Kerala High Court
K.Nazirudheen vs State Of Kerala on 13 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
CRL.A NO. 473 OF 2015
AGAINST THE ORDER/JUDGMENT IN SC 81/2014 OF ADDITIONAL DISTRICT COURT &
SESSIONS COURT - I, KALPETTA
APPELLANTS/ACCUSED NOS.1, 2 AND 5:
1 K.NAZIRUDHEEN,
AGED 36 YEARS,
S/O.HUSSAIN, KAIPULLY HOUSE, HML ESTATE PADDI, MUNDAKAI,
VELLARMALA AMSOM.
2 VIJAYAKUMARAN P.,
AGED 40 YEARS,
S/O.PARAMESWARAN EZHUTHACHAN, PUTHAN HOUSE,
HML ESTATE PADDI, MUNDAKAI, VELLARMALA AMSOM.
3 SAM P.MATHEW,
AGED 40 YEARS,
S/O.MATHEW, PALARA HOUSE, EMILY, KALPETTA.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.K.S.MIZVER
SMT.K.M.RAMYA
SRI.P.K.RAKESH KUMAR
SRI.THOMAS CHAZHUKKARAN
SRI.M.M.VINOD KUMAR
RESPONDENTS/COMPLAINANT & FORMAL PARTY:
1 STATE OF KERALA,
TO BE REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 CIRCLE INSPECTOR OF POLICE,
KALPETTA.
R1 AND R2 BY SRI. SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT
ON 13.01.2022 DELIVERED THE FOLLOWING:
Crl.A.No.473/2015 2
ZIYAD RAHMAN A.A, J.
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Crl.Appeal.No.473 of 2015
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Dated this the 13th day of January, 2022
JUDGMENT
The appellants are accused Nos.1, 2 and 5 in S.C.No.81 of
2014 on the file of the Additional Sessions Court-I, Kalpetta.
The aforesaid Sessions Case arises from crime No.373 of 2011,
which was registered by Station House Officer, Meppadi Police
Station for the offences punishable under Sections 120B, 143,
147, 148, 324, 326 and 307 read with Section 149 IPC.
2. The prosecution case in brief is as follows:
PW1 and his family are residing in a hut in a property
which was encroached by them in a reserved forest at Withgard
in Wayanad District. The encroachment was made by about 300
families under the leadership of Sri.Sam P. Mathew, the 5 th
accused herein, who is the leader of a political party named
CPI(ML). Later, some difference of opinion occurred between
the said Sam P.Mathew and some of the families of the
encroachers. Consequently, some of them including PW1 who
were originally members of CPI(ML) resigned from the said
party and joined in a political party named Jantha Dal. On
account of the same, the 5th accused was having some animosity
with PW1, as he was under the impression that it was PW1 who
instigated others to leave the party. Presumably because of
this, there was consistent attack on the shed constructed by
PW1. On 19.12.2011 at about 9 am, while he was constructing
a new shed in the encroached land, the 5 th accused came there
and cautioned PW1 and instructed him not to construct any
shed in that property. Later, as PW1 continued with the
construction of the shed with the help of his wife PW2 and
neighbour PW4, accused Nos.2 to 4 and another came to the
spot, carrying dangerous weapons such as choppers and iron
pipes, inflicted cut injuries upon PW1 with chopper and also
beaten him with iron pipe. PW2 also sustained injury while she
intervened and attempted to protect PW1. Immediately, the
injured persons were taken to hospital from where First
Information Statement was recorded and case was registered.
After completing the investigation, police submitted charge
sheet against the accused 1 to 5 herein for the offences
mentioned above. The aforesaid case was taken on file as
C.P.No.40 of 2013 by the learned Magistrate and after
completing the committal proceedings, it was committed to
Principal Sessions Court, Kalpetta, from where it was taken on
file as S.C.No.81 of 2014.
3. In support of the prosecution case, 18 witnesses
were examined, Exts.P1 to P42 were marked and Material
Objects 1 to 12 were identified. After closure of the evidence,
accused were examined under Section 313 of Cr.P.C, by putting
incriminating materials brought out in evidence to them. All the
accused denied the said imputations and pleaded innocence of
all the allegations. It was stated by them that, the case itself
was falsely hoisted against them on the reason of political
rivalry.
