“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 CRL.A.No. 876 of 2002() ----------------------- CC.384/1995 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... APPELLANT(S): COMPLAINANT N.P.PRATHAP KUMAR, S/O. RAMUTTY, KADEKKANARI HOUSE, P.O. CHEVARAMBALAM, KOZHIKODE BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ACCUSED AND STATE 1. RAMADAS, SUB INSPECTOR OF POLICE, MAVOOR, KOZHIKODE. 2. RAMACHANDRAN, ASSISTANT SUB INSPECTOR OF POLICE, MEDICAL COLLEGE, KOZHIKODE 3. KUNHAN, ADDL. SUB INSPECTOR OF POLICE, MEDICAL COLLEGE, KOZHIKODE 4. DASAN, ADDL. SUB INSPECTOR OF POLICE, NADAKKAVU, KOZHIKODE 5. ABDULLA KOYA,A.R.P.C. 5826, A.R.CAMP, MALOOR KUNNU, KOZHIKODE 6. VILOJAMAN, A.R.P.C 4545, A.R.CAMP, MALOOR KUNNU, KOZHIKODE 7. RAJAN, A.R.P.C. 4566, A.R.CAMP, MALOOR KUNNU, KOZHIKODE 8. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA SRI.P.S.SREEDHARAN PILLAI FOR R3, 5, 6 & 7 SRI.K.B.SAJEESH FOR R3, 5, 6 & 7 SRI.P.GOPINATH FOR R3, 5, 6 & 7 SRI.C.S.SUNIL FOR R3, 5, 6 & 7 SRI.P.R.SREEJITH FOR R3, 5, 6 & 7 SRI.T.G.RAJENDRAN FOR R1,2 & 4 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. .................................................... Crl.Appeal.No.876 of 2002 ..................................................... Dated, 23rd day of September, 2009 JUDGMENT In this appeal filed under Section 378(3) Cr.P.C, the complainant in C.C.No.384 of 1995 on the file of the J.F.C.M.-I, Kozhikode challenges the judgment dated 29.9.2001 passed by that court acquitting the 7 accused persons of offences punishable under Sections 143,147,148,341,323,324 and 326 read with 149 IPC. 2. In the private complaint filed by the appellant before the court below, he had prosecuted 8 accused persons all of whom are Police officers for the aforementioned offences. 3. The case of the complainant can be summarised as follows:- The complainant is a member of a students' organisation by name Students Federation of India (S.F.I. for short). During the year 1994, the SFI had taken a decision to protest against the wrong Education Policy adopted by the then Government in power by organising Crl.Appl. No. 876 of 2002 2 protest meetings and demonstrations throughout the State. As part of their resolution, the complainant along with his friends had decided to stage a demonstration in protest against the Education Minister and show black flags on 18-11-1994 when Sri. E.T. Mohammed Basheer, the Education Minister would come to inaugurate a seminar against narcotics in the Medical College auditorium at Kozhikode. Accordingly, the complainant and his friends took position in front of the main gate of the Medical College much before the arrival of the Minister. A full contingent of about 150 policemen armed with lathis under the leadership of the Ist accused (Bhaskara Kurup), Assistant Commissioner of Police, Kozhikode were already stationed near the main gate. At about 5.15 p.m. when the car carrying the Education Minister came in front of the gate, the complainant and his friends shouted slogans against the Minister and flaunted the black flags in their hands in a peaceful and disciplined manner. At that time, A1 (Bhaskara Kurup) who was the Assistant Commissioner of Police, Kozhikode in charge of the area gave a command to his subordinate Police Officers (who are accused Nos. 2 to 8) to thrash the complainant and others by exhorting them to flog every one of them and set them right. (“എലറനയ അടച ശരയനട”). The accused persons had formed an unlawful assembly in furtherance of their common object Crl.Appl. No. 876 of 2002 3 of causing grievous hurt to the complainant and others. Obeying the orders of A1, the rest of the accused officers mercilessly beat the complainant and other SFI students with lathis and kicked them. Eventhough the injured students as well as the on lookers had implored to the accused police officers to stop beating the protestors, the unrelenting policemen continued their beatings resulting in the complainant, his friends K.P. Prakashan, Ikkmath, Suresh, Azad, Haneefa etc. sustaining grave injuries. After beating the S.F.I. students black and blue, they were thrown into the police van. All the accused officers also got into the van. While inside the van A3 assaulted Suresh with a stick and A1 tortured Azad and Musafar Ahmed by beating and poking with a stick. They were then taken in the van to the police station. After reaching the Police Station, they were detained in the Police Station for about 45 minutes. The injured SFI workers were then taken to the Medical College Hospital for treatment. They were admitted there. The complainant has sustained a grievous hurt to his right eye. The complainant and his companions were beaten