IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 Crl.Rev.Pet.No. 2130 of 2003 ----------------------------------------------- CRA.428/2000 of ADDL. SESSIONS COURT (ADHOC-II), KOZHIKODE SC.268/1999 of ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONERS/ACCUSED: 1. SANTHOSH, S/O LAKSHMANAN, THEKKARAKAM PARAMBA, VELLAYIL, KOZHIKODE. 2. DEVIDASAN, S/O K.P.BHARATHAN, KALLUVEETTIL PURAIL, DO. DO. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.C.S.SUNIL RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2130 of 2003 -------------------------- ORDER Petitioners are accused 1 and 2 in S.C.No. 428/2000 on the file of Assistant Sessions Court, Kozhikode. They were convicted and sentenced for the offences under Sections 148, 153A, 324, 326 and 307 of Indian Penal Code, Accused 3 to 9 were acquitted of all the offences. Petitioners were also acquitted of the offences under Sections 143, 147 and 149 of Indian Penal Code. Petitioners challenged the conviction and sentence before Sessions Court, Kozhikode in Crl.A.No.428/2000. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction, but modified the sentence for the offence under Section 153A of Indian Penal Code. This revision is filed challenging the conviction and sentence. 2. Prosecution case is that the nine accused formed themselves into an unlawful assembly on CRRP 2130/03 2 22.2.1996 at about 10 p.m., in furtherance of their common object to cause death of PWs 1 and 2 and also to inflict grievous hurt, as they belong to Muslim community and because of communal hatred and in furtherance of their common object, the nine accused attacked PWs 1 and 2 while they were returning to their house after closing their shop and caused grievous hurt and thereby, the accused committed offences under Sections 143, 147, 148, 153A, 324, 326 and 307 read with Section 149 of Indian Penal Code. 3. All the accused pleaded not guilty. Prosecution examined twelve witnesses and marked nineteen exhibits and identified five material objects. Though, after closing the prosecution evidence and questioning them under Section 313 of Code of Criminal procedure, petitioners were directed to enter on their defence and adduce evidence, they did not adduce any evidence. CRRP 2130/03 3 4. Learned Assistant Sessions Judge, accepting the evidence of PWs 1 and 2, the injured, who are brothers and PW3, their father and PW5, the doctor and Exhibits P2 and P3 wound certificates, convicted the petitioners and acquitted accused 3 to 9 holding that PWs 1 to 3 did not identify them. Learned Additional Sessions Judge, on re- appreciation of evidence, accepted the evidence of PWs 1 to 3, overruling the objection raised by the petitioners in accepting the evidence of PWs 1 to 3 and confirmed the conviction. 5. At the outset, it is to be noted that neither the trial court nor the appellate court had appreciated the evidence in the proper perspective in the light of the settled legal position. The trial court acquitted accused 3 to 9 of all the offences and petitioners for the offences under Sections 143, 147, and 149 of Indian Penal Code finding that PWs 1 to 3, the injured and the eye witness, relied upon by the learned Assistant CRRP 2130/03 4 Sessions Judge, did not identify accused 3 to 9 as members of the unlawful assembly. Evidence of PWs 1 to 3 is to the effect that a group of persons comprising ten or more attacked PWs 1 and 2 and inflicted injuries. Learned Assistant Sessions Judge should have first gone into the question whether there was an unlawful assembly and should have then considered the question whether accused are members of that unlawful assembly. There is no independent consideration on these questions. Even if there was an unlawful assembly of more than five persons and many of the accused are not identified as members of that unlawful assembly, they could be acquitted only on the ground that they were not proved to be members of the unlawful assembly and not on the ground that there was no unlawful assembly. But, without a finding that there was no unlawful assembly, there cannot be an acquittal of the offences under Sections 143, 147 and 149 of Indian Penal Code, as has been done by the learned CRRP 2130/03 5 Assistant Sessions Judge. Unfortunately, State has not challenged the acquittal of accused 3 to 9 of all the offences as well as the acquittal of accused 1 and 2 of the offences under Sections 143, 147 and 149 of Indian Penal Code. It has become final. In spite of the fact that there was no conviction with the aid of Section 149 of Indian Penal Code by the trial court, learned Additional Sessions Judge found that learned Assistant Sessions Judge convicted the petitioners with the aid of Section 149 of Indian Penal Code and confirmed the conviction. Per se, the finding is illegal. When the trial court acquitted petitioners of the offences under Sections 143, 147 and 149 of Indian Penal Code, learned Additional Sessions Judge, in an appeal filed by the accused, cannot find that trial court had convicted them for the offences under Sections 148, 153A, 324, 326 and 307 of Indian Penal Code with the aid of Section 149 of Indian Penal Code. It shows that learned Additional CRRP 2130/03 6 Sessions Judge also did not grab the question in the proper perspective. 