4. After evaluating the materials brought out in
evidence, the learned Sessions Judge arrived at a finding that
accused Nos.3 and 4 are not guilty. However, A1 and A2 were
found guilty for the offences as mentioned above and they were
sentenced to undergo imprisonment for three months each
under Section 143 IPC, nine months under Section 147 IPC, two
years under Section 148 IPC, two years under Section 324 read
with 149 IPC, five years under Section 149 IPC, five years and
to pay a fine of Rs.10,000/- with default sentence of rigorous
imprisonment for one year under Section 326 read with 149 IPC
and they were sentenced to undergo rigorous imprisonment for
seven years and to pay a fine of Rs.10,000/- in default to
undergo rigorous imprisonment for one year under Section 307
read with 149 IPC. The 5th accused was also found guilty for the
offences and was sentenced to undergo imprisonment for two
years under Section 120B read with Section 324 IPC, rigorous
imprisonment for five years and a fine of Rs.10,000/- with
default sentence of rigorous imprisonment for one year under
Section 120B read with Section 326 IPC and also sentenced to
undergo rigorous imprisonment for seven years and to pay a
fine of Rs.10,000/- with default sentence of one year under
Section 120B read with Section 307 IPC. It was further ordered
that the substantive sentence shall run concurrently. The
present appeal is submitted by the aforesaid accused persons,
challenging their respective convictions and sentences.
5. Heard Sri.K.S.Madhusoodanan, learned counsel for
the appellants and Sri.Aravind V.Mathew, learned Public
Prosecutor for the State. The prosecution case is in connection
with the assault alleged to have been made by the accused 1 to
4 and another person on PW1 and PW2, by forming themselves
into an unlawful assembly. Exts.P20 and 21 are the medical
records evidencing the injuries sustained by the respective
witnesses. PW20 is the discharge certificate issued by the
Medical College hospital, Kozhikode wherein PW1 had
undergone treatment. Ext.P21 is the wound certificate issued
from the Medical College showing the injuries sustained by
PW2. The aforesaid documents were proved through the
evidence of PW16. According to PW16, PW1 sustained
following injuries:
(1) Extension tender cut injuries left wrist. (2) Tricept cut injury
Left arm (3) Multiple lacerated wound over body. It was also
stated by PW16 that multiple tender injuries would affect
functions of hand and it is grievous in nature. The injuries
sustained by PW2 are as follows:
(1)Fracture 2nd meta carpel bone right side.
(2) Multiple contusion over body.
As regard to the nature of injuries, it is stated that injuries
caused by as alleged. It is also stated that injuries were
grievous in nature. In P20 and P21, history of injury is stated to
be that occurred due to assault. The aforesaid documents
would suggest that the aforesaid witnesses have sustained
grievous hurt as established through Exts.P20 and P21 which
were proved by PW16 doctor. This leads us to the question as to
whether these injuries were sustained due to the assault
committed by the accused persons.
6. For establishing the offences alleged against the
accused persons the crucial evidence relied on by the
prosecution is that of PWs 1, 2 and 4. All the said witnesses are
eye witnesses, out of which PWs 1 and 2 are injured witnesses.
Ext.P19 FIR was registered on the basis of Ext.P1 First
Information Statement given by PW1 to PW15. The First
Information Report was recorded at 15.15 hours on 19.12.2011
while PW1 was undergoing treatment at Vythiri Taluk Hospital.
A perusal of Ext.P1 would reveal that in the encroached
property in Withgard around 300 families were residing. They
have encroached upon the land under the leadership of A5, who
is the leader of CPI(ML) and later some of the families including
PW1 had some difference of opinion with Sam P. Mathew which
lead them to leave CPI(ML). Later, some of them joined the
political party, Jantha Dal and A5 was nursing some grudge
against PW1 due to the same. For the past one week, there
were instances of pelting stones on the sheds of PW1. On
19.12.2011 morning, PW1 started to construct a shed in a
different property which was objected to by A5 and it resulted in
exchange of words between the parties. Later, at about, 1 pm
A1 and A2 along with two identifiable persons and one person
who cannot be identified, came to the place where PW1 was
constructing the shed and threatened to kill PW1. Thereafter,
they assaulted PW1 with chopper and inflicted cut injuries on all
over the body of PW1, by shouting and instigating each other to
cut and kill him. His wife Elsy, son Saneesh and neighbour
Bindu cried loudly. One of the accused assaulted his wife with
iron pipe. The reason for assault was stated to be the grudge
nursed by A5 for leaving the party.
7. While examined as PW1, he reiterated the aforesaid
statement with further details. Even though, in Ext.P1 it was
stated that all the accused persons have attacked PW1 with
chopper and inflicted injuries upon him, while examined as
PW1, there is a slight improvement. He has stated that A1
attacked him with iron rod. A2 and A4 also attacked. Initially,
he has stated that he sustained injury on his head first and
thereupon he was forced to sit on the ground. Later, he stated
that when the accused were about to hit him, he ran away. The
1st accused chased him and when he reached the property of
Pushpa, he was hit on his head. He could not ran thereafter. At
that time, accused Nos.1 to 4 assaulted him. He has stated that,
while he was running, A3 inflicted cut injuries on his leg. He
has stated that it is not possible to state as who inflicted the
injuries on his body by using a knife. He further stated that he
sustained cut injuries. His wife PW2 attempted to guard him
and tried to prevent the assault on PW1. During the course of
the same, PW2 was also attacked and she sustained fracture on
her fingers.
