Kerala High Court
Mohanan vs State Of Kerala on 25 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 25TH DAY OF JUNE 2025/4TH ASHADHA, 1947
CRL.A NO. 434 OF 2014
AGAINST THE JUDGMENT DATED 07.05.2014 IN SC NO.75
OF 2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT-
IV, KOTTAYAM
APPELLANTS/ACCUSED 1 AND 2:
1 MOHANAN
AGED 53 YEARS
S/O.THANKAPPAN, PUTHKKATTU VEEDU,
PUNNACKACHUNKAM BHAGOM,
MOOLAVATTOM KARA,
PANACHIKKADU VILLAGE.
2 SARATH MOHANAN
AGED 24 YEARS
S/O.MOHANAN, PUTHKKATTU VEEDU,
PUNNACKACHUNKAM BHAGOM,
MOOLAVATTOM KARA, PANACHIKKADU VILLAGE.
BY ADVS.
SHRI.G.SREEKUMAR (CHELUR)
SRI.NANDAGOPAL S.KURUP
SHRI.SURESH BABU THOMAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
PP HASNA MOL.N.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18.06.2025, THE COURT ON 25.06.2025 DELIVERED THE
FOLLOWING:
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2
CR
JUDGMENT
Dated this the 25th day of June, 2025
Accused Nos.1 and 2 in SC No.75/2011 on the files
of the Additional Sessions Court-IV, Kottayam, has filed this
criminal appeal challenging conviction and sentence imposed
against him in the above case dated 07.05.2014. The
respondent herein is the State of Kerala, represented by the
learned Public Prosecutor.
2. Heard the learned counsel for the
appellants/accused Nos.1 and 2 and the learned Public
Prosecutor in detail. Perused the trial court records and the
evidence in detail.
3. In this matter, the police filed final report
alleging commission of offences punishable under Sections
143, 147, 148, 324, 325, 323, 308 and 201 r/w Section 149 of
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the Indian Penal Code (hereinafter referred to as 'IPC' for
short) by the accused. The allegation of the prosecution is
that on 05.07.2009 at about 1 pm, all the accused formed
themselves into an unlawful assembly, and in furtherance of
their common object to attack PW2, came in a car owned by
the 1st accused near the shop of PW3 and A2 hit on the head
of PW2 with an iron rod and again inflicted injury on the back
side of head. A4 hit on the lower part of right knee and A1
and A3 stabbed PW2 when he fell down. A3 and A4 beat
CW2 with an iron rod on his left leg, thereby causing fracture
to the leg. It is alleged that the 1 st accused had some
difference of opinion with PW2 at Kuttikkadu temple and due
to this enmity, the accused attacked PW2. Thus the
prosecution allegation is that the accused persons attacked
PW2 with knowledge that their overt acts are sufficient to
cause death of PW2.
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4. The trial court after completing the
formalities for trial, framed charge for the said offences and
recorded evidence.
5. During trial, PW1 to PW9 were examined
and Exts.P1 to P18 were marked on the side of the
prosecution. Exts.D1 and D2 were also marked during cross-
examination of the prosecution witnesses at the option of the
accused. After completion of the prosecution evidence, even
though the accused were given opportunity to adduce
defence evidence after questioning him under Section 313(1)
(b) of the Code of Criminal Procedure, they did not adduce
any evidence.
6. Finally, the trial court found that accused
Nos.1 and 2 committed offences punishable under Sections
143, 147, 148, 326 and 308 r/w 149 of IPC.
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7. During pendency of this appeal, the 1st
accused died and now the 2nd accused alone is alive. While
challenging the verdict of the trial court, it is pointed out by
the learned counsel for the 2nd appellant that the 2nd appellant
is innocent. According to the learned counsel for the 2 nd
appellant, even though in the First Information Statement,
involvement of 6 persons in this occurrence was stated,
when PW1, who gave Ext.P1 statement, was examined, he
deposed that only 4 persons were involved in this crime.
Therefore, offence under Section 143 series would not
attract. Further it is argued that even though the accused
were identified, witnesses did not specifically identify the
accused by pointing out them specifically and therefore, there
is no proper identification. It is also submitted by the learned
counsel for the 2nd appellant that going by the statement of
the injured, who was examined as PW2, the 1 st accused
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asked the 2nd accused to chop PW2 and then the 2 nd
accused, Sarath, chopped on his head, but it was restrained
by using his left hand and the same caused injury on his left
hand and it was bleeding. Thereafter, the evidence of PW2 is
that some others beat him on his right hand by using an iron
rod and thereby he fell down. The further version of PW2 is
that Mohanan (A1) and others had beaten him and kicked
him. According to the learned counsel for the 2 nd appellant,
the only overt act against the 2nd accused is that he
attempted to beat on the head of PW2 but when it was
restrained, the same caused an injury on his left elbow.
