Kerala High Court
Abdul Hashim vs State Of Kerala on 4 June, 2025
CRL.A NO. 1883 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TH
WEDNESDAY, THE 4 DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
CRL.A NO. 1883 OF 2007
AGAINST THE JUDGMENT DATED 11.09.2007 IN SC NO.444 OF 2002 OF
ADDITIONAL SESSIONS JUDGE FAST TRACK - III, THIRUVANANTHAPURAM (CP NO.107
OF 2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATTINKARA IN CRIME
NO.315/1998 OF NEMOM POLICE STATION)
APPELLANT/1ST ACCUSED:
ABDUL HASHIM
CHEKKITTAVILA VEEDU,KARAKKAMANDAPAM,,
MANUKULADICHAMANGALAM DESOM, NEMOM,THIRUVANANTHAPURAM.
BY ADV SRI.THIRUMALA P.K.MANI
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA,ERNAKULAM.
OTHER PRESENT:
SR PP RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.06.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
A. BADHARUDEEN, J
============================
Crl.Appeal No. 1883 of 2007
==============================
Dated 04th day of June 2025
JUDGMENT
This Criminal Appeal has been filed under Section 374(2) of
the Code of Criminal Procedure by the 1st accused in CC No.444
of 2002 arising out of Crime No. 315 of 1998 of Nemom police
station, challenging the conviction and sentence imposed against the
appellant as per judgment dated 11.09.2007.
2. Heard the learned counsel for the 1st accused/appellant as
well as the learned Public Prosecutor in detail. Perused the case
records.
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3. For effective and easy discussion, the parties in this appeal
will be referred to as 'prosecution' and 'accused' hereafter.
4. The prosecution case is that, on 06.12.1998, a hartal was
organized by a political party, and while the said hartal was in
progress, accused Nos.1 to 7 formed themselves into an unlawful
assembly knowing that they are all members of the said assembly, to
commit crime, and thereafter in prosecution of their common
object, they assembled at 08.30 p.m., in Karakkamandapam and
pelted stones against the bus driven by PW1, which was owned by
the Government of Tamil Nadu. The prosecution allegation further
is that, due to pelting of stones, the front glass of the bus was
broken, and due to contact with the broken glass, PW1 sustained
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injuries on his face and right clavicle. That apart, the Tamil Nadu
Government sustained a loss of Rs.16,000/- due to breakage of the
glass of the bus. On this premise, the prosecution alleged
commission of offences punishable under Sections 143, 147, 148,
and 333 r/w 149 of the IPC as well as Section 3(a)(e) of the PDPP
Act, by accused Nos. 1 to 7.
5. When the matter was committed to the Court of Session,
Thiruvananthapuram, the same has been made over to the
Additional Sessions Court Fast Track - III, Thiruvananthapuram,
for trial and disposal. The Additional Sessions Judge framed charge
for the said offences and tried the matter. PWs 1 to 9 were examined,
Exts. P1 to P12, and MOs 1 and 2 series were marked on the side of
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the prosecution. Thereafter, the accused was questioned under
Section 313(i)(b) of the Cr.P.C. and explained all the incriminating
circumstances against him brought in evidence. Although the
accused was then provided with opportunity to adduce defence
evidence, he did not adduce any defence evidence. Later, on
appreciation of evidence, the trial court found that the 1st accused
committed offences punishable under Sections 143, 147, 148, and
333 r/w 149 of IPC as well as Section 3(2)(e) of the PDPP Act, and
accordingly, he was sentenced as under:-
"The 1st accused is sentenced to undergo rigorous
imprisonment for 3 months u/s 143 of IPC, rigorous
imprisonment for 6 months u/s 147 of the IPC,
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rigorous imprisonment for one year u/s 148 of the
IPC, rigorous imprisonment for 3 years and to pay a
fine of Rs.5,000/- in default to undergo further period
of imprisonment for 6 months u/s 333 of the IPC r/w
149 of the IPC and to undergo rigorous imprisonment
for 6 months and to pay fine of Rs.2,000/- in default to
undergo further period of imprisonment for 3 months
u/s 3(2)(e) of P.D.P.P. Act r/w 149 of IPC.