8. PW2 is the wife of PW1. The incident narrated by
PW2 was almost similar as narrated by PW1. However, there is
slight difference as to the person who had inflicted cut injury
upon PW1. She stated that it was the 1st accused who inflicted
cut injuries on the 1st accused. She also stated that while PW1
sustained first cut injury PW1 was on her lap. She denied the
suggestion that PW1 had fallen on ground after receiving the
cut injury. She also stated that A1, A3 and A4 had inflicted cut
injuries on the body of PW1. She also stated that two accused
persons were having choppers in their hands. On going though
the evidence of PW2, it can be seen that, even though, she
stated about the assault and had identified weapons including
the iron pipes which are MOs 5 to 7, she interchangeably used
the description of the said weapon as iron rod and iron pipe. In
evidence of PW1 also the said weapons were mentioned as iron
rod, even though in First Information Statement, the weapon
was described as iron pipe. PW2 further stated that A1 to A4
have came to the spot by wrapping the weapons in paper and
upon reaching there, they removed the wrapper and assaulted
PW1. PW4 is another witness. She is the neighbour of Pws 1
and 2. She was at the place of occurrence at the relevant time
as she was assisting PW1, in the construction of the shed. She
has narrated the incident more or less in similar manner as
explained by PWs1 and 2. She has stated that accused persons
came to the place of occurrence by keeping weapons wrapped
in paper. She stated that all the 4 accused persons had inflicted
cut injuries and also placed blows on PW1. She has stated that
all the accused persons were carrying sticks and choppers. It
was also stated that they were interchanging the weapons in
between. She had also stated that she blocked assault during
which the three accused hit her on her stomach with stick.
9. The learned counsel for the appellants specifically
relying upon the discrepancies in the evidence of aforesaid eye
witnesses and submits that the said discrepancies are serious in
nature which are fatal to the prosecution case. It is pointed out
that there is no clear evidence as to who has inflicted injuries
upon PWs 1 and 2. On examining the evidences of PW, 1, 2 and
4, it can be seen that, there are some discrepancies as to the
nature of assault made by the accused persons individually.
There is also some confusion with regard to the weapons used
by each accused persons. However, the aforesaid discrepancies
are not very serious in nature so as to doubt the veracity of the
prosecution case as revealed through the said witnesses. This
is particularly because, the discrepancies in the evidence
between those witnesses were in respect of the weapons used
by each accused persons and the particular injuries caused by
each accused persons. On the other hand, a common aspect,
which can be found in the evidence of these witnesses is that of
all of them clearly stated that all the accused persons have
inflicted injuries upon PW1 and PW2. In State of U.P. v.
M.K.Anthony [(1985) 1 SCC 505] in paragraph No.10 of the
said judgment, it was observed by the Honourable Supreme
Court as follows:
"10. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinise
the evidence more particularly keeping in view the
deficiencies, draw-backs and infirmities pointed out
in the evidence as a whole and evaluate them to
find out whether it is against the general tenor of
the evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case,
hyper-technical approach by taking sentences torn
out of context here or there from the evidence,
attaching importance to some technical error
committed by the investigating officer not going to
the : root of the matter would not ordinarily permit
rejection of the evidence as a whole. If the court
before whom the witness gives evidence had the
opportunity to form the opinion about the general
tenor of evidence given by the witness, the
appellate court which had not this benefit will have
to attach due weight to the appreciation of evidence
by the trial court and unless there are reasons
weighty and formidable it would not be proper to
reject the evidence on the ground of minor
variations or infirmities in the matter of trivial
details. Even honest and truthful witnesses may
differ in some details unrelated to the main incident
because power of observation, retention and
reproduction differ with individuals. Cross
examination is an unequal duel between a rustic
and refined lawyer. Having examined the evidence
of this witness, a friend and well-wisher of the
family carefully giving due weight to the comments
made by the learned Counsel for the respondent
and the reasons assigned to by the High Court for
rejecting his evidence simultaneously keeping in
view the appreciation of the evidence of this
witness by the trial court, we have no hesitation in
holding that the High Court was in error in
rejecting the testimony of witness Nair whose
evidence appears to us trustworthy and credible."
10. In Vijay Alias Chinee v. State of Madhya Pradesh
[(2010) 8 SCC 191], in paragraph No.23 the Honourable
Supreme Court observed as follows:
"23. It is settled proposition of law that even if
there are some omissions, contradictions and
discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution and
sifting the evidence to separate truth from untruth,
exaggeration and improvements, the court comes to
a conclusion as to whether the residuary evidence is
sufficient to convict the accused. Thus, an undue
importance should not be attached to omissions,
contradictions and discrepancies which do not go to
the heart of the matter and shake the basic version
of the prosecution witness. As the mental
capabilities of a human being cannot be expected to
be attuned to absorb all the details, minor
discrepancies are bound to occur in the statements
of witnesses (vide Sohrab & Anr. Vs. The State of
M.P. AIR 1972 SC 2020; Bharwada Bhogini Bhai
Hirji Bhai Vs. State of Gujarat AIR 1983 SC 753;
Prithu @ Prithi Chand & Anr. Vs. State of Himachal
Pradesh (2009) 11 SCC 588; and State of U.P. Vs.
Santosh Kumar & Ors. (2009) 9 SCC 626).
11. From the principles laid down by the Honourable
Supreme Court in the aforesaid judgments, it can be seen that,
mere discrepancies are not sufficient to discard the evidence of
the witnesses as such. If the appreciation of evidence of the
witnesses as a whole, reveal the ring of truth, it is sufficient to
establish the guilt of the accused. In this case, when we apply
the aforesaid principles, it can be seen that, PWs 1, 2 and 3
have clearly mentioned about the incident. The sequences of
events, right from the inception are consistent. The only
difference in their evidence is in relation to the manner in which
the assault was made by each of the accused persons
individually and the weapons used by them individually. When
the nature of incident as revealed through them is taken into
consideration as a whole, which was witnessed by them in a
tensed situation, it can be safely concluded that, it may not be
possible for each witnesses to observe with precision as to the
individual acts committed by each and every assailants. Certain
discrepancies are bound to occur in such circumstances and
such minor discrepancies indicates genuineness of the versions
and not the falsity in their depositions. In such circumstances, I
do not find any reason to accept the contention put forward by
the learned counsel for the petitioner that the evidence of PWs1,
2 and 4 are un-reliable. This is particularly because, the
evidence of PW2 and PW4 would reveal that, the assailants have
brought the weapons to the place of occurrence by wrapping
the same in paper. PW3 is the daughter of PW1 and 2 and her
evidence is crucial in this regard. She has stated that she saw
the accused persons just before the incident. She was going to
school at the relevant time and she had seen the accused
persons coming to the place with weapons covered in a paper.
The aforesaid evidence provides corroboration to the evidence
of PWs 2 and 3. In such circumstances, I do not think that the
aforesaid evidence are to be discarded.
12. Another contention put forward by the learned
counsel for the appellant is with regard to the identity of the
accused persons. The learned counsel by placing reliance upon
the judgment of this Court in Manu G. Rajan v. State of
Kerala [2021 (6) KLT 227], contended that in the absence of
specific identification of the accused persons who were in the
dock, benefit of doubt has to be given to the accused persons.
It is pointed out that in the aforesaid decision, it was held by
this Court that even if the accused persons were known to the
witnesses, individual identification of the accused in the dock is
mandatory. The aforesaid decision was rendered by a learned
single Judge of this Court by relying upon the judgment of a
Division Bench in Vayalali Girishan & Ors. V. State of Kerala
[2016 KHC 204]. In Vayalali Girishan's case in paragraph
No.43 a Division Bench of this Court observed as follows:
"43. Recalling the discussion with regard to the
presence, participation and fixation of identity of
the accused, we hold that the evidence of PW1 to 4
are convincing as regards the incident and there is
no reason to doubt their version as regards the
involvement of accused Nos.1, 2, 12 and 15. But we
are distressed to note that in the case of the other
accused, the learned Sessions Judge has adopted a
very callous approach. Undoubtedly, substantive
evidence is the identification of the accused by the
witness before the Court. But in the instant case,
the deposition of the witnesses only reveals that the
learned Sessions Judge has merely recorded the
rank number of the accused in the charge and no
effort is seen undertaken to certify in the
deposition, with exactitude and certainty, that the
person referred by witness as one of the members
of the unlawful assembly which perpetrated the
horrendous act is the person who was standing in
the dock. We are unable to discern for certain as to
whether the witness was referring to the particular
accused whose name finds a place in the charge or
to some other person. Obviously the witness will not
be aware of the rank number of the person standing
in the dock in the array of the accused. There is
absolutely no clue available from the deposition
either, as the Court has not recorded this aspect in
the evidence as to the manner in which the
particular accused was identified. The Apex Court
as well as this court, time and again, have reminded
the trial Courts, the importance of recording in the
deposition the most cardinal fact that the witness
has specifically identified the accused as the person
who was involved in the crime, so that the
complicity and presence of the accused at the scene
of crime could be fixed with exactitude. This is all
the more important in a case of this nature where
most of the accused are attempted to be roped in on
the reason that they were members of the unlawful
assembly and they had shared the common object.
Unfortunately, there is no specific endorsement in
the deposition of the eye witnesses that the accused
numbering 25 standing in the dock were identified
by the witness in any acceptable manner known to
law and the court was satisfied by the identification.
In other words, it does not appear from the
evidence that the accused was specifically pointed
out by their name or specific feature and an
endeavor was made by the Court to individually fix
each of the accused as being present at the scene of
crime so that their complicity as members of an
unlawful assembly in prosecution of the common
object could be fixed. We have to mention that the
identification of the accused in Court, which was
conducted in an omnibus and perfunctory manner,
cannot be held to be reliable to establish the
complicity of accused Nos.3 to 11 , 13, 14 & 16 to
25 and to hold them vicariously liable for the
offence u/s 302 r/w 149 of the IPC."
13. The observations in the aforesaid decisions is that,
witness may not be knowing the rank of the accused persons
and therefore, there must be specific identification of every
accused by witnesses. In this case, I am of the view that the
principles laid down therein are not applicable because of the
peculiar facts and circumstances of the case. It is also a
relevant factor to notice that lack of identification in the manner
as mentioned in the said decision by itself would not make the
evidence of the aforesaid witnesses invalid, but on the other
hand, it may indicate a circumstance, which may compel the
court to grant benefit of doubt to the accused persons.
However, this would indicate that, if there are other materials
showing the identity of the accused persons, such benefit of
doubt need not be given. While examining the facts of this case,
it can be seen that, PW1 had specifically named A1 and A2 in
the First Information Statement. He reiterated the same while
he was examined as PW1. PW2 has also stated that she knows
the said accused persons. In their deposition, it is seen
recorded that the accused persons were identified by the
witnesses by their name. When all these aspects are taken into
consideration, there cannot be any dispute or confusion with
regard to the identity of accused Nos.1 and 2. Evidence of
PWs1, 2 and 4, when read as whole, clearly indicate the identity
of the accused 1 and 2, and this is a crucial aspect which
supports the prosecution case. It is also to be noted in this
regard that, all the above witnesses have clearly stated that
they were workers of CPI(ML) and these witnesses were also
part of the said political party for some time. Therefore, the
question of lack of identity in respect of accused Nos.1 and 2
does not arise in this case, and I have no hesitation in rejecting
the contention of the learned counsel for the appellant in this
regard.
14. Next contention raised by the learned counsel for the
appellant is with regard to the application of Section 149 of IPC.
According to the learned counsel, since accused Nos.3 and 4
stand acquitted by the trial court, the minimum requirement of
five members for forming an unlawful assembly is no longer in
existence. In the light of the above, Section 149 IPC is not
attracted to the facts of the case and hence accused Nos.1 and 2
cannot be found guilty for the offences punishable with the aid
of Section 149 IPC, contends the learned counsel. In such an
event, if at all accused Nos.1 and 2 were found to have any
involvement of commission of the crime, the conviction can be
arrived at against them, only in respect of the individual acts
committed by them. It was also pointed out that, the evidence
available on record does not indicate the exact act committed by
the said persons. In order to substantiate the aforesaid
contention, the learned counsel for the appellant relies upon a
Constitution Bench decision rendered by the Honourable
Supreme Court in Mohan Singh and Another v. State of
Punjab [AIR 1963 SC 174]. In the said judgment, after
referring to various judicial precedents, it was held that, if out
of the members of unlawful assembly having more than five
members who were identified and arrayed as accused persons,
some of them were acquitted, thereby total numbers of
assailants had came out less than five numbers, the offences
punishable under Section 149 IPC would not be attracted. The
relevant observations in this regard can be found in paragraph
No.8 and 9 of the said judgment.
"8. The true legal position in regard to the
essential ingredients of an offence specified by
S.149 are not in doubt. S.149 prescribes for
vicarious or constructive criminal liability for all
members of an unlawful assembly where an offence
is committed by any member of such an unlawful
assembly in prosecution of the common object of
that assembly or such as the members of that
assembly knew to be likely to be committed in
prosecution of that object. It would thus be noticed
that one of the essential ingredients of Section 149
is that the offence must have been committed by
any member of an unlawful assembly, and S.141
makes it clear that it is only where five or more
persons constituted an assembly that an unlawful
assembly is born, provided, of course, the other
requirements of the said section as to the common
object of the persons composing that assembly are
satisfied. In other words, it is an essential condition
of an unlawful assembly that its membership must
be five or more. The argument, therefore, is that as
soon as the two Piara Singhs were acquitted, the
membership of the assembly was reduced from five
to three and that made S.141 inapplicable which
inevitably leads to the result that S.149 cannot be
invoked against the appellants. In our opinion, on
the facts of this case, this argument has to be
upheld. We have already observed that the point
raised by the appellants has to be dealt with on the
assumption that only five persons were named in
the charge as persons composing the unlawful
assembly and evidence led in the course of the trial
is confined only to the said five persons. If that be
so, as soon as two of the five named persons are
acquitted, the assembly must be deemed to have
been composed of only three persons and that
clearly cannot be regarded as an unlawful assembly.
