High Court Kerala High Court

Gireesan Nair vs State Of Kerala on 14 January, 2010

Kerala High Court
Gireesan Nair vs State Of Kerala on 14 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 384 of 2006()


1. GIREESAN NAIR, S/O.GOPALAN PILLAI,
                      ...  Petitioner
2. PADMAKUMAR, S/O.GOPINATHAN NAIR,
3. CHANDRAMOULI @ RAMESH,
4. ANAND MOHAN, S/O. MOHAN KUMAR,
5. PRAVEEN KUMAR, S/O. MOHANAN NAIR,
6. SHINU KUMAR @ VISHNU, S/O.VELAYUDHAN,
7. MURALI, S/O. GOPALAKRISHNAN,
8. RAJU, S/O. MOHANAKUMARAN NAIR,
9. VIJAYESH, S/O. RAJAN,
10. SANTHOSH KUMAR @ SANTHOSH,
11. VINOD @ MANU, S/O. VIKRAMAN,
12. SUDHARSANAN, S/O.BALACHANDRAN NAIR,
13. VIJAYAKUMAR @ BIJU @ POODAN,
14. UMAKANTHAN, S/O. ACHUTHAN NAIR,
15. JAYAKUMAR, S/O.MURALEEDHARAN NAIR,
16. RAJASEKHARAN, S/O.KRISHNAPILLAI,
17. RAJ KUMAR @ RAJAN,
18. RAVIKUMAR, S/O. VASUDEVAN NAIR,
19. ARUNKUMAR @ MAHESHWARAN,
20. SUDHAKARAN, S/O.PARAMESWARAN NAIR,
21. MANIKANTAN, S/O. DAMODARAN NAIR,
22. SISUPALAN @ SISUPALJI,

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :14/01/2010

 O R D E R

K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.

——————————————————————

Cr. A. Nos.384/06, 385/06 & 1279/07

——————————————————————

Dated 14th January 2009

Judgment

Bhavadasan, J.

Thirty three persons were prosecuted for the offences

punishable under Ss.120B, 143, 147, 148, 324, 427, 506, 302

r/w 149 IPC and Ss.109, 111 IPC and S.3(2)(e) of the

Prevention of Damages to Public Property Act, 1984 (hereinafter

referred to as the PDPP Act). Accused Nos.8, 13, 15 and 20 to

24 were found not guilty of any of the offences and were

acquitted of the charges. Accused Nos.17 and 19 were found

guilty of the offences punishable under S.302 r/w 34 IPC.

Accused Nos.1 and 2, along with A25 to A33 were found guilty

of the offence punishable under S.120B r/w S.3(2)(e) of the

PDPP Act. A1 to A7, A9 to A12, A14 and A16 to A19 were

found guilty of the offences punishable under S.143 IPC. The

said accused were found guilty of the offences punishable under

Ss.147 and 148 as well. The accused persons, who were found

guilty of various offences, were sentenced to various terms of

imprisonment.

Cr.A.Nos.384/06, 385/06 & 1279/07 2

2. The Prosecution case, in brief, is as follows :

The Government of Kerala decided to de-link Pre-degree

course from the colleges and to start Plus-two course at the

School level. There were protests from various quarters and the

A.B.V.P., one of the students organisations in Kerala, on

12.07.2000, launched a protest march against the policy

adopted by the Government. It is stated that the Police were

harsh on them and several protesters, including girl students

were injured. The Prosecution case is that infuriated by the said

conduct of the Police, the office bearers of the A.B.V.P. and

allied organisations decided to launch a strong protest on

13.07.2000, by causing destruction to public property and

trespass into the Government Secretariat. The case of the

Prosecution is that on 13.07.2000, the protesters belonging to

the A.B.V.P., armed with deadly weapons, marched to the

Secretariat. When the Police prevented them from entering the

Secretariat, they became violent. They caused damage to

several of the K.S.R.T.C. buses and some of them went inside

the garage of the K.S.R.T.C. A few employees of the

K.S.R.T.C. reacted to the acts committed by the students and

Cr.A.Nos.384/06, 385/06 & 1279/07 3

they tried to repel them. In that process, Rajesh, a Conductor of

the K.S.R.T.C., received blows from A17 and A19, to which, he

later succumbed. The further allegation is that the students went

berserk and caused considerable damages to the public

properties, including 86 Nos. of K.S.R.T.C. buses.

3. Rajesh, the injured was admitted in the Medical College

Hospital, Thiruvananthapuram. On getting information about

the same, PW72, a Head Constable, attached to the Fort Police

Station reached the Hospital and found that Rajesh was in a

critical stage. Therefore, he recorded the F.I. statement Ext.P6

given by PW2, another employee of the KSRTC, who was

waiting outside the I.C.U. wing of the Medical College Hospital.

He also prepared Ext.P6(b) body note of the injured. On the

basis of Ext.P6 F.I. statement, Crime No.261/2000 for the

offences punishable under Ss.143, 147, 148, 307 r/w 149 IPC

and S.3(2)(e) of the PDPP Act and Ss.3 and 5 of the Explosive

Substances Act, 1908 and Ext.P6(a) F.I.R. were registered. The

investigation was taken over by PW78, the then Circle Inspector

of Police, Fort Police Station. On the same day, he received

reliable information that some of the accused persons involved in

Cr.A.Nos.384/06, 385/06 & 1279/07 4

Crime No.260/2000 of the Fort Police Station had gone to the

Karyalaya of the R.S.S., carrying weapons. PW78, therefore,

prepared Ext.P98 search memo and searched the Karyalaya.

He found A1 to A6 there and arrested the said accused persons.