6. Learned counsel appearing for the petitioners argued that learned Assistant Sessions Judge and learned Additional Sessions Judge erred in finding that petitioners were identified by PWs 1 to 3 at the time of the incident. It was argued that neither in Exhibit P1 F.I. Statement nor in the course of their evidence from the witness box, PWs 1 to 3 disclosed that they identified the petitioners, as persons having acquaintance with them or that they were identified with the aid of any light. It is pointed out that when the incident took place at about 10 p.m., even if the scene mahazar shows that there was electric light twenty five metres to the east of scene of occurrence and twenty metres to the west of scene of occurrence, none of them had given evidence that those electric bulbs or tubes were burning so as to enable PWs 1 to 3 to see and identify the petitioners and CRRP 2130/03 7 therefore, courts below should not have found that there was light and PWs 1 to 3 identified the petitioners. 7. Learned counsel relied on the decisions of the Apex Court in Bollavaram Pedda Narsi Reddy v. State of Andhra Pradesh ((1991) 3 SCC 434), Shrishti Narain Jha v. Bindeshwar Jha ((2009) 6 SCC 457) and Arokia Thomas v. State of T.N. ((2006) 10 SCC 542) in support of his submission. Learned counsel also pointed out that evidence of PW1 establishes that on the night of 22.6.1996 itself, police had taken statements of PWs 1 and 2 and in such circumstances, Exhibit P1 cannot be the first information of the incident. It is pointed out that evidence of PW9, the Investigating Officer, shows that he had also reached the scene of occurrence on that night, but deposed that he did not see any person at the scene. It was submitted that it is clear that the first information received by the police was suppressed and even Exhibit P6 FIR CRRP 2130/03 8 reached the court only after a delay of fifteen hours, giving ample time to the Investigating Officer to manipulate the evidence. It was argued that as PWs 1 and 2 did not disclose the names of the assailants to PW5, the doctor, which was recorded on the same night, PWs 1 and 2 would not have stated the names of the petitioners and that is why that statement is suppressed and Exhibit P1 F.I. Statement was recorded on the next day and in such circumstances, the prosecution case should not have been accepted by the courts below. Reliance was placed on the decision of this Court in Peethambaran v. State of Kerala (1998 (1) KLT 602) and decisions of the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) and State of Kerala v. Aboobacker (2006 (4) KLT SN Page 33) and argued that the materials to attract an offence under Section 153A of Indian Penal Code were not put to the petitioners when they were questioned under Section 313 of Code of CRRP 2130/03 9 Criminal Procedure and therefore, those materials should not have been used against them. Learned counsel also argued that evidence of PW1 is contradictory to the evidence of PW2. Evidence of PWs 1 and 2, if taken together, contradicts the medical evidence of PW5 and Exhibits P2 and P3 wound certificates. It was pointed out that though Exhibits P14 and P15, the discharge certificates were marked, they were marked through the Investigating Officer and the doctors, who treated PWs 1 and 2, were not examined and the gravity of the injuries is not in evidence. In the absence of any evidence of the doctors, Exhibits P14 and P15 discharge certificates cannot be relied on and therefore, conviction for the offence under Section 326 of Indian Penal Code is also not sustainable. Learned counsel argued that when the nature of the injuries sustained by PWs 1 and 2 is not established and there is no evidence to prove that petitioners had an intention to cause death of PWs CRRP 2130/03 10 1 and 2, conviction for the offence under Section 307 of Indian Penal Code is also not sustainable. 