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