He also recovered several weapons from there. Later, PW78 got

information that some other accused persons, who were

involved in the crime, were standing near Sreevaraham pond

and he arrested A7 to A21 from there. On 14.07.2000, he

inspected the scene of occurrence, prepared Ext.P91 scene

mahazar and seized the materials found there. He submitted

Ext.P100 report to the court, furnishing the names and

addresses of A1 to A16. He recorded the statement of

witnesses. Subsequently, the investigation was taken over by

PW76, as per Ext.P95 order of the D.I.G., Thiruvananthapuram.

In the meanwhile, Rajesh succumbed to his injuries and

therefore, PW78 went to the Medical College Hospital,

conducted inquest over the body of Rajesh and Ext.P55 inquest

report was prepared. The body was then, sent for autopsy.

PW56, the Forensic Surgeon conducted autopsy on the body of

Rajesh and prepared Ext.P76 postmortem certificate. Later, a

Cr.A.Nos.384/06, 385/06 & 1279/07 5

report was filed before the Court to incorporate S.302 IPC in the

charge. All the accused were arrested, investigation was

completed and charge was laid before Court.

4. The Judicial First Class Magistrate’s Court-II,

Thiruvananthapuram, before whom, the final report was laid,

took cognizance of the offences. On appearance of the

accused before Court, necessary legal formalities were complied

with and on finding that the offences were exclusively triable by a

Court of Sessions, the learned Magistrate committed the case to

the Sessions Court, Thiruvananthapuram. The latter Court, for

speedy disposal, made over the case to the Additional District

and Sessions Judge (Fast Track) Court-I, Thiruvananthapuram.

The said Court, on receipt of the records, issued summons to

the accused. They entered appearance and after hearing both

sides, the Court below framed charges against the accused. To

the charges, the accused pleaded not guilty and claimed to be

tried. The Prosecution, therefore, examined PWs1 to 85 and

marked Exts.P1 to P134. MOs 1 to 27 were also got identified

and marked. After the close of the evidence, the accused were

questioned under S.313 Cr.P.C.They denied all the incriminating

Cr.A.Nos.384/06, 385/06 & 1279/07 6

circumstances brought out in evidence against them and

maintained that they were innocent. Finding that the accused

could not be acquitted under S.232 Cr.P.C., they were called

upon to enter on their defence. From the defence side, three

witnesses DWs 1 to 3 were examined and exhibits D1 to D24

were also marked.

5. The Court below, on an appreciation of the evidence in

the case, found that offences have been established against

some of the accused as already mentioned. Therefore,

conviction and sentence, with regard to those offences, followed.

They are assailed in these Appeals.

6. Cr.A.No.384/06 is filed by A1 to A7, A9, A14, A16 to A19

and A25 to A33. Cr. A. No.385/06 is filed by A10, A11 and A12

and Cr.A. No.1279/07 is filed by the State of Kerala.

7. The question that arises for consideration in the appeals

filed by the accused is whether the Court below was justified in

finding that the Prosecution case is true and whether the

acquittal of some of the accused is justified or not, is the point to

be decided in the appeal filed by the State.

Cr.A.Nos.384/06, 385/06 & 1279/07 7

8. The Prosecution builds up its case on three aspects,

namely,

(1) Conspiracy to commit various offences,

(2) Causing death of Rajesh &

(3) Destruction of public property.

The Court below was inclined to accept the case of the

Prosecution that there was a conspiracy, as hatched by A1 and

A2 along with A25 to A33 to avenge the police atrocity,

unleashed on the supporters of A.B.V.P. on 12.07.2000.

According to the Prosecution case, those persons had decided

to create fear and terror in the area on 13.07.2000. For this

purpose, the Court below mainly relied on the evidence of

PW68.

9. As far as the conspiracy is concerned, as already

noticed, it is alleged to have been hatched by A1 and A2 along

with A25 to A33. It was to destroy public properties and create

law and order problems in the area. In fact, the Prosecution

relied on the evidence of two witnesses to prove the offence of

conspiracy. They are PWs68 and 85. Among them, PW85 turned

hostile and his evidence serves no purpose as far as the

Cr.A.Nos.384/06, 385/06 & 1279/07 8

Prosecution case is concerned. Therefore, the offence of

conspiracy remained confined to the testimony of PW68.

10. The learned counsel for the appellants pointed out that

the story of conspiracy is a cooked up one, to suit the purpose of

the Prosecution. It is pointed out that PW68 was unworthy of

credit and is a planted, tutored and manipulated witness.

According to the learned counsel, a close reading of his

evidence, taken along with Ext.D23, will clearly reveal that he

has no regard for truth. The person describes himself as an

R.S.S. follower, while he is, in fact, a Marxist Party worker.

11. Going by the Prosecution case, the conspiracy was

hatched between 7.30 to 8 pm. on 12.07.2000. During the day

time on the said day, there was a protest procession taken out

by the followers of A.B.V.P. and it seems that the Police had

reacted harshly to them. In fact, it appears that lathi charge was

resorted to and tear gas was used. Some of the students were

seen to have received severe injuries. The Prosecution would

allege that the conspiracy was hatched at the Samskruti Bhavan,

where A1, A2 and A25 to A33 had gathered and decided the

future course of action to be carried out on 13.07.2000. The

Cr.A.Nos.384/06, 385/06 & 1279/07 9

one and only witness for the Prosecution in this regard is PW68.

His evidence, therefore, needs to be evaluated very carefully.

12. PW68 claims to be associated with R.S.S. He claimed

that he used to attend classes conducted for the workers of

R.S.S. On 12.07.2000, he says that he had gone to Samskruti

Bhavan. He also claimed that he used to go there frequently.