up and subjected to corporal torture without any provocation whatsoever. The accused have thereby committed offences punishable under Sections 143,148,323,324 and 326 read with 149 IPC. It is understood that in order to escape from their vandalism, a false case has been registered by the police against the complainant and his comrades. Crl.Appl. No. 876 of 2002 4 4. After recording the sworn statement of the complainant and his witnesses, the learned Magistrate (J.F.C.M-I, Kozhikode) took cognizance of the offences against all the 8 accused persons. Upon receipt of summons all the 8 accused persons appeared before the Magistrate. The 1st accused namely Bhaskara Kurup, who was the Assistant Commissioner of Police, Kozhikode filed C.M.P No.5331 of 1997 seeking to discharge him on the ground that sanction for prosecuting him under Section 197 Cr.P.C had not been obtained. The said application was dismissed by the learned Magistrate. Thereupon A1 took up the matter in revision before the Sessions Court, Kozhikode by filing Crl.R.P.No.27 of 1998. The said revision was allowed by the learned Sessions Judge and the case against A1 was quashed and A1 was discharged. The persons who stood trial before the Magistrate thereafter was only the remaining 7 Police Officers who were A2 to A8. 5. A Charge was framed against A2 to A8 for the aforementioned offences on 26.5.2000. On A2 to A8 pleading not guilty to the charge framed against them for the aforementioned offences, the appellant was permitted to adduce evidence in Crl.Appl. No. 876 of 2002 5 support of his case. The prosecution altogether examined 8 witnesses as P.Ws 1 to 8 and got marked 9 documents as Exts. P1 and P2(a) to P2(g). 6. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. 7. The 2nd accused, Ramadas, who was the S.I.of Police, Mavoor made the following statement before the court:- On 18.11.1994 at about 5.15 p.m. the then Education Minister, Sri.E.T.Mohammed Basheer came to the Medical College for attending a function at Mavoor side. When the Minister's vehicle came, the SFI and DYFI workers suddenly jumped in front of the vehicle of the Minister and tried to attack the Minister. A1, Assistant Commissioner of Police asked the agitators to disperse peaceably forthwith. But the protestors did not pay any heed to his request. So, in order to protect the Minister, the Assistant Commissioner directed the policemen to scare away the SFI workers. Accordingly, the policemen Crl.Appl. No. 876 of 2002 6 attempted to scare the agitators away. But several of them remained there and attempted to assault the Minister. Thereupon, as per the directions of the Assistant Commissioner, the agitators were removed to the Police Van and taken to the Medical College Police Station. He filed a report at the Police Station to the effect that those persons had wrongfully restrained the Minister and had attempted to assault the Minister. On the basis of that report the Medical College Police had registered Crime No.245 of 1994 against 15 persons. After completing investigation, the Medical College Police had laid charge against the aforesaid 15 persons. However, the accused in that case using their political influence got the said case withdrawn and the court had removed the case from its files. 8. The 4th accused namely Kunhan who was the Additional S.I.of Police Medical College Police Station, had the following to state before the court:- During the period of occurrence, in protest against the Education Policy of the then Government, the DYFI and SFI workers called for a demonstration and to cause blockades against the Minister on the road. On 18.11.1994, Crl.Appl. No. 876 of 2002 7 Sri.E.T.Mohammed Basheer, the then Education Minister was to attend the Medical College Hospital for an Anti- narcotic seminar. There were wall posters showing that the Minister will be blocked on his way. In the light of the tense situation, the Assistant Commissioner of Police had given directions to the police to give adequate protection to the Minister. Pursuant to the said direction, under the leadership of Shri.Bhaskara Kurup, the Assistant Commissioner of Police about 150 police men were posted near the Medical College Hospital. At about 5.15 p.m the Minister's car reached near the Medical College Hospital. The 4th accused was on duty in front of Sri.Krishna Hospital near the Medical College Hospital. When the Minister's car came he saw people running. He then went in front of the Medical College Police Station. On reaching there he found about 10 to 15 persons in front of the Minister's car which was blocked. The Assistant Commissioner ordered the removal of those persons. They were directed to get into