{"id":135656,"date":"2010-01-14T00:00:00","date_gmt":"2010-01-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gireesan-nair-vs-state-of-kerala-on-14-january-2010"},"modified":"2015-04-12T08:42:06","modified_gmt":"2015-04-12T03:12:06","slug":"gireesan-nair-vs-state-of-kerala-on-14-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gireesan-nair-vs-state-of-kerala-on-14-january-2010","title":{"rendered":"Gireesan Nair vs State Of Kerala on 14 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Gireesan Nair vs State Of Kerala on 14 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 384 of 2006()\n\n\n1. GIREESAN NAIR, S\/O.GOPALAN PILLAI,\n                      ...  Petitioner\n2. PADMAKUMAR, S\/O.GOPINATHAN NAIR,\n3. CHANDRAMOULI @ RAMESH,\n4. ANAND MOHAN, S\/O. MOHAN KUMAR,\n5. PRAVEEN KUMAR, S\/O. MOHANAN NAIR,\n6. SHINU KUMAR @ VISHNU, S\/O.VELAYUDHAN,\n7. MURALI, S\/O. GOPALAKRISHNAN,\n8. RAJU, S\/O. MOHANAKUMARAN NAIR,\n9. VIJAYESH, S\/O. RAJAN,\n10. SANTHOSH KUMAR @ SANTHOSH,\n11. VINOD @ MANU, S\/O. VIKRAMAN,\n12. SUDHARSANAN, S\/O.BALACHANDRAN NAIR,\n13. VIJAYAKUMAR @ BIJU @ POODAN,\n14. UMAKANTHAN, S\/O. ACHUTHAN NAIR,\n15. JAYAKUMAR, S\/O.MURALEEDHARAN NAIR,\n16. RAJASEKHARAN, S\/O.KRISHNAPILLAI,\n17. RAJ KUMAR @ RAJAN,\n18. RAVIKUMAR, S\/O. VASUDEVAN NAIR,\n19. ARUNKUMAR @ MAHESHWARAN,\n20. SUDHAKARAN, S\/O.PARAMESWARAN NAIR,\n21. MANIKANTAN, S\/O. DAMODARAN NAIR,\n22. SISUPALAN @ SISUPALJI,\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.VIJAYA BHANU\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :14\/01\/2010\n\n O R D E R\n<\/pre>\n
         K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.\n<\/p>\n
        ——————————————————————\n<\/p>\n
                 Cr. A. Nos.384\/06, 385\/06 & 1279\/07\n<\/p>\n
        ——————————————————————\n<\/p>\n
                        Dated 14th January 2009<\/p>\n
                                  Judgment<\/p>\n
Bhavadasan, J.\n<\/p>\n
      Thirty three persons were prosecuted for the offences<\/p>\n
punishable under Ss.120B, 143, 147, 148, 324, 427, 506, 302<\/p>\n
r\/w 149 IPC and Ss.109, 111 IPC and S.3(2)(e) of the<\/p>\n
Prevention of Damages to Public Property Act, 1984 (hereinafter<\/p>\n
referred to as the PDPP Act). Accused Nos.8, 13, 15 and 20 to<\/p>\n
24 were found not guilty of any of the offences and were<\/p>\n
acquitted of the charges. Accused Nos.17 and 19 were found<\/p>\n
guilty of the offences punishable under S.302 r\/w 34 IPC.<\/p>\n
Accused Nos.1 and 2, along with A25 to A33 were found guilty<\/p>\n
of the offence punishable under S.120B r\/w S.3(2)(e) of the<\/p>\n
PDPP Act. A1 to A7, A9 to A12, A14 and A16 to A19 were<\/p>\n
found guilty of the offences punishable under S.143 IPC. The<\/p>\n
said accused were found guilty of the offences punishable under<\/p>\n
Ss.147 and 148 as well. The accused persons, who were found<\/p>\n
guilty of various offences, were sentenced to various terms of<\/p>\n
imprisonment.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  2<\/p>\n
      2. The Prosecution case, in brief, is as follows :<\/p>\n
      The Government of Kerala decided to de-link Pre-degree<\/p>\n
course from the colleges and to start Plus-two course at the<\/p>\n
School level. There were protests from various quarters and the<\/p>\n
A.B.V.P., one of the students organisations in Kerala, on<\/p>\n
12.07.2000, launched a protest march against the policy<\/p>\n
adopted by the Government. It is stated that the Police were<\/p>\n
harsh on them and several protesters, including girl students<\/p>\n
were injured. The Prosecution case is that infuriated by the said<\/p>\n
conduct of the Police, the office bearers of the A.B.V.P. and<\/p>\n
allied organisations decided to launch a strong protest on<\/p>\n