Samskruti Bhavan is situated behind the Fort high School. He

stated that he goes there to meet his friends and take books

from the Library to read. He then says that Samskruti Bhavan is

in the Devaswom Building, which is a huge building and the first

floor is occupied by the Samskruti Bhavan. According to him, the

said building also has the offices of Seva Bharathi, Vishwa Hindu

Parishat, Balagokulam etc. In the ground floor at the southern

end, is a temple. On 12.07.2000 in the evening, according to

this witness, when he reached the Library in Samskruti Bhavan,

there was no one there. But, he felt that there is some one in

that floor. He moved around and found a few people sitting in a

room and they were engaged in a discussion. There were eleven

of them. He says that they were familiar to him and identified

them as A1, A2 and A25 to A33 in Court also. It is interesting to

Cr.A.Nos.384/06, 385/06 & 1279/07 10

read what he heard at that place. He has deposed that he heard

them talking that on the next day i.e., on 13.07.2000, they should

take out a protest march against the Police, in the city. He then

heard them saying that they should force themselves into the

Secretariat, overcoming the resistance offered by the Police and

that would spark off police action again. According to this

witness, the persons present in the building decided to unleash

attacks and terror in the area. They decided to go to any extent,

to achieve their purpose. They decided to avenge the acts of the

Police on A.B.V.P. followers on 12.07.2000. PW68 would say

that after hearing this, he went to the Library. He maintains that

he is still a follower of R.S.S. The witnesses stated that he

decided to divulge information against the accused since he felt

that some of the so called workers in the R.S.S. like the

accused, were not really interested in the welfare of the

Organisation and they wanted to indulge in activities, detrimental

to the Organisation.

13. At the first blush, though the above claim of PW68

may appear to be true, on a close scrutiny of his evidence, it can

be seen that he is not a witness of truth. First of all, it is rather

Cr.A.Nos.384/06, 385/06 & 1279/07 11

inconceivable that a strong follower of R.S.S. or any political

party or organisation would speak so vociferously against the

other workers of the party, as has been done by PW68. His

claim of loyalty to the Organisation, is open to serious doubts. If

he had any intention to keep the Organisation clean, he could

have brought the illegalities committed by the workers to the

notice of the higher functionaries of R.S.S. in time. Probably, this

is one of the rarest of rare cases, where the Prosecution

ventures to adduce direct evidence regarding conspiracy.

Usually, it is virtually impossible to get direct oral evidence

regarding conspiracy for it is done in secrecy. So, the evidence

of PW68 appears to be doubtful. One cannot simply swallow that

being a follower and worker of RSS, he would speak against the

Organisation. PW68 stated that he has nothing to show that he

is an active worker of RSS.

14. One may recall that the evidence of PW68 is to the

effect that he happened to see A1, A2 and A25 to A33, indulging

in conspiracy, when he entered the Samskruti Bhavan. At one

point of time, he would say that Samskruti Bhavan is behind the

Fort High School and in another point of time, he would say that

Cr.A.Nos.384/06, 385/06 & 1279/07 12

it is in the Devaswom Building. Whatever that be, it has been

brought out in evidence that with regard to the incidents, which

took place on 12.07.2000, the Fort Police Station had registered

Crime No.260/00. Quite a few of the accused in this case figured

in that crime also. During the investigation of that crime, it seems

that the Investigating Officer PW50 examined in this case had

occasion to question PW68 and record his statement. He

speaks about the conspiracy there also. But, what is important is

that he gave a totally different version. There, his stand was that

while he had gone to the Samskruti Bhavan at 8’o clock in the

night on 12.07.2000, he had occasion to see a white

Ambassador car, parked by the side of the Fort High School.

He found a few persons going towards the car. There were

eleven of them. He identified those persons as A1, A2 and A25

to A33 in this case. He overheard them, planning to unleash

violence on the next day. He had no case at that time that he

had occasion to see these people conspiring about the acts to

be done, inside the Samskruti Bhavan building. It could then be

seen that there are two diametrically opposite versions by PW68,

regarding the very same incident. When PW68 was confronted

Cr.A.Nos.384/06, 385/06 & 1279/07 13

with the earlier statement given by him, he denied of having

made any such statement. Before PW50 also, who had occasion

to record his statement, was definite that PW68 stated as

recorded. The Court below was of the opinion that this

inconsistency is not of much significance, but we are unable to

concur with the Court below on the above aspect. We also feel

that the claim of PW68 that he is an ardent follower of R.S.S. is

open to serious doubts. It would appear from the nature of his

evidence and the way in which he has deposed that he is a

planted, tutored and manipulated witness, as claimed by the

defence. So, it may not be safe to infer conspiracy, based on

the solitary suspicious evidence of PW68. At any rate, there is

nothing to indicate that the conspiracy extended to causing the

murder of Rajesh. All that is tried to be established is that there

was a decision taken by the members of the R.S.S. to unleash

terror, create fright in the area and cause destruction to the

public properties. Whatever that be, the evidence of PW68 alone

is too brittle to come to a definite conclusion regarding

conspiracy.

Cr.A.Nos.384/06, 385/06 & 1279/07 14

15. The allegation of conspiracy has yet another aspect.

The Prosecution case is that A1 and A2, along with A25 to A33,

conspired to create terror in the area. However, in the incident

that happened on 13.07.2000, the said accused persons alone

were not involved. Various acts were committed by various

persons. The evidence in this case is that after the initial surge,

when Police offered resistance and resolved to take harsh steps

so as to disburse the mob, the protesters ran hither and thither .

Later, some of them converged at a particular spot. A few

among them made provoking speeches from there and then,

they branched off into groups and went from place to place,

causing destruction to public properties. So, there is nothing to

show that even assuming the first part is in furtherance of a

conspiracy, the latter part can have no such image. Even in the

first of the two incidents, a large number of people had

participated and one fails to understand as to how the

Prosecution could say that it was the result of a conspiracy.