9. In dealing with the, question as to the
applicability of S.149 in such cases, it is necessary
to bear in mind the several categories of cases
which come before the Criminal Courts for their
decision. If five or more persons are named in the
charge as composing an unlawful assembly and
evidence adduced by the prosecution proves that
charge against all of them, that is a very clear case
where S.149 can be invoked. It is, however, not
necessary that five or more persons must be convicted
before a charge under S.149 can be successfully brought
home to any members of the unlawful assembly. It may
be that less than five persons may be charged and
convicted under S.302/149 if the charge is that the
persons before the Court, along with others named
constituted an unlawful assembly; the other persons
so named may not be available for trial along with
their companions for the reason, for instance, that
they have absconded. In such a case, the fact that
less than five persons are before the Court does not
make S.149 inapplicable for the simple reason that
both the charge and the evidence seek to prove that
the persons before the Court and others number
more than five in all and as Such, they together
constitute an unlawful assembly. Therefore, in order
to bring home a charge under S.149 it is not
necessary that five or more persons must
necessarily be brought before the Court and
convicted. Similarly, less than five persons may be
charged under S.149 if the prosecution case is that
the persons before the Court and others numbering
in all more than five composed an unlawful
assembly, these others being persons not identified
and so not named. In such a case, if evidence shows
that the persons before the Court along with
unidentified and unamed assailants or members
composed an unlawful assembly, those before the
Court, can be convicted under S.149 though the
unnamed and unidentified persons are not traced
and charged. Cases may also arise where in the
charge, the prosecution names five or more persons
and alleges that they constituted an
unlawful assembly. In such cases, if both the charge
and the evidence are confined to the persons named
in the charge and out of the persons so named two
or more are acquitted leaving, before the court less
than five persons to be tried, then S.149 cannot be
invoked. Even in such cases; it is possible that
though the charge names five or more persons as
composing an unlawful assembly, evidence may
nevertheless show that the unlawful assembly
consisted of some other persons as well who were
not identified and so not named. In such cases,
either the Trial Court or even the High Court in
appeal may be able to come to the conclusion that
the acquittal of some of the persons named in the
charge and tried will not necessarily displace the
charge under S.149 because along with the two or
three persons convicted wore others who composed
the unlawful assembly but who have not been
identified and so have not been named. In such
cases, the acquittal of one or more persons named
in the charge does not affect the validity of the
charge under S.149 because on the evidence the
court of facts is able to reach the conclusion that
the persons composing the unlawful assembly
nevertheless were five or more than five. It is true
that in the last category of cases, the court will
have to be very careful in reaching the said
conclusion. But there is no legal bar which prevents
the court from reaching such a conclusion. The
failure to refer in the charge to other members of
the unlawful assembly un named and unidentified
may conceivably raise the point as to whether
prejudice would be caused to the persons before
the Court by reason of the fact that the charge did
not indicate that un named persons also were
members of the unlawful assembly. But apart from
the question of such prejudice which may have to
be carefully considered, there is no legal bar
preventing the court of facts from holding that
though the charge specified only five or more
persons, the unlawful assembly in fact consisted of
other persons who were not named and identified.
That appears to be the true legal position in respect
of the several categories of cases which may fall to
be tried when a charge under S.149 is framed."
15. Here, in this case, it is true that, the four accused
persons were identified and named in the final report and one
person is remaining as unidentified. However, crucial aspect to
be noticed in this regard is that, two persons; A3 and A4 were
found not guilty on the ground that, from the evidence of the
witnesses, their identity could not be established beyond
reasonable doubt. It is not a case where, the trial court arrived
at the conclusion that number of persons involved in
commission of the crime was less than five in numbers. On the
other hand, the involvement of A3 and A4 could not be
established by the prosecution beyond reasonable doubt, as
their identity was not proved with sufficient degree of proof as
required. In Mohan Singh (supra), itself, the competence of
the court to arrive at a conclusion of guilt in such circumstances
is dealt with. In paragraph No.11 of the said judgment, after
referring to the judgment of the Honourable Supreme Court in
Bharwad Mepa Dana v. State of Bombay [AIR 1960 SC
289] and also in Kartar Singh v. State of Punjab [AIR 1961
SC1787] It was observed as follows:
"In Bharwad Mepa Dana v. State of Bombay 1960-2
SCR 172 : (AIR 1960 SC 289) this Court was dealing
with a case where twelve named persons were
charged with having formed an unlawful assembly
with the common object of committing the murder
of three persons. At the trial before the Sessions
Judge, seven of the named persons were acquitted
and five were convicted under S.302/149 and
S.302/134. On appeal, the High Court acquitted one
of the convicted persons but maintained the
conviction and sentence passed on the rest. The
validity of the said order of conviction and sentence
was challenged before this Court on several
grounds, one of which was that S.149 became
inapplicable as soon as eight out of the twelve
persons named as members of the unlawful
assembly were acquitted. In rejecting this
argument, this Court referred to the finding
recorded by the High Court that the unlawful
assembly in question consisted of ten to thirteen
persons out of whom only four were identified and
not the rest; and held that it was open to the High
Court to come to such a finding. The argument
which was argued against the validity of such
finding was put alternatively in two forms. It was
first contended that the prosecution case must be
confined to the charge framed against the accused
persons and the charge in the Sessions Court
referred to twelve named persons as composing the
unlawful assembly and so, as soon as eight of them
were acquitted, S.149 became inapplicable. It was
also urged that in coming to the conclusion that the
unlawful assembly consisted of ten to thirteen
persons, the High Court was making out a case of a
new unlawful assembly and that was not
permissible in a criminal trial. Both these
arguments were repelled by this Court and it was
held that there was no legal bar which prevented
the High Court from coming to the conclusion that
apart from the persons who were acquitted and
excluding them evidence adduced by the
prosecution showed the presence of more than five
persons who composed the unlawful assembly, The
assembly about the existence of which the High
court has made a finding is not a new assembly but
the same assembly as alleged by the prosecution.