Substantive sentences shall run concurrently. Set off
allowed from 17.12.1998 to 16.12.1998."
The trial court acquitted Accused Nos. 2 and 4 to 7 by giving them
benefit of the doubt, while refiling the case of the 3rd accused.
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6. It is pointed out by the learned counsel for the 1st accused
that, in order to prove the occurrence, PW1 -- the injured, who is
the driver of the bus alleged to have been attacked by the accused,
was examined. That apart, PWs 2 and 3, two more eyewitnesses, also
were examined, but they turned hostile to the prosecution. It is
pointed out by the learned counsel for the 1st accused that on
scanning the evidence of PW1, he had spoken about the occurrence,
but during cross-examination, he failed to segregate the overt acts at
the instance of the accused persons with certainty. According to the
learned counsel for the 1st accused, the evidence of PW1 is to the
effect that someone from the mob pelted stones at the bus, and the
front glass of the bus was broken. But in the evidence of PW1, he
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did not specify who pelted stones against the bus; instead, his
evidence is that stones were pelted by one among the accused
(Nos. 1 to 7). According to the learned counsel for the 1st accused,
relying on this evidence, the trial court acquitted accused Nos. 2 and
4 to 7 for want of proof of the overt acts against them. But the trial
court, relying on the same evidence of PW1, without specifying the
overt acts committed by the 1st accused and without identifying the
1st accused as the person who pelted stone, wrongly convicted and
sentenced the 1st accused. Therefore, the verdict under challenge
would require interference, and the 1st accused would deserve
acquittal.
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7. Whereas the learned Public Prosecutor supported the
prosecution case, while conceding that the evidence of PW1 did not
disclose the specific overt acts of the 1st accused after identifying
him.
8. Addressing the contentions, the points that arise for
consideration are as follows:-
1. Whether the trial court is justified in holding that
the 1st accused committed offence punishable under
Section 143 r/w 149 of the IPC?
2. Whether the trial court is justified in holding that
the 1st accused committed offence punishable under
Section 147 r/w 149 of the IPC?
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3. Whether the trial court is justified in holding that
the 1st accused committed offence punishable under
Section 148 r/w 149 of the IPC?
4. Whether the trial court is justified in holding that
the 1st accused committed offence punishable under
Section 333 r/w 149 of the IPC?
5. Whether the trial court went wrong in finding
commission of offence under Section 3(2) (e) of the
PDPP Act by the 1st accused.
6. Is it necessary to interfere with the verdict of the
trial court?
7. The order to be passed?
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Point Nos 1 to 6:-
9. In this case, as pointed out by the learned counsel for the
1st accused as well as the learned public prosecutor, direct evidence
in this case is confined to that of PW1 alone, since the independent
witnesses examined as PWs2 and 3 turned hostile to the prosecution.
PW1 is the de facto complainant and the injured, who had driven
bus bearing registration No. T.N 74 - No. 9583 at the time of
occurrence. He deposed that 06.12.1998 is the date of occurrence,
and at the time of occurrence, he was driving the bus from Nagercoil
towards Thiruvananthapuram. When the vehicle reached about
06.30 pm in Karakkamandapam, 7 to 8 persons pelted stones in
front of the bus, and the front wind glass of the bus was broken. As
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a consequence thereof, he sustained injury on his face when he came
into contact with the glass pieces. Thereafter, he parked the vehicle,
and subsequently, he was taken to the Medical College Hospital by
the police. He also identified A1, 2, and 4 to 7 present before the
court as the persons who pelted stones at the bus. He further
deposed that he identified the accused from the headlight of the bus
and also from the light available from the streetlight. Further, he
deposed that after pelting stones, the accused ran towards north.