16. What next arises for consideration is the murder of

Rajesh. Rajesh was working as a Conductor in the KSRTC. The

Court below, on an evaluation of the evidence before it, came to

Cr.A.Nos.384/06, 385/06 & 1279/07 15

the conclusion that A17 and A19 alone could be held

responsible for causing the injuries, which resulted in the death

of Rajesh. The State has come up in appeal against the said

finding. It wants to find several other accused also, along with

A17 and A19 equally liable for the murder of Rajesh, i.e.,

Accused Nos.25 to 33 and also some other accused persons.

According to the State, the acts, which resulted in the death of

Rajesh were in pursuance of the conspiracy hatched on the

previous day.

17. First of all, the offence of conspiracy has fallen to the

ground and therefore, that question does not arise for

consideration any more. Even assuming that there was a

conspiracy as alleged by the Prosecution, that was only for the

destruction of public property and there is nothing beyond that.

The conspiracy was only to create terror and fear in the area, as

a protest against Police acts and thereafter, to indulge in

destruction of public property. The conspiracy, even assuming to

be proved, was only to create as much trouble and destruction

as possible, in the area. In this scheme of things, the conspiracy

to murder Rajesh, does not fit in at all.

Cr.A.Nos.384/06, 385/06 & 1279/07 16

18. In Cr.A. No.385/06, A17 and A19 have challenged the

finding of offence of murder against them. One may recall that

they have been found guilty of the offence of murder punishable

under S.302 r/w 34 IPC.

19. The Prosecution seeks to prove that the death of

Rajesh was caused due to the acts of various protesters through

the evidence of PWs 1 to 12, 15 to 22, 27 to 29 etc. But,

unfortunately for the Prosecution, the evidence regarding this

aspect was furnished only by PWs 5, 6 and 8. The lower Court

have found their evidence to be acceptable. Before going into

that, it will be useful to consider the finding of the Court below in

this regard and to refer to the injuries suffered by Rajesh, the

victim.

20. Though CW84 was cited by the Prosecution to prove

the treatment given to Rajesh at Medical College Hospital, on

sustaining the injuries, the presence of CW84 could not be

procured. The treatment recorded was, therefore, proved

through PW83. The wound certificate of the deceased Rajesh,

prepared at the Medical College Hospital is Ext.P124. The Court

below has extracted the various injuries found on the body of

Cr.A.Nos.384/06, 385/06 & 1279/07 17

Rajesh, at the time of his admission in the Hospital. The Court

below, in fact, has also extracted the entries in the wound

certificate and the findings and opinion given in Ext.P76

postmortem certificate. It is therefore, unnecessary to reproduce

them in this Judgment. The opinion as to the cause of death of

Rajesh is the blunt injuries suffered on his head. PW56, who

conducted autopsy on the body of the deceased Rajesh, has

deposed that Injury Nos.1 and 2 are the cause of death and they

could well be caused by use of weapons like MOs 2 and 3.

21. PW56 had collected samples of various internal organs

of the deceased at the time of autopsy. Ext.P83 is the chemical

analysis report, which shows that the viscera examined showed

that it contained 57.5 mgs. of Ethyl Alcohol per 100 mg. of blood.

Based on the alcohol content so found, PW56 stated that the

victim would have been easily provoked and behaved violently.

There were as many as 15 to 18 injuries, found on the body of

the victim. The Prosecution allegation is that the injuries were

caused by A17 and A19 by using MOs 2 and 3 and the pelting of

stones by the other accused persons. Whatever that be, one fact

is very clear, i.e., the death of Rajesh was a homicidal.

Cr.A.Nos.384/06, 385/06 & 1279/07 18

22. While the State wants to make the other accused

persons also liable for the death of Rajesh, A17 and A19

assailed the finding of the Court below on several grounds. They

characterised PWs 5, 6 and 8 as stooges of the Marxist party.

According to them, they are planted and well tutored witnesses,

to depose against the accused persons.

23. PW5 claims to have been running an instant food stall

at Pazhavangadi. He runs his business, opposite to the

Ganapathy temple. He functions from 5 pm till 11 pm. According

to him, on the date of the incident, he had gone to the Civil

Supplies Corporation situated below the KSRTC Chief Office, to

buy articles for his business purposes. It was at about 12 in the

noon. He found a number of persons moving along the road,

causing destruction to the vehicles. Those miscreants were seen

smashing everything that came on their way. They had wooden

planks, iron pipes, sticks, stones etc. with them. They were

merciless on vehicles, which were parked on either side of the

road. He would say that he happened to hear some of the

employees of the K.S.R.T.C., asking the protesters to desist

from causing damages to the KSRTC buses. The reply was by

Cr.A.Nos.384/06, 385/06 & 1279/07 19

pelting of stones. One among the employees of the KSRTC had

a stone hit on his face and he fell down. He would claim that a

person by name, Sathar and another person, by name Ani, took

shelter near to him. He would say that then, he had occasion to

see one of the miscreants, beating the person, who had fallen on

the ground with a wooden plank. The victim cried out that he was

being killed. Frightened by this, the persons who were

accompanying the victim, ran away from the place. PW5 claims

that he had occasion to see the taller person among the

miscreants, hitting the victim with an iron rod. Thereafter, they

entered the garage and smashed the vehicles found there. He

would claim that he saw two persons coming out of the nearby

school and taking the victim, who had fallen on the ground to the

hospital in a tempo van. He identified MOs 2 and 3 as the

weapons used by the assailants. He identified A17 and A19 in

court. He also identified A9, A5, A3, A7 and A1 as persons, who

were along with A17 and A19. He was able to identify them in

the identification parade also.

24. PW6 is a headload worker by profession. On the date

of incident, he claims that he had gone to the Taluk Office for

Cr.A.Nos.384/06, 385/06 & 1279/07 20

purchasing a revenue form. When he reached Transport

Bhavan, he found about 10 to 25 persons, causing destruction to

the vehicles on the road. PW6 says that he got into the KSRTC

building. Two other persons were also there, frightened by the

acts of the miscreants. One of them was PW5 and the other was

Sathar. PW6 too would say that while the miscreants were

indulging in causing heavy damages to the KSRTC buses,

three of its employees asked them not to do so. Those persons

had come from the garage of the KSRTC. They were replied by

showering abuses by the miscreants, followed by pelting of

stones. One of the stones fell on the head of the victim and he

fell down. He too would depose that the victim was assaulted by

two persons, one with a wooden plank and the other with an iron

rod. The victim began to bleed. Some of the miscreants entered

the garage and smashed the vehicles found there. When PWs 5

and 6, who were waiting inside the building got down to the road,

they found two persons coming out of the nearby school and

going towards the victim. Initially, they were repelled by the

miscreants and so, they returned and came back later. He would

depose that he had gone near the victim. By that time, a few

Cr.A.Nos.384/06, 385/06 & 1279/07 21

employees of the KSRTC, had gathered near the victim and he

was taken to the Hospital in a tempo van. He also speaks about

the various illegal activities committed by the group of

miscreants. He too identified A17 and A19 in Court. He also

identified MOs 2 and 3. He was able to identify the clothes worn

by A17 and A19. But, he was unable to identify the particular

person, who had pelted stones on the victim and others.

25. PW8 was an employee of the KSRTC. At the relevant

time, he had duty from 9 am. to 5 pm. On the date of incident, he

came to the office at 9 am. He is a Blacksmith in the KSRTC.

Soon after he reached the Office, quite a few number of buses

were brought for repair. After completing the work of one of the

vehicles, he was on his way to have a cup of tea, when he found

persons coming inside the office in the garage of the KSRTC.

Consequent to that, an Officer of the KSRTC, who was on duty

on the said date, asked PW8 to accompany him to see what was

happening outside. When they got out, they found about 20-25

persons, fully armed with weapons, causing destruction to the

KSRTC buses. He would depose that three persons came out of

the garage of the KSRTC building and requested the protesters

Cr.A.Nos.384/06, 385/06 & 1279/07 22

to desist from their activities. They were showered with abuses,

followed by pelting of stones. One of the stones hit Rajesh on

his face and he fell down. Three persons, who were then

accompanying Rajesh, found the situation bad and they ran back

to the KSRTC office. PW8 would depose that one of the

miscreants was seen hitting Rajesh with a wooden plank. That

caused a bleeding injury on Rajesh. PW8 would also depose

that he had occasion to see another person, hitting the victim

with an iron rod. Rajesh began to bleed heavily. According to

the evidence of this witness, the miscreants then entered the

garage and caused considerable damage to the vehicles found

there. After they left the garage, he says, he came into the

KSRTC building. On being requested, PW8 would depose that,

he along with an Officer of the KSRTC, took Rajesh to the

Medical College Hospital in a tempo van.

26. Several criticisms are levelled against the acceptance

of the evidence of the above witnesses. It is pointed out that it

can be very easily seen that PWs 5, 6 and 8 are procured

witnesses to suit the convenience of the Prosecution. A careful

scrutiny of their evidence will show that the place of occurrence

Cr.A.Nos.384/06, 385/06 & 1279/07 23

has been shifted to make it possible for PWs 5 and 6 to see the

incident. It is also pointed out that there was considerable

disparity and inconsistency in the identification made by the

witnesses in Court and during the investigation stage. It is

contended that the report prepared by PW84, furnishing the

names of A17 and A19 was filed in Court, long after the crime

was registered and that shows that they were subsequently

implicated. It is contended that PWs 5 and 6 are chance

witnesses and their evidence could not be accepted. One of the

contentions was that the claim of PW5 that he had come to the

Civil Supplies Corporation in the city, near the KSRTC bus

stand, cannot be accepted, because, there is another Civil

Supplies shop, very near to his place of business and therefore,

it is virtually inconceivable that he could have come to the place

as stated by him.

27. The said criticisms are without any basis. It is not

necessary for PW5 to go to the shop, which is near his place of

business. He may have several reasons for not doing so. But,

the question is whether he could have been present at the scene

and he could have seen the incidents. PW5 has given his

Cr.A.Nos.384/06, 385/06 & 1279/07 24

testimony in which, he has also identified A17 as the person,

who carried an iron pipe and A19 as the one, who was standing

with a wooden reaper. Merely because the Civil Supplies shop is

not near to his place of business, it will be too harsh to say that

PW5 should be disbelieved. The evidence of PW6 is to the

effect that he came to the place of incident as he was on his way

to purchase a revenue form for getting a revenue card. He too

had identified A17 and A19 and the weapons they had with

them.

28. It is true that the evidence of PW8 is not fully in favour

of the Prosecution. Though, he says that one person by name

Rajesh was hit with an iron reaper, he did not identify the

assailants in Court. But, his evidence reliably shows that quite a

few persons entered the garage from the nearby school and the

employees of the KSRTC had asked the miscreants, not to

damage the vehicles. Soon thereafter, the pelting of stones

started. He identified A1, A2, A9, A11, A18 and A20 as persons,

who were in the group of assailants and who had come into the

garage. PWs 5 and 6 have given clear reasons for their

presence at the place of incident. It has to be noticed that

Cr.A.Nos.384/06, 385/06 & 1279/07 25

considering the nature of the acts committed by the assailants

and also the place and the manner, in which they were

committed, it could not be stated that PWs 5 and 6 are procured

witnesses. As far as PW8 is concerned, he is a Black Smith,

attached to the KSRTC.