The only difference is that according to the charge,
all the members of the assembly were alleged to be
known, whereas on the evidence the High Court,
has reached the conclusion that the identity of all
the members of the assembly has not been
established though the number of the members
composing the assembly is definitely found to be
five or more. It is on this reasoning that this Court
confirmed the, conviction of the appellants under
S.302/149. Thus, this decision illustrates how S.149
can be applied even if two or more of the persons
actually charged are acquitted.
12. The same principle has been enunciated
by this Court in Kartar Singh v. State of Punjab AIR
1961 SC 1787. According to this decision, it is only
when the number of alleged assailants is definite
and all of them are named and the number of
persons found to be proved to have taken part in
the incident is less than five, that it cannot be held
that the assailants party must have consisted of five
or more persons. It is true that having stated that
position, this Court has also observed that the fact
that certain persons are named in the charge as
composing an unlawful assembly, excludes the
possibility of other persons to be in the said
assembly especially when there is no occasion to
think that the witnesses who named all the accused
could have committed mistakes in recognizing the
assailants. It is on this observation that Mr.
Raghubir Singh relies. We, however, think that it
would be unreasonable to read this statement as
laying down an unqualified proposition that
whenever persons named, in the charge are alleged
to constitute an unlawful assembly it is legally not
permissible to the prosecution to prove during the
trial that persons in addition to those named in the
charge also were of the said assembly. In other
words, what this observation intends to suggest is
that where persons named in the charge are alleged
to compose an unlawful assembly, the court of facts
would be slow to come to the conclusion that
persons other than those named in the charge were
members of the said assembly. If, however, it
appears on, evidence that persons not so named in
the charge were members of the unlawful assembly,
there is no legal bar which prevents the courts from
reaching that conclusion. This position can and does
arise, where some of the persons composing the
unlawful assembly are not identified by the
witnesses and they are not named. In fact, the
decision in the case of Kartar Singh itself shows
that this Court rejected the appellants contention
that their conviction under S.302 and 307, read
with S.149 was invalid. Therefore, we see no
inconsistency between the observations made in
this case and the earlier decisions to which we have
just referred. The result is that in the circumstances
of the present case, the appellants are entitled to
contend that S.149 cannot be invoked against
them."
16. The aforesaid observations made by the Honourable
Supreme Court indicates that, if the evidence available on
record clearly establishes the involvement of five or more
persons in commission of crime, the evidence under Section 149
IPC would be attracted, even if some of the persons named in
the final report were happened to be acquitted on account of
failure on the part of the prosecution in proving their identity.
In this case, right from the inception, the involvment of five or
more persons is clearly mentioned. As per the First Information
Statement, A1 and A2 were specifically named and presence of
three other persons was also mentioned. In the evidence of
PWs1, 2 and 4, the number of the persons is also specifically
stated by all the said witnesses . In such circumstances, I am of
the view that, merely because of the reason that A3 and A4
were acquitted for want of sufficient evidence as to their
identity, it cannot be concluded that offences under Section 149
IPC is not attracted. In such circumstances, I am not inclined to
accept the contention of the learned counsel in this regard.
17. Further contention of the appellant is with regard to
the offences under Section 307 of IPC. It was pointed out that
going by the injuries sustained by PWs1 and 2 as revealed from
the medical evidence, it cannot be concluded that the appellants
were having an intention to commit the murder of PW1. Even
though, it was alleged by the prosecution that PW1 sustained
injuries on his head with dangerous weapons, the medical
evidence does not indicate any head injuries. Of course, there
are aberrations on all part of the body of PW1 but the evidence
of PW16 coupled with Ext.P20 does not indicate any injuries
which are serious in nature so as to cause threat to the life of
PW1. Serious injuries were sustained on the hand of PW1 and
according to PW16 doctor the said injuries may affect the
functions of hand. Thus there is no evidence that the injuries
were so serious in nature, so as to endanger the life of PW1. In
order to attract the offence punishable under Section 307, act
must have been committed with an intention or knowledge that
the aforesaid act is likely to result in the death of PW1. On
analyzing the entire materials available on record, and nature of
injuries sustained by PW1, no such conclusion is possible and
hence I am of the view that Section 307 is not attracted as
against the accused persons. However, it is evident that the
injuries inflicted upon the victims are coming within the
description of grievous hurt as defined under Section 320.