the Police van. The 4th accused along with their policemen took the agitators into the van and they were taken to the Police Station. He had not seen anybody beating the agitators. Crl.Appl. No. 876 of 2002 8 9. The rest of the accused persons adopted the versions given by A2. When called upon to enter on their defence, the accused examined the Head Constable of Medical College Police Station as DW1 to prove that the medical college Police had registered a case as Crime No.45/1994 against 15 persons including the complainant herein. According to DW1, that case was charge sheeted and taken on file as C.C.No.712 of 1995. DW2 was the Minister whose car was blocked and who was allegedly assaulted by the protestors. 10. The learned Magistrate, after trial as per judgment dated 29.9.2001 found the accused Nos.2 to 8 not guilty of the offences and acquitted them of the same. It is the said order of acquittal which is assailed in this appeal. 11. I heard Advocate Sri.P.V.Kunhikrishnan, the learned counsel appearing for the appellant/complainant, Advocate Sri.T.G.Rajendran, the learned counsel appearing for accused Nos.2,3 and 5 and Advocate Sri.P.S.Sreedharan Pillai the learned counsel appearing for Accused Nos.4 and 6 to 8. 12. Advocate Shri.P.V.Kunhikrishnan, the learned counsel appearing for the appellant made the following submissions Crl.Appl. No. 876 of 2002 9 before me in support of the appeal:- The complainant and his companions are all students who were protesting against the policy of the then Government in power to privatise the professional education in the State. They had only launched a peaceful agitation by waiving black flags as a mark of protest. PWs.1,3,4 and 6 are the injured witnesses including the complainant and Pws.2 and 7 are the independent eye witnesses to the occurrence. The court below has failed to note that the occurrence had more than one venue. The 1st part of the occurrence took place at the gate of the Medical College Hospital, Kozhikode. The 2nd part of the occurrence was inside the Police Van and the 3rd part of the occurrence was near the Medical College Police Station, where the complainant and the other injured persons were detained. PWs.1,3,4 and 6 have given evidence regarding the overt acts committed by the accused both in the 1st,2nd and 3rd part of the incident. The exhortation or command which proceeded from the 1st accused, Bhasara Kurup who was the Assistant Commissioner of Police was not to start a lathi charge but to beat up every one of the agitators. That was not a lawful direction to disperse an Crl.Appl. No. 876 of 2002 10 unlawful assembly, even if such an assembly had been formed by the agitators. Thereafter, the Policemen were on the rampage by indiscriminately beating up the agitators who had launched a peaceful demonstration to register their protest against the educational policy of the Government. Since the exhortation or command given by A1, Bhaskara Kurup was not a lawful command, accused Nos.2 to 8 do not enjoy the protection under Section 76 IPC as has been wrongly held by the trial court. The 1st accused did not even volunteer to give evidence to show that he had given a lawful command in the safety of the Minister. Under the Martial Law even when a soldier obeys the orders of a superior officer, if the order is obviously improbable or illegal, the soldier is not excused even though he may be put in the awkward predicament of choosing whether he will risk being shot by order of a Court Martial for not obeying the orders or being hanged by the criminal court for murder for obeying such orders. Obedience of an illegal order can only be used in mitigation of punishment (vide Chamanlal v. Emperor (AIR 1940 Lahore 210). It is true that even though the occurrence was on 18.11.1994, the private complaint Crl.Appl. No. 876 of 2002 11 was lodged before the Magistrate only on 20.2.1995. But then, the complainant had sustained grievous hurt and when he was taken to the hospital he was made to understand that it was recorded as a medico-legal case in the hospital records. If so, he had every reason to believe that the hospital authorities would give an intimation to the police. It was subsequently when he learned that there was no case registered by the Police that he finally lodged the complaint before the J.F.C.M-1, Kozhikode on 20.2.1995. Moreover, delay by itself cannot be taken as a ground to throw away the complaint, if, as a matter of fact, the allegations in the complaint are true. The defence has been trying to shift the place of occurrence. The court below has not given valid grounds as to why the complainant who is an advocate and injured as well, and the other eye witnesses could not be believed. The complainant and his friends were not having any weapons in their hands . But all the accused persons were having lathis as weapons in their hands. Their presence at the scene of occurrence is also not disputed. The medical evidence proved through PW5 and PW8 also tallies with the oral testimony of PWs.1 to 4, 6 and 7. The court below was, Crl.Appl. No. 876 of 2002 12 therefore, not justified in acquitting the accused. 