29. Regarding the contradiction in the identification, it is by

now, well settled that the identification in Court is the substantive

evidence. The identification during the investigation is only to

enable the Investigating agency to be sure of the way, they are

proceeding and it has nothing to do with the identification in

Court. Probably, one could say that if two identifications tally with

each other, the identification in Court may be held to have

gained support from the identification during investigation also.

But, the mere fact that there is some difference in the

identification in Court and the one made during the investigation,

by itself is not enough to discard the identification made by the

witnesses in Court.

30. Emphasis was also laid on the fact that there were

some inconsistencies and contradictions regarding the overt acts

attributed to A17 and A19, as spoken to by the witnesses. It is

Cr.A.Nos.384/06, 385/06 & 1279/07 26

unnecessary to give undue importance to such minor or

insignificant inconsistencies. One has to remember that it was a

mob attack and it was not possible for the witnesses to speak on

the exact words/acts by each one of the members of the

unlawful group. Whatever it may be, the fact remains that

Rajesh was assaulted with an iron pipe and wooden reaper and

he suffered injuries in that process. It is also clear from the

evidence that at least two persons in the unlawful group did

carry an iron rod and a wooden reaper. Persons have been

identified by the witnesses as A17 and A19.

31. As far as PW8 is concerned, he was unable to identify

A17 and A19 in Court. As already noticed, to that extent, his

evidence is of no use to the Prosecution. But, his evidence

stands, as regards the destruction caused to the KSRTC buses

and also the attack made on Rajesh. To that extent, he

corroborates other witnesses.

32. The allegation that there has been a conscious shifting

of the place of incident, to enable PWs 5 and 6 to see the

incident, is not justified at all. It is true that PW2, at the time of

giving the First Information Statement, namely, Ext.P6, had

Cr.A.Nos.384/06, 385/06 & 1279/07 27

stated that Rajesh had sustained injuries at the office compound

of the KSRTC depot. But, on a close scrutiny of the evidence, it

can be seen that it may not be fully correct. PW78, had

prepared a scene mahazar earlier and later, another scene

mahazar was prepared by PW84. One has to notice that the

incident was not confined to a specific place and it was spread

over an area. Therefore, to say that merely because a specific

spot has been pointed out in one of the scene mahazars, the

evidence of PWs 5 and 6 should be discarded, is too far-fetched.

Even though PWs 5 and 6 have been characterised as stooges

of the Marxist party, the defence has not been able to establish

the same. An attempt was made from the side of the defence

through DW2 to save A17. The Court below has discussed the

evidence of the said witness in detail and has come to the

conclusion that it is only a cooked up story.

33. It is significant to notice that the acts of A17 and A19

are not confined to the evidence of PWs, 5, 6 and 8. The

Prosecution has proved the recovery of MOs 2 and 3 and the

clothes said to have been worn by A17 and A19 at the time of

the incident.

Cr.A.Nos.384/06, 385/06 & 1279/07 28

34. PW34 was a Black Smith working at the

Pappanamcode Central Works. On the date of the incident, he

stated that he was standing at the Kallummoodu Junction for

taking a bus to his place of work. Then, he happened to see a

group of persons, comprised of 20 individuals, armed with

banners, wooden reapers etc. He claims to have then seen A17

with a iron rod and A19 with a wooden reaper. However, in

Court, he was unable to properly identify A19. It could not be

said that the evidence of this witness fully supports the case of

the Prosecution. But, to a certain extent, it corroborates the other

witnesses.

35. PWs 49 and 54 were examined by the Prosecution to

prove the recovery of MOs 2, 3, 4 and 5. According to the

Prosecution, on being arrested and questioned by PW84, two

weapons and the respective dresses worn by A17 and A19 were

recovered on the basis of the confession statements given by

them. PW49 is an attester to Ext.P67 mahazar by which MOs3

and 5 were recovered and PW54 is an attester to Ext.P74 by

which MO2 was recovered.

Cr.A.Nos.384/06, 385/06 & 1279/07 29

36. It is seen that the recovery of MO3 iron pipe and MO5

series of dress was made on the basis of the confession

statement stated to have been given by A17, under Exts.P67 (a)

and (b) mahazars. According to the Prosecution, A17 had

produced the iron pipe, namely, MO3 from the south eastern

corner of the roof of the house, bearing No.TC72/2289 near

Ponnara School and the clothes, namely, MO5 series were

recovered from the southern room of the house. Ext.P67 is the

seizure mahazar, under which, they were seized. PW1 speaks

about the recovery of articles at the behest of A17 and he has

also explained the occasion for him to reach the place.

According to the evidence, A19 produced MO4 series of dress

from an almirah kept in the room in the house bearing

No.TC72/2542. He produced MO2 reaper, which was hidden in

the wall of the house. They were seized under Ext.P74 seizure

mahazar. Even though PWs 49 and 54 were cross examined at

length, no dent could be made in their evidence. The attempt

was to show that they were CITU members and have been

deliberately implanted to speak against the accused. There

were several suggestions thrown at them in this regard. It is true

Cr.A.Nos.384/06, 385/06 & 1279/07 30

that at some point of time, they showed some allegiance to

CITU. In fact, one of them admitted to be a member of CITU. It

is also true that one of them was involved in criminal cases also.

But, there was nothing to suspect the evidence of PWs 49 and

54, because of the above reasons. At any rate, there is no such

infirmity or stigma attached to those witnesses and there is no

reason as to why their evidence should not be accepted.