That apart, he deposed that due to the act of the accused, the
performance of his duty was obstructed and a loss of Rs.7,000 was
caused to the Government of Tamil Nadu. He admitted that he had
given Ext.P1 FIS, and he identified MO1 as the granite stone pelted
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against the bus, and also identified MO2 series broken pieces of
windscreen glass of the bus.
10. During cross-examination of PW1, it was deposed by PW1
that he could not say who pelted stones, and it was done by
somebody among the accused. PWs2 and 3, the occurrence
witnesses turned hostile to the prosecution as already observed.
PW4 is the Doctor who examined PW1 and issued Ext.P4 wound
certificate showing fracture of the middle third of the clavicle and
abrasion on the right clavicle to PW1, and he deposed in support of
prosecution. and opined that the injuries could be caused as alleged.
PW5, the constable who was on GD charge, Nemom police station,
as on 06.12.1998, recorded Ext.P1 FIS given by PW1 and registered
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Ext.P5 FIR also supported prosecution. PW4 was additionally
examined to prove the mahazar marked as Ext.P6. However, PW4
did not support Ext.P6, though he admitted his signature in Ext.P6,
stating that it was signed at the police station. It is true that MOs1
and 2- rock stones, and series of broken glasses were recovered from
the place of occurrence. PW7- the Investigating Officer also
supported the prosecution.
11. In the instant case, it is strange to note that after having
found by the trial court that the offences alleged against accused
Nos. 2 as well as 4 to 7 were failed to be proved by the prosecution
beyond reasonable doubts, and after acquitting them, giving the
benefit of doubt, the learned Sessions Judge found commission of
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offences punishable under Sections 143, 147, 148, 333 r/w 149 of
IPC as well as Section 3(2)(e) of the PDPP Act by the 1st accused
alone. It is interesting to note that the evidence of PW1, if taken
together, could not suggest that the 1st accused pelted stones to the
bus and he had familiarity with the 1st accused. In fact, the learned
Sessions Judge acquitted accused Nos.2 and 4 to 7 after refiling the
case against the 3rd accused, who was not available for trial, merely
finding that by the evidence of PW1 the allegations against them not
proved. But the learned Sessions Judge, relying on the same
evidence, found that the 1st accused committed the offences.
12. On going through the evidence of PW1 on par with the
arguments advanced by the learned counsel for the 1st accused, it is
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discernible that, in fact, the role of 1st accused was not specifically
stated by PW1, and the evidence in toto would show that somebody
among the accused pelted stones against the bus and in consequence
thereon, the front glass of the bus was broken; and in turn he
sustained injuries. Regarding the identity of the accused, PW1, who
had no prior familiarity with the accused, did not tender any positive
evidence to establish the same.
13. It is the settled principle of law that when on appreciation
of the same evidence, benefit of doubt is extended to some among
the accused or one among the accused, it is not permissible to find
commission of offence by the other accused relying on the very same
evidence. To put it differently, if the trial court grants the benefit of
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doubt to one of the accused based on common evidence, such
benefit should ordinarily be extended to all similarly placed accused
persons without discrimination. Thus, in the instant case, the trial
court committed fundamental error in not applying the said
principle. It is also relevant to note that without junction of other
accused, the trial court wrongly found that the 1st accused alone
committed offences punishable under Sections 143, 147, 148, 333
r/w 149 of the IPC. Thus, the verdict is found to be unsustainable,
and therefore, the same requires interference.
14. In the result, this appeal succeeds and is accordingly
allowed. Conviction and sentence imposed by the trial court against
the 1st accused/appellant for the offences punishable under Sections
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143, 147, 148, 333 r/w 149 of IPC as well as Section 3(2)(e) of the
PDPP Act stand set aside and the accused is acquitted for the said
offences. His bail bond stands cancelled, and he is set at liberty
forthwith.
Registry is directed to forward a copy of this judgment to the
trial court for information.
Sd/-
A.BADHARUDEEN, JUDGE
RMV