8. PW5, the doctor, examined PW2 at 11 p.m. and prepared Exhibit P3 wound certificate. The doctor examined PW1 at 11.05 p.m. and prepared Exhibit P2 wound certificate. Exhibits P2 and P3 wound certificates with the evidence of PW5 establish that PWs 1 and 2 were referred to the Medical College Hospital, Kozhikode on the same day. Exhibit P1 F.I. Statement of PW1 was recorded while he was being treated in the Medical College Hospital as an inpatient. Though Exhibits P14 and P15 discharge certificates were produced, they were not even formally proved. Therefore, in the absence of any medical records to show the details of the treatment of PWs 1 and 2 at the Medical College Hospital, it is not possible to decide the nature of the injuries, except what is recorded in Exhibits P2 and P3 wound certificates. Exhibits P2 and P3 wound certificates show that when PWs 1 and CRRP 2130/03 11 2 were examined by the doctor, both of them disclosed that they sustained injuries at about 10 p.m. on the road when they were attacked by a group of people. Though PWs 1 and 2 deposed that they had named all the assailants to the doctor when Exhibits P2 and P3 were prepared, Exhibits P2 and P3 did not support their version. PW5, the doctor, denied that case. In Exhibits P2 and P3 wound certificates the doctor had recorded the alleged cause of injuries as stated by the injured. Hence, it is to be taken that when PWs 1 and 2 were examined by the doctor within one hour of the incident, they did not disclose the names of any of the assailants. When Exhibit P1 F.I. Statement of PW1 was recorded, PW1 had no case that all the 10- 15 persons, who allegedly attacked him, were known to him previously. It only shows that out of those assailants, he could name Santhosh, the first petitioner and Devidasan, the second petitioner. As stated earlier, there is no whisper in Exhibit P1 CRRP 2130/03 12 F.I. Statement that even according to the petitioners, who were named, were previously known to him. When PW1 was examined, though he named the petitioners and stated that all the accused were there when he was attacked, he did not name accused 3 to 9. Even though PW1 named petitioners as has been done in Exhibit P1 F.I. Statement, he did not identify them, particularly, in chief examination. He has only identified the first petitioner by naming him and second petitioner as the person who inflicted the injuries with a sword. Even then, PW1 did not name the second petitioner. 9. There is force in the submission of the learned counsel appearing for the petitioners that the PW1 had no acquaintance with the second petitioner. Same is the case with PWs 2 and 3. PW2 had named the petitioners. So also, PW3. But none of them named or identified the remaining seven accused. Though PW2 also identified the first petitioner from the witness box, he did not CRRP 2130/03 13 identify the second petitioner. The question is when there is no case for PWs 1 and 3 from the witness box that they had previous acquaintance with the petitioners and no evidence was let in based on what data, they identified the petitioners, their identification from the witness box casts serious doubt regarding the acceptability of the evidence. There is no case for PWs 1 to 3 that they identified the petitioners by hearing their voice or that their voice was familiar to PWs 1 to 3. Therefore, when there is no evidence to prove that there was sufficient light at the scene of occurrence to enable PWs 1 to 3 to identify the petitioners, it is difficult to accept the evidence of PWs 1 to 3 regarding the identity of the petitioners, as they had seen them on that night. 10. Evidence of PWs 1 to 3 establishes that after closing their shop at the market, PWs 1 and 2 were returning to their house, after covering the road and they turned through the lane to reach CRRP 2130/03 14 their house. The incident occurred twenty five metres to the west of the point from where the footpath emanates from Vellayil road. Though Exhibit P5 plan and Exhibit P7 scene mahazar show that there was an electric post having tube light twenty five metres to the east of the scene of occurrence, at the point where the footpath begins from Vellayil road and there is another electric bulb twenty metres to the west of the scene of occurrence on the footpath, there is no evidence either by the prosecution witnesses or by the Investigating Officer that those lights were lightening on that particular night so as to enable PWs 1 to 3 to identify the culprits. In the absence of any evidence to the effect that there was sufficient light from the electric posts or from any other source, when the incident took place at 10 p.m., it is difficult to accept the identification made by PWs 1 to 3, especially when, there is no evidence to prove previous acquaintance CRRP 2130/03 15 for PWs 1 to 3 with the petitioners. In any case, it casts sufficient doubt regarding the correctness of the version of PWs 1 to 3 regarding their identity. 