37. There is thus, convincing evidence to show that A17

had an iron rod and A19 had a wooden reaper, with them. The

evidence also disclosed that they had used it on Rajesh and

caused injuries on him. There is also evidence to show that

Rajesh had finally succumbed to those injuries. Of Course,

Rajesh had suffered other injuries also.

38. At this point of time, it may be useful to consider the

appeal filed by the State in this regard. The State points out that

the Court below was not justified in confining the offence

punishable under S.302 read with S.34 IPC to A17 and A19 only.

According to them, the acts of A17 and A19 were in furtherance

of the conspiracy hatched on 12.07.2000. At the time of

commission of the offences by A17 and A19, the other accused

Cr.A.Nos.384/06, 385/06 & 1279/07 31

persons, namely, A1, A2 and A4 to A33 were also present at the

place. The State would point out that if the other accused had no

role to play, they would have discouraged A17 and A19 from

going on with their acts. The fact that they had not so

discouraged A17 and A19, shows their involvement also in the

crime, it is pointed out. Though, the argument may look very

attractive, it is without any substance at all. First of all, the

conspiracy theory has been found against. There is nothing to

show that the other accused persons, along with A17 and A19,

had shared any common object or common intention to cause

any harm to Rajesh. It must be remembered that it was the

result of spontaneous reactions on the part of A17 and A19,

when resistance was offered by some of the employees of the

KSRTC in the garage. None of the accused could anticipate that

such a thing would happen. Apart from that, in a mob fury, if one

of them without any pre-meditation or pre-determination, causes

an injury to any person, it may not be possible to hold the entire

mob liable for the act done by the said person. Of course, the

State would say that it is not necessary that all the persons

indulged in the act, should be fully aware of the conspiracy etc.

Cr.A.Nos.384/06, 385/06 & 1279/07 32

But, that position does not arise for consideration in this case at

all. Therefore, the decisions cited by the State, need not be

gone into in detail.

39. Of course, the State in its appeal, would also say that

there was exhortation from the part of several other accused

persons to kill Rajesh and it was in furtherance of that

exhortation that the attack was made by A17 and A19. Except

for the self-proclamation by the State, there is no evidence in

this regard to show that there were any such acts by the

members of the mob. It must be remembered here that there is

some evidence to show that some of the employees, who

wanted to resist the protesters from causing destruction to the

vehicles, in fact, had weapons, in the nature of tools, with them.

May be apprehending trouble, A17 and A19 had acted in the

manner as they did. But to say that it was in furtherance to either

a common object or common intention, is too imaginative and

uncalled for. So, the contention of the State that A1, A2 and A25

to 33 should also be found along with A17 and A19, guilty under

the offence punishable under S.302 read with S.34 IPC, cannot

be accepted.

Cr.A.Nos.384/06, 385/06 & 1279/07 33

40. It must also be noticed that Rajesh had sustained

injuries, as a result of pelting of stones also. There is nothing to

indicate that A17 and A19 had inflicted repeated blows with the

iron rod and the wooden reaper, on Rajesh. The question as to

what are the offences committed by those persons, will be

considered a little later.

41. What next comes up for consideration, is the finding

regarding the guilt of various accused persons with reference to

the offences punishable under Ss.143, 147 and 148 IPC and S.3

(2)(e) of the PDPP Act. There cannot be much dispute

regarding the fact that considerable damages were caused by

the protesters in the incident that happened on 13.07.2000. As

many as 86 KSRTC buses suffered considerable damages and

the window panes of several buildings were shattered. The

Court below has considered the evidence in detail and has come

to the conclusion that some of the accused persons, who have

indulged in the acts, have caused destruction to the public

property. The Court below has, in paragraph 32 of the Judgment,

mentioned the details regarding the destruction caused to the

vehicles. Unfortunately for the Prosecution, it was not able

Cr.A.Nos.384/06, 385/06 & 1279/07 34

establish that the miscreants had caused damage or destruction

to any of the assets other than the KSRTC buses.

42. Except for minor damage caused to the roof sheets of

some vacant sheds, the Prosecution was unable to prove

anything else with regard to the destruction caused to the

building of the KSRTC. For the purpose of proving the

destruction to the buses, reliance was placed on the evidence of

PWs 5,6, 8, 31 and 33. The evidence of PW5, 6 and 8 have

already been referred to. PWs 5, 6 and 8 have identified some

of the miscreants. The evidence of PW33 is to the effect that on

the date of incident, at about 12 in the noon, when he reached

the eastern gate of Chief Office through the Taluk Office Road,

he saw a group of persons coming in procession along the road,

causing damage to the vehicles on either side of the road.

According to him, there were about 40 persons in the

procession. Apart from smashing the vehicles, they were also

seen pelting stones. But, his identification in court was confined

only to some of the accused. His identification during the

investigation is of no consequence. In fact, he was a Mechanic

Cr.A.Nos.384/06, 385/06 & 1279/07 35

in the KSRTC, working in the Thiruvananthapuram City Depot.

PW31 was the Manager (Maintenance and Works) in the

KSRTC Chief Office during the relevant period. He was present

in office when the incident occurred. He found to his dismay a

few persons indulging in smashing KSRTC buses, which were

parked in the Vazhapally Road in front of the Transport Bhavan.

After the trouble was over, he along with the Works Manager,

went to the place and was satisfied that considerable damage

was caused to the vehicles. He obtained a detailed report

regarding the damage caused to the buses and as per the

direction given by the Mechanical Engineer and the Executive

Director, he submitted a report, assessing the actual cost of the

damage caused to the buses for submitting it before the

Managing Director. That is what is extracted in the Judgment of

the Court below. The Court below has considered the evidence

of various witnesses in this regard and has also taken pains to

identify the miscreants, who had indulged in wanton activities. It

is unnecessary to repeat those items of evidence and it is

already noticed that no one can dispute that considerable

damage and destruction had been caused to KSRTC vehicles.