Accordingly, it is pointed out by the learned counsel for the
2nd appellant that since the presence of only 4 persons is
deposed by all the witnesses, offence under Section 143
series would not attract. That apart, even taking the overt
acts at the instance of the 2nd accused, the same also would
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not attract the offence under Section 308 of IPC.
8. The learned Public Prosecutor would submit
that the identification of the 2nd accused is substantially
proved in this case and in the First Information Statement,
involvement of 6 persons stated. Therefore, the contention
raised by the 2nd appellant/ 2nd accused as advanced would
not save the accused and therefore, the conviction and
sentence are to be confirmed.
9. Addressing the rival submissions, the points
arise for consideration are;
1. Whether the trial court is justified in holding that
the 1st and 2nd accused committed offence
punishable under Section 143 r/w 149 of IPC?
2. Whether the trial court is justified in holding that
the 1st and 2nd accused committed offence
punishable under Section 147 r/w 149 of IPC?
3. Whether the trial court is justified in holding that
the 1st and 2nd accused committed offence
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punishable under Section 148 r/w 149 of IPC?
4. Whether the trial court is justified in holding that
the 1st and 2nd accused committed offence
punishable under Section 326 r/w 149 of IPC?
5. Whether the trial court is justified in holding that
the 1st and 2nd accused committed offence
punishable under Section 308 r/w 149 of IPC?
6. Whether the trial court verdict requires
interference?
7. Order to be passed?
10. On going through Ext.P1 statement given by
PW1, who is the brother of PW2, he deposed that he came to
know about the occurrence whereby his brother sustained
injuries and was taken to hospital. Soon he reached the
hospital and found that PW2 sustained injuries on his head,
hand and right leg and he understood that Mohanan (A1), his
son (A2) and two others attacked PW2. It is true that before
start of trial, the original 4th accused, Shibu, died and his case
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was abated. Going through the evidence of PW1, it is
emphatically clear that the presence of 4 persons alone was
deposed by PW1.
11. Coming to the evidence of PW2, he also
deposed in support of the prosecution on asserting that at
about 1 pm on 05.07.2019 while he was at Divan Kavala,
Mooledam, A1 (Mohanan) and A2 (Sarath) along with others
reached in a car bearing registration No.KL-51-Z 3344 and
went out of the car. Then Mohanan directed his son, Sarath to
beat on his head and soon, Sarath attempted to chop on his
head and when it was restrained, the same caused injury on
his left elbow. His evidence further is that some among them,
beat on his head and the same caused injury on his head.
Another person also beat on his hand and thereby he sustained
fracture. Thereafter, Mohanan and others had beaten and
kicked him. He was taken to Medical College Hospital
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and he identified the accused as A1, A2, A3 and A4 at the
dock. In no way, PW2 identified A1 as Mohanan, A2 as
Sarath and A3 and A4 by their name. According to PW2, the
motive behind this crime is difference of opinion in between
A1 and PW2 while they were acting as the members of the
Kuttikkad Devi Temple committee. During cross-examination,
PW2 deposed that Mohanan followed him with gundas and 2
persons chopped him by using a sword stick. In fact, in the
evidence of PW2 also, there is nothing to show that five
persons attacked him with certainty. Further, the identity also
not fully established. Even though the prosecution examined
PW3 to prove the occurrence and he supported attack
against PW2, he did not identify the assailants and
accordingly, he was declared hostile. PW4 examined in this
case is also declared hostile since he did not support the
prosecution case. PW5 is one Ratheesh K.Prasad and he
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supported the prosecution case and he deposed that when
he reached near the shop room of PW3, the accused
escaped in a car and altogether 4 persons were there and
out of which, he is so familiar with A2 and he did not see A1
specifically.
12. Ext.P1 First Information Statement was
recorded in this case by PW7, the then Assistant Sub
Inspector of Chingavanam Police Station and he had
registered Ext.P6 FIR. PW6 is the witness to Ext.P5 mahazar,
whereby KL-51-Z 3344 car was taken into custody. He
supported the recovery. Ext.P7 search memo, Ext.P8 search
list, Ext.P9 forwarding note of the vehicle and Ext.P10 to 17
were marked through PW8, the Sub Inspector of Police,
Chingavanam Police Station on 03.07.2009 since the
investigating officer Sri.Rajan was bedridden during trial.
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13. As far as the injuries sustained by PW2 are
concerned, apart from the evidence of PW2, Dr.Aneen,
examined as PW9, gave evidence supporting Ext.P18 wound
certificate. PW9 deposed that he had examined PW2 on
05.07.2009 while working as lecturer in Orthopedic, Medical
College Hospital, Kottayam, and noted the following injuries.
(1) Lacerated wound 2x2 cm and anterior aspect of
right leg
(2) Lacerated wound 6x3 cm over right lateral
malleolus
(3) Lacerated wound 5x1 cm on anterior aspect of
left leg.
(4) Lacerated wound 6x2 on left side of scalp
(5) Lacerated wound 7x3 cm left elbow
14. X-ray revealed that there was a segmental
fracture on both bones of right leg. The doctor opined that the
above injuries could be caused by using a 'sword stick'.