Since the aforesaid injuries were inflicted with dangerous
weapons such as iron pipes and chopper, the offences under
Section 326 is attracted. In such circumstances, while I am
holding that A1 and A2 are to be acquitted under Section 307, I
am confirming the conviction of the said persons for offences
punishable under Section 326 IPC.
18. Next aspect is with regard to the conviction and
sentence of A5. He was found guilty by the trial court only with
the aid of 120B of IPC. Admittedly, A5 was not present in the
place of occurrence at the relevant time and he has also not
participated in crime physically. The prosecution produced
telephone call details of A5 to establish criminal conspiracy
under Section 120B. However, the trial court did not accept the
said materials, on the reason that, the same was not proved in the
manner as required under Section 65B of Evidence Act.
Therefore, crucial evidence based on which A5 was implicated
in the case, is not available for the prosecution. The only
remaining materials against A5 are the evidence of PW1 and
PW4. PW1 has stated that in the morning on the day of
occurrence A5 had threatened PW1 and insisted that no shed
shall be constructed in the property. PW4 has stated that just
before the incident, she accidentally met A5, whereupon he
asked PW4 to inform PW1 not to construct any shed in the
property. It was also stated by PW4 that at the time of assault
on PW1 and PW2, A5 was standing in front of the party office,
which was about 20 meters away from the place of incident. Of
course, the aforesaid evidence creates serious suspicion of
involvement of A5. However, it is a well settled position of law
that, suspicion however strong it may be, cannot substitute the
proof beyond reasonable doubt. The prosecution has to prove
the guilt ruling out all reasonable hypothesis of innocence of the
accused. In this case on analyzing the entire aspects of the
case, I am of the view that the criminal conspiracy alleged to
have been made by A5 with the other accused persons are
not established. In Raju Alias Devendra Choubey v. state of
Chhattisgarh [(2014) 9 SCC 299], the Honourable Supreme
Court observed in paragraph Nos.22 , 23 and 24 as follows:
"22. Mr. P.C. Agrawala, learned senior counsel for
the appellant Mahesh (accused No.3), vehemently
submitted that this accused ought not to have been
convicted under Section 302 with the aid of
Sections 34 and 120-B IPC. In particular it was
submitted that the role attributed to the accused
was that he merely stood outside the house. He did
not even act as a guard because when the witness
Anil Kumar (PW 21) came to the house, he was not
even stopped by the accused from entering the
house. The learned counsel for Mahesh (Accused
No.3) relied on several decisions of this Court in
Suresh Sakharam Nangare Vs. State of
Maharashtra [(2012) 9 SCC 249[, Jai Bhagwan Vs.
State of Haryana [AIR 1999 SC 1083] and
Ramashish Yadav Vs. State of Bihar [(1999) 8 SCC
555].
23. It is settled law that common intention
and conspiracy are matters of inference and if while
drawing an inference any benefit of doubt creeps in,
it must go to the accused vide Baliya Vs. State of
M.P. [(2012) 9 SCC 696].
24. On a careful conspectus of the facts and
the law, we are of the view that the prosecution has
failed to prove the guilt of Mahesh beyond
reasonable doubt. There is no evidence of his
having played any part in the crime. He was merely
seen by the witness as standing outside the house
when the witness came home. Mahesh did not even
act as a guard; he did not prevent Anil Kumar
(PW21) from entering the house. There is no
evidence of the formation or sharing of any common
intention with the other accused. There is no
reference to a third person in the FIR; no evidence
that he came with the other accused or left with
them. No weapon was seized from him, nor was any
property connected with the crime, seized. Having
regard to the role attributed to him and the absence
of incriminating factors we find that it is not safe to
convict Mahesh of the offence of murder with the
aid of Sections 34 and 120(B). "
19. The factual circumstances in which the aforesaid
decision was rendered by the Honourable Supreme Court are
similar in nature with that of this case.
20. In the light of the above, I am of the view that, A5 is
entitled for benefit of doubt as there are no materials available
on record to establish his guilt beyond reasonable doubt. In
such circumstances, I hold that 5th accused is not guilty of the
aforesaid offence.
21. In the result, this appeal is allowed in part and the
judgment passed by the Addl.Sessions Court, Kalpetta in
S.C.No.81 of 2014 shall stand modified to the extend as follows:
(i) Accused Nos.1 and 2 who are appellants 1 and 2
herein are found not guilty of the offence punishable
under Section 307 of IPC.
(ii) Conviction and sentence imposed upon the accused
Nos.1 and 2 for the offences punishable under
Section 143, 147 , 148, 324 and 326 are hereby
confirmed.
(iii) Accused No.5 is found not guilty and acquitted of all
the charges.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
DG