Cr.A.Nos.384/06, 385/06 & 1279/07 36

43. It is significant to notice that several KSRTC

employees had suffered injuries in the incident. But, for want of

proper evidence in this regard, the Prosecution was unable to fix

liability on any of the accused. The Court below has made its

finding regarding the offence punishable under Ss.143, 147 and

148 IPC and S.3(2)(e) of the PDPP Act, based on the

identification of the various witnesses in court. The matter has

been dealt with elaborately by the Court below. It is idle for the

appellants to say that there was no proper identification and so,

it was not possible to say, who had caused obstruction to the

KSRTC buses. Moreover, when a group of persons cause

damage to public properties, each one of that illegal group will

be held liable for the acts of the other members in the group

also.

44. One cannot dispute that there was an unlawful

assembly and that they had indulged in rioting. Most of them had

weapons with them and the Court below has sought to cast

liability on those accused persons, who were identified before

Court. Obviously, the acts committed by those persons can be

treated to be only in furtherance of the common object of

Cr.A.Nos.384/06, 385/06 & 1279/07 37

causing destruction and creating terror in the area. It is idle for

the appellants to contend that the finding in this regard is

incorrect or illegal.

45. Now, what remains to be considered is the offence that

is alleged to have been committed by A17 and A19. It has

already been noticed that there was no pre-determination or pre-

meditation in their acts. It was a spontaneous act, arising out of

the circumstances disclosed by the evidence in this case. There

is nothing to show that they had inflicted repeated blows on

Rajesh with the weapons, they were alleged to possess. The

fact remains that the blows were inflicted on the head of Rajesh.

There is nothing to indicate that there was any intention to cause

the death of Rajesh. It has to be remembered that after Rajesh

had fallen on the ground, the accused left without inflicting too

many blows and at a later stage, Rajesh succumbed to the

injuries sustained by him. It is too difficult to come to the

conclusion that A17 and A19 had the intention to do away with

Rajesh. They may have caused bleeding injuries to Rajesh and

they may be inflicted injuries to his body. But, that by itself is not

sufficient to hold that those persons are guilty of the offence of

Cr.A.Nos.384/06, 385/06 & 1279/07 38

murder. There is nothing to show that they had any intention to

cause the death of Rajesh or to inflict such injury, which they

knew, will cause the death of Rajesh. On an evaluation of the

evidence with regard to this aspect, it is felt that it will be

appropriate to find those persons guilty of the offence punishable

under S.326 IPC only. One may say that the finding regarding

the person liable for causing destruction to the KSRTC buses

and also the offences under the P.D.P.P. Act and I.P.C. covered

by those acts, no interference is called for.

46. The State in its appeal, has stated that the sentence

imposed on the accused persons for the various offences

committed by them, are inadequate. It has to be stated that there

is some substance in the above complaint with reference to the

offence punishable under S.3(2)(e) of the PDPP Act. The

menace of causing destruction to the public property has been

on the increase in recent times and the miscreants are able to

go scot-free for various reasons. In fact, it is felt that this attitude

should be discouraged and if found guilty, severe punishments

should be imposed on them. But, in this case, considering the

fact that the incidents which gave rise to this case occurred in

Cr.A.Nos.384/06, 385/06 & 1279/07 39

the year 2000, at this distance of time, it may not be proper and

justifiable to enhance the sentences in this regard. In the result,

I. Cr. A. Nos.384 and 385 of 2007, are disposed of as follows :

(a) The conviction and sentence imposed on A17 and A19 for

the offence punishable under S.302 r/w S34 IPC are set aside

and they are found guilty of the offence punishable under S.326

r/w S.34 IPC and each of them is sentenced to suffer rigorous

imprisonment for seven years and to pay a fine of Rs.30,000/-

each, in default of payment of which, they shall be sentenced to

rigorous imprisonment for two years. If the fine amounts are

released, a sum of Rs.55,000/- (Rupees Fifty Thousand only)

shall be given to the legal heirs of Rajesh.

(b) A1 to A7 and A25 to A33 are acquitted of the charges under

S.120B r/w S.3(2)(e) of the PDPP Act.

(c) The conviction and sentence of A1 to A7, A9 to A12, A14,

A16 to A19 for the offences punishable under Ss.143, 147, 148

IPC, S.3(2)(e) of the PDPP Act r/w S.149 IPC are upheld and

confirmed.

Cr.A.Nos.384/06, 385/06 & 1279/07 40

(d) The conviction and sentence of A1, A2 and A25 to A33 for

the offences punishable under Ss.109 and 111 IPC are set aside

and they stand acquitted of the said offences.

(e) The bail bonds of those persons, who are on bail and who

have been acquitted of all charges, shall stand cancelled and

they are set at liberty. Set off as per law will be allowed.

(f) Those persons, who are on bail and who are convicted and

sentenced for various offences under this Judgment, shall

surrender before the Trial Court for undergoing sentence.

II. Cr. A. No.1279/07 stands dismissed.

K.BALAKRISHNAN NAIR, JUDGE

P.BHAVADASAN, JUDGE

sta

Cr.A.Nos.384/06, 385/06 & 1279/07 41

K.BALAKRISHNAN NAIR, &
P.BHAVADASAN, JJ.

=============================
Cr.A.Nos.384 & 385 of 2006 &
1279 of 2007
=============================

JUDGMENT

DATED 14TH JANUARY 2010
=============================

Cr.A.Nos.384/06, 385/06 & 1279/07 42

Cr.A.Nos.384/06, 385/06 & 1279/07 43