Anyhow, the weapon alleged to have used to attack
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PW2 neither recovered nor produced.
15. The interesting question in this case to be
decided first is whether prima facie offence under Section 143
series would attract in the instant case. Section 143 of IPC
provides that whoever is a member of an unlawful assembly,
shall be punished with imprisonment. The term 'unlawful
assembly' is defined under Section 141 of IPC and as per
which unlawful assembly means, an assembly of 5 or more
persons, if the common object of the persons composing that
assembly is discernible. In the instant case, even though in
the First Information Statement, the presence of more than 5
persons stated by the brother of PW2 who gave Ext.P1
statement, during evidence, he also stated that only 4 persons
were present during the occurrence. None of the witnesses
examined on the side of the prosecution, including PW2 and
PW4, otherwise stated that five or more persons
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were present at the scene of occurrence. In order to attract
the offence of unlawful assembly, the ingredients are (i)
there was an assembly of five persons, (ii) the assembly had
a common object and (iii) the said common object was to
consist one or more of the five illegal objects specified in
section 141 IPC. Thus, in the instant case, the prosecution
miserably failed to prove that there was an unlawful
assembly of five or more persons, sharing common object to
commit crime and therefore, the trial court went wrong in
finding that accused Nos.1 and 2 committed offences
punishable under Sections 143, 147, 148, 326 and 308 r/w
149 of IPC and therefore, the said conviction and the
corresponding sentence shall not sustain in the eye of law. It
is true that as per the evidence of PW2 and that of PW9 (the
doctor), PW2 sustained fracture to both legs. Segregating the
overt acts, the first and second accused did not beat on the
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leg of PW2. PW2 or any other witness gave evidence
supporting who beat on his leg which resulted in fracture.
Thereby the other accused were acquitted by the trial court.
When unlawful assembly by involving five or more persons
could not be found on evidence, the impact of Section 149 of
IPC providing that every member of unlawful assembly is guilty
of offence committed in prosecution of common object also
would not apply.
16. It is interesting to note that in order to fasten
criminal culpability upon an accused, there must be
identification of the accused with certainty. It is true that A1 is
the father of A2 and according to PW2, they were familiar to
each other since they worked in Kuttikkad Devi Temple
committee. But on perusal of the evidence of PW2, it could
not be found that PW2 identified the accused persons
specifically, instead of PW2 identified A1, A2, A3 and A4 at the
dock in common. When more than one accused involved
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in a crime, the victim or the occurrence witness must identify
them specifically with certainty. That is to say, the
identification must be by deposing the specific overt act/s
done by the particular accused after pointing him at the dock
specifically. Mere evidence given by the victim or witnesses
stating that A1, A2, A3 etc., the accused at the dock,
committed the offence is not proper way of identification. If
the role of each accused is not specifically deposed by
pointing a particular accused, the identification is insufficient
to hold that the particular accused involved in this crime by
doing particular overt acts. It is relevant to note that the
identification of A1 to A4 as the assailants without specifically
saying who had beaten on the legs and head of PW2, without
identifying the accused by pointing him specifically at the
dock, could not be sufficient to prove the identity of the
accused. It is true that PW4 testified that he was so familiar
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with the 2nd accused when he witnessed the departure of the
assailants in a car after the occurrence. But PW4 did not
witness the occurrence. Then the crucial evidence of PW2 is
relevant in the matter of identification of the assailants. PW2
did not identify accused Nos.1 and 2 or other accused
specifically as already observed. Thus in the instant case,
though the ingredients to attract the offences under Sections
326 and 308 of IPC could be gathered, the identity of
accused Nos.1 and 2 not established so as to fasten the
criminal culpability upon them. It is interesting to note that the
other accused, who involved in the incident and who caused
fracture to both bones of PW2, were acquitted while
convicting accused Nos.1 and 2 alone, though their
complicity in the matter is much lesser than the other
accused, where offences under Sections 143 and 149 of IPC
could not be found. Since the identity of accused Nos.1 and
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2 was not established to hold that he had committed the
offences, conviction for offences punishable under Sections
326 and 308 of IPC also would not stand in the eye of law. In
such view of the matter, the verdict under challenge would
require interference.
17. It is true that the 1st accused is no more in a
case where the court imposed imprisonment and fine against
the 1st accused also. Since the 2nd accused is his son, he
deemed to be representing the 1st accused. Therefore, I am
inclined to set aside the conviction as well as the sentence
imposed against accused Nos.1 and 2 in this case.
In the result, this appeal succeeds and the
conviction and sentence under challenge, imposed against
the 1st and 2nd accused, stand set aside. The 2nd accused is
set at liberty forthwith. The bail bond of the 2 nd accused is
cancelled. Realisation of fine from the assets of the 1 st
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accused also does not arise as a sequel thereof.
Registry is directed to forward a copy of this
judgment to the trial court forthwith for information and
compliance.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