11. Moreover, if we are to believe the evidence of PWs 1 and 2, PW1 was walking in front followed by PW2. The distance was about four metres. While they were walking along the pathway, which runs east-west and starts from the eastern border of Vellayil Road, about 10-15 persons, armed with deadly weapons like sword, attacked PW2. The evidence is that PW1 was walking in front and PW2 behind PW1. According to PW1, when he looked back, he found PW2 being attacked with a sword by the second petitioner. If we are to believe the evidence of PW1, by the time he rushed to PW2, PW2 had sustained two injuries on his head. According to PW1, when he offered help to PW2, first petitioner attacked him with a sword and inflicted injuries. According to PW1, second petitioner CRRP 2130/03 16 inflicted two injuries on the head of PW2 and first petitioner inflicted three injuries on PW1. PW2, the injured, also deposed that he sustained two injuries from the hands of the petitioners. When the case of PW1 is that all the injuries sustained by PW2 were inflicted by the second petitioner, PW2 has a different case. According to PW2, he sustained the injuries first from the hands of the second petitioner and thereafter from the hands of the first petitioner. But, Exhibit P3 wound certificate shows that PW2 sustained only an incised wound 8 x 1 x .5 cm on the back of scalp. According to PW1, PW2 sustained two injuries on the head, one on the back and the other on the right side. But the evidence of PW5 with Exhibits P2 and P3 wound certificates show that the said evidence is not trustworthy. 12. According to PW1, when he offered help to PW2 and rushed there, first petitioner inflicted three injuries on him with a sword. Evidence of PW5 CRRP 2130/03 17 with Exhibit P2 wound certificate shows that PW1 sustained an incised wound 7 x 1 x 1 cm on the front thigh, another lacerated wound 2 x 1 x .5 cm on the right thumb and ab abrasion 5 x 5 cm on the back of right forearm. The injuries could not have been inflicted with a sword as deposed by PW1. Though an incised wound could be caused by using a sword, the other injuries could not have been caused by the sword, which casts doubt on the version of PW1 as he has no case that any other person had been there. In such circumstances, when the medical evidence does not support the prosecution case, learned Assistant Sessions Judge or the learned Additional Sessions Judge should not have accepted the prosecution case to enter a conviction. 13. It is seen that petitioners were not even properly questioned under Section 313 of Code of Criminal Procedure. Learned Assistant Sessions Judge put an omnibus question to the petitioners CRRP 2130/03 18 summarising the evidence of each witness and not the particular point which was spoken to by the witness against the petitioners, which are to be used against the accused. As held by the Division Bench of this Court in Aboobacker's case (supra) and the Apex Court in Sharad's case (supra), the courts below should not have used the materials, which were not put to the accused, against the petitioners. Though PW3 deposed that he had reached the scene of occurrence and given evidence as an eye witness, it cannot be believed that PW3 had any occasion to witness the incident. Evidence of PW3 shows that his house is situated ten metres away from Vellayil Road and to enter the footpath, he has to cover ten metres. The scene of occurrence is twenty five metres to the west of Vellayil Road. According to PW3, he was inside the house and hearing the sound, he rushed to the spot. PW3 deposed that he did not rush to the spot on identifying the sound of his children PW1 or PW2. CRRP 2130/03 19 In such circumstances, even if it is to be believed that PW3 rushed to the spot on hearing the sound, by the time PW3 reached there, the entire incident would have been over, considering the evidence of PWs 1 and 2 with regard to duration of the incident. When the entire evidence is appreciated in the proper perspective, it is clear that Exhibit P1 is not the first information statement. Evidence of PW1 shows that another first information statement was recorded on the same night. That statement has not seen the light of the day. The fact that nothing was disclosed in Exhibit P1 F.I. Statement with regard to availability of light, the failure of PWs 1 to 3 to give evidence that there was sufficient light to enable them to identify the assailants on that night, non- mentioning of the names of the petitioners to the doctor and the material contradictions in the evidence of PWs 1 and 2, cast genuine doubt on the correctness of the prosecution case. If that be so, CRRP 2130/03 20 petitioners are at least entitled to get the benefit of reasonable doubt. Conviction is, therefore, not sustainable. Revision is allowed. Conviction of the petitioners for the offences under Sections 148, 153A, 324, 326 and 307 of Indian Penal Code in C.C. No.268/1999 by the Assistant Sessions Judge, as confirmed by the Additional Sessions Judge in Crl.A.No.428/2000, is set aside. Petitioners are found not guilty of the offences. They are acquitted. The bail bonds executed by them stand cancelled. 28th July, 2010 (M.Sasidharan Nambiar, Judge) tkv