13. I am afraid that I cannot agree with the above submissions made on behalf of the appellant. The apapellant examined as P.W.1 (Pratapkumar) is the complainant. His testimony in chief-examination is as follows:- The occurrence took place in front of Venad hotel which is on the side of the main gate of the Medical College. He was then a member of the State Committee Secretariat of the S.F.I. They had decided to register their protest against the educational policy of the then Government. They proceeded to the place of occurrence for the said purpose. The occurrence took place at about 5.15 p.m. on 18-11-1994. They had reached the place for showing their protest by waiving flags and shouting slogans against the Education Minister who was expected to come there for inaugurating an anti narcotic campaign. There were 15 persons including the complainant. Under the leadership of the Assistant Commissioner Bhaskara Kurup there were about 150 policemen including the accused persons posted near the Medical College. The Minister reached there at about 5.15 p,.m. piloted by police jeeps. Seeing the Minister's Car P.W.1 waived the black flag in his hand and shouted slogans. Besides him, Mussaffar Ahammed, Suresh, Haneefa, Ikmath, Crl.Appl. No. 876 of 2002 13 Prakasan, Azad and others were also in his company. When they shouted slogans the Assistant commissioner Bhaskara Kurup who was standing on the northern side of the road commanded the policemen to set right everybody by beating them up. The accused persons then assaulted P.W.1 and others with lathis etc. 14. During the cross-examination, P.W.1 stated inter alia follows:- The Ministry which was ruling the State was the U.D.F. consisting of Congress party and the Muslim League. E.T. Muhammed Bhasheer was a Minister of the U.D.F. At the time of occurrence the complainant had ceased to be a student and had enrolled as an Advocate. S.F.I. is the students ' union of the Students Federation of India. He does not remember whether he was an accused in C.C. No. 712 of 1995. That case is not pending now. He does not know at whose instance that case was closed by the police. There were 15 accused persons including him in that case. He does not know what is the police charge in that case. He also does not know the offences which are alleged against him and his co-accused. That case was withdrawn . The Assistant Public Prosecutor in-charge of the case might have filed a report before the Court presumably in the belief that the allegations against him and others were not true. S.F.I. is not the Students' wing of the Marxist Party. It is an independent Crl.Appl. No. 876 of 2002 14 organization which has only philosophical connection with the Marxist party. The application for withdrawal of C.C. No. 712 of 1995 was filed at a time when the State was ruled by the L.D.F. of which Marxist party was the main coalition party. His organization was against the commercialisation of education. He did not lodge any complaint before the police since he believed that the police under the then Government would not take any case against the accused policemen. He did not petition the superior police officers as well. It was about two years after the occurrence that he lodged the complaint before the Court. Eventhough he told the Magistrate who had come to the hospital to remand him that he knows the names of the police officers who had beaten him he did not mention their names to the Magistrate. He had mentioned the name of Bhaskara Kurup alone. All that he told the Magistrate was that the policemen had beaten him. He did not reveal the names of the police officers or anybody else. He is a Marxist party worker who became a member of that party after 1994. He had participated in the protest march at Pathiyappaa when Minister M.V. Raghavan had visited that place. Besides himself, others were injured in that occurrence. Police had registered a case against him. There were three or four other cases against him and they were all false cases. Their agitation was against the setting up Crl.Appl. No. 876 of 2002 15 of self financing colleges in the private sector. Untoward occurrences had taken place in the past due to the strikes by S.F.I. The firing at Koothuparamba was on