to bring in evidence the final report in S.C.No.310/99. The prosecution has not taken any effort whatsoever to explain the fact that Treasa arrayed as the 1st accused herein, had met with a fatal injury in the incident on 16.9.1998, nor was there any attempt or explanation in this regard by Pws.1 and 2 who are stated to have suffered injuries. The suggestion made on behalf of the accused is that Treasa had been inflicted a fatal injury by PW.1. The explanation that in the commotion which followed, Pws.1 and CRL.A.No.1053 & 1055 of 2001 :: 15 :: 2 had suffered certain injuries cannot, as such, be brushed aside. The evidence of Pws.1 and 2 which alone are available cannot be safely relied upon for the purpose of convicting the accused for the offences mentioned above. In my view, the prosecution has committed a grave error in not adducing the best evidence possible and in not making any attempt to explain how Treasa had met with her death in the incidents which happened on 16.9.1998. PW.1 has been convicted for culpable homicide not amounting to murder under Section 304 Part II of the IPC, for having caused the death of Tresa and the conviction has been confirmed by me in a separate judgment in Crl.A.No.935/01. 18. On an anxious re-appreciation of the evidence on record, I am of the view that the prosecution evidence cannot be relied on to sustain the conviction of the accused in this case. For all these reasons, these appeals are allowed. The conviction and sentence of the accused for the offences, CRL.A.No.1053 & 1055 of 2001 :: 16 :: with which they are charged, are set aside and they are acquitted. The bail bonds executed by them shall stand cancelled. Fine amount, if any, remitted by them shall be refunded to them within three months from today. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge