IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 1920 of 2009() ------------------------------ CRA.238/2000 of ADDL. SESSIONS COURT, FAST TRACK (ADHOC)-II, TRIVANDRUM CC.870/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED 1 & 7 -------------------------------------- 1. RAMDAS, S/O.VELUKUTTY KARALY CHETTIKULANGARA VEEDU PARASSALA DESOM, PARASSALA VILLAGE THIRUVANANTHAPURAM. 2. BABU @ CHATHAN S/O.SURENDERAN PLAVILA PUTHEN VEEDU NEDUVELY, MURIYANKARA DESOM. BY ADV. SRI.G.SUDHEER SMT.M.JAYASREE RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, ALONG WITH CRL.R.P.No.1277/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.Nos.1277 of 2009 & 1920 of 2009 -------------------------------------- Dated this the 3rd day of July, 2009. ORDER Petitioners along with a few others faced trial in the court of learned Judicial First Class Magistrate-II, Neyyattinkara in C.C.No.870 of 1996 for offences punishable under Sections 143, 147, 148 and 332 read with Section 149 of the Indian Penal Code (for short, “the Code”). Accused Nos.5, 6, 9 and 11 to 13 were acquitted by learned magistrate. Case against accused Nos.4 and 10 was refilled. On account of death charge against accused No.8 abated. Accused Nos.1 to 3 and 7 were convicted and sentenced to undergo imprisonment for various periods. Appellate court confirmed their conviction and sentence and hence these revisions. Crl.R.P.No.1277 of 2009 is preferred by accused Nos.2 and 3 while Crl.R.P.No.1920 of 2009 is at the instance of accused Nos.1 and 7. It is contended by learned counsel that conviction of petitioners cannot be sustained as there is no sufficient evidence. 2. Case is that on 22.8.1995 at about 2.15 p.m. PWs 1, 2 and 7 and CW4 who are police officials of Parassala police station had come to the place of occurrence to arrest accused No.7 who was involved in Crime No.266 of 1995 of that station. They arrested accused No.7 but petitioners and other accused, with the common object of rescuing accused No.7 from the lawful custody of Crl.R.P.No.1277 & 1920/2009 2 police officials formed unlawful assembly, committed rioting armed with stick and stones and caused hurt to PWs 1, 2 and 7 and CW4 beating with sticks and pelting stones. PWs 1 to 3 and 7, police officials gave evidence regarding the alleged incident. PW8 is an independent witness but he did not support the prosecution. Ext.P1 is the first information statement given by PW2. Ext.P1(a) is the body note of PW2 attached to that statement where there is reference to some injury allegedly suffered by PW2. Prosecution did not produce medical records to prove the injury allegedly suffered by PWs 1, 2 and 7 or CW4. 3. So far as the alleged attempt of PWs 1, 2 and 7 and CW4 to arrest accused No.7 is concerned, no record relating to Crime No.266 of 1995 is produced. It is not clear what if any was the offence attributed to accused No.7 in Crime No.266 of 1995 and whether the offences alleged were of such a nature that the police could arrest accused No.7 without a warrant. There is thus no evidence to show that the police officers concerned were entitled to lawfully arrest accused No.7 for any alleged involvement in Crime No.266 of 1995. If that be so, charge under Section 332 of the Code cannot stand against these petitioners. 4. Then the question arose whether petitioners along with others had formed unlawful assembly with the common object and voluntarily caused hurt Crl.R.P.No.1277 & 1920/2009 3 to the police officials as alleged. Learned counsel submits that if the police were not entitled to arrest accused No.7 in Crime No.266 of 1995 their attempt to arrest accused No.7 should be treated as illegal which could be resisted. If the arrest was not lawful, certainly accused No.7 had the right to resist that by using reasonable force. But under the guise of such resistance one cannot attack the police officials. 5 . There is substance in the contention that the injuries allegedly suffered by the prosecution witnesses are not proved properly. I do not forget that in Ext.P1(a) there is reference to some injuries said to be suffered by PW2. Prosecution could have produced the medical evidence to prove the injuries, if any suffered. That has not been done. 6. I also find that there is no proper identification of the assailants in the box, in the course of trial by PWs 1 to 3 and 7. In their chief examination they merely referred the assailants by names but did not identify anybody standing in the dock as the said persons. In cross examination it was suggested that accused have not done anything as alleged which ofcourse they denied. Reference to the accused persons came only in that way. But that did not mean that the persons referred to by the witnesses are any of the petitioners. There is no proper identification of petitioners as the assailants. As such conviction of accused Nos.1 to 3 and 7 who are petitioners before me cannot be sustained Crl.R.P.No.1277 & 1920/2009 4 and they are entitled to an acquittal. Resultantly these revisions succeed. Conviction and sentence imposed on petitioners/accused Nos.1 to 3 and 7 are set aside and they are acquitted of the charges against them. Bail bonds are cancelled. THOMAS P.JOSEPH, Judge. cks