account of the agitation by S.F.I. which was demanding that the Pariyaram Medical College should be taken over by the Government. That incident was after the present occurrence. A committee had been formed including the district leaders of the Marxist Party and the DYFI to help the S.F.I. in moving ahead with its agitations. There were more than 100 men in that committee. There was a document reduced into writing detailing the mode of agitation. He denies the suggestion that the said document contained statements to the effect that U.D.F. Ministers will be wrongfully restrained. The present agitation against the Minister was under the leadership of P.W.1. Their protest was throughout the length and breadth of the State. Decisions had been taken as to the mode of registering their protest. Posters had been exhibited in the neighbourhood of the Medical College regarding the agitation that was proposed to be conducted on that day. They reached the spot about one hour prior to the arrival of the Minister. He does not know whether the police contingent posted there was to ensure that there was no obstruction to the Minister's programme. All the other accused are subordinates of the first accused Assistant Commissioner. Eventhough he knew Crl.Appl. No. 876 of 2002 16 every one of those officers who had beaten him, what he had told the police and the doctor was merely that he was beaten by the police. He does not know whether on the date, time and place of occurrence, himself and his friends had formed themselves into an unlawful assembly and had restrained the Minister and had deterred the police in discharging their duties. The stand taken by P.W.1 that the SFI is not the students' wing of the C.P.I. (Marxist) can be taken only with a pinch of salt in the light of the decision in Kerala Students Union v. Sojan Francis - 2004 (2) KLT 378. 15. As mentioned earlier, the other injured witnesses were PWs 1, 3, 4 and 6. P.W.2 who belongs to Mattannur in Kannur District claims to have seen the occurrence. He was working as a watchman of the Samrakshan Kendra in the Medical College Hospital, on the date of occurrence. He has deposed about the command by A1 to beat up everyone of the agitators and thereafter the policemen assaulting P.W.1 and others. PW1 has stated that 5 - 10 students were taken inside the van and Bhaskara Kurup and another police officer also got inside the van. What the witness says is that thereafter he heard the cries from the van. But he did not see any of the Crl.Appl. No. 876 of 2002 17 police officers beating any of the detenues from inside the van. This witness did not inspire the confidence of the trial Judge. Same is the position with P.W.7 who claims to have been working as an Assistant in the Visrama Mandiram attached to the Medical College Hospital. This witness also admitted that he has no previous acquaintance with P.W.1 or any of the injured witnesses. But he named each and every one of them while narrating the occurrence. The learned Magistrate who had the unique advantage of seeing the witnesses and assessing their credibility was not inclined to accept the testimony of the prosecution witnesses as true and credible to hold that the case of the prosecution as narrated in the private complaint lodged by the appellant was true. Witnesses are the eyes and ears of the Court. The Court which sees the witnesses and hears the evidence is in a better position to assess the credibility of the evidence . Due weight must be given to the appreciation of evidence by the trial Court. (See State of Kerala v. Cheriyan - 1997 (2) KLT 196). The Court which has seen the witnesses depose has a great advantage over the appellate Judge who reads only the recorded evidence in cold print. (Vide Shivaji v. Crl.Appl. No. 876 of 2002 18 State of Maharashtra - AIR 1973 SC 2622). 16. The court below has acquitted the accused persons mainly for the reason that many of the prosecution witnesses were not trustworthy and also for the reason that even assuming that A2 to A8 had beaten P.W.1 and others, they were acting in obedience to the command given by the Assistant Commissioner of Police who was arrayed as the Ist accused and that the complaint was lodged belatedly and that the prosecution had not explained the inordinate delay in lodging the complaint. 17. From the evidence of P.W.1 as adverted to above it is clear that the organization to which he is a member had already taken a decision to register their protest against the educational policies of the then U.D.F. Government and had decided to set up a road block against the Education Minister who was scheduled to arrive in the Medical College Campus in the evening of 18-11-1994.