13.07.2000, by causing destruction to public property and<\/p>\n
trespass into the Government Secretariat.         The case of the<\/p>\n
Prosecution is that on 13.07.2000, the protesters belonging to<\/p>\n
the A.B.V.P., armed with deadly weapons, marched to the<\/p>\n
Secretariat. When the Police prevented them from entering the<\/p>\n
Secretariat, they became violent. They caused damage to<\/p>\n
several of the K.S.R.T.C. buses and some of them went inside<\/p>\n
the garage of the K.S.R.T.C.         A few employees of the<\/p>\n
K.S.R.T.C. reacted to the acts committed by the students and<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   3<\/p>\n
they tried to repel them. In that process, Rajesh, a Conductor of<\/p>\n
the K.S.R.T.C., received blows from A17 and A19, to which, he<\/p>\n
later succumbed. The further allegation is that the students went<\/p>\n
berserk and caused considerable damages to the public<\/p>\n
properties, including 86 Nos. of K.S.R.T.C. buses.<\/p>\n
      3. Rajesh, the injured was admitted in the Medical College<\/p>\n
Hospital, Thiruvananthapuram.       On getting information about<\/p>\n
the same, PW72, a Head Constable, attached to the Fort Police<\/p>\n
Station reached the Hospital and found that Rajesh was in a<\/p>\n
critical stage. Therefore, he recorded the F.I. statement Ext.P6<\/p>\n
given by PW2, another employee of the KSRTC, who was<\/p>\n
waiting outside the I.C.U. wing of the Medical College Hospital.<\/p>\n
He also prepared Ext.P6(b) body note of the injured. On the<\/p>\n
basis of Ext.P6 F.I. statement,      Crime No.261\/2000 for the<\/p>\n
offences punishable under Ss.143, 147, 148, 307 r\/w 149 IPC<\/p>\n
and S.3(2)(e) of the PDPP Act and Ss.3 and 5 of the Explosive<\/p>\n
Substances Act, 1908 and Ext.P6(a) F.I.R. were registered. The<\/p>\n
investigation was taken over by PW78, the then Circle Inspector<\/p>\n
of Police, Fort Police Station. On the same day, he received<\/p>\n
reliable information that some of the accused persons involved in<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  4<\/p>\n
Crime No.260\/2000 of the Fort Police Station had gone to the<\/p>\n
Karyalaya of the R.S.S., carrying weapons. PW78, therefore,<\/p>\n
prepared Ext.P98 search memo and searched the Karyalaya.<\/p>\n
He found A1 to A6 there and arrested the said accused persons.<\/p>\n
He also recovered several weapons from there. Later, PW78 got<\/p>\n
information that some other accused persons, who were<\/p>\n
involved in the crime, were standing near Sreevaraham pond<\/p>\n
and he arrested A7 to A21 from there. On 14.07.2000, he<\/p>\n
inspected the scene of occurrence, prepared Ext.P91 scene<\/p>\n
mahazar and seized the materials found there. He submitted<\/p>\n
Ext.P100 report to the court, furnishing the names and<\/p>\n
addresses of A1 to A16. He recorded the statement of<\/p>\n
witnesses. Subsequently, the investigation was taken over by<\/p>\n
PW76, as per Ext.P95 order of the D.I.G., Thiruvananthapuram.<\/p>\n
In the meanwhile, Rajesh succumbed to his injuries and<\/p>\n
therefore, PW78 went to the Medical College Hospital,<\/p>\n
conducted inquest over the body of Rajesh and Ext.P55 inquest<\/p>\n
report was prepared. The body was then, sent for autopsy.<\/p>\n
PW56, the Forensic Surgeon conducted autopsy on the body of<\/p>\n
Rajesh and prepared Ext.P76 postmortem certificate. Later, a<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07    5<\/p>\n
report was filed before the Court to incorporate S.302 IPC in the<\/p>\n
charge. All the accused were arrested, investigation was<\/p>\n
completed and charge was laid before Court.\n<\/p>\n
      4.   The     Judicial    First Class Magistrate’s   Court-II,<\/p>\n
Thiruvananthapuram, before whom, the final report was laid,<\/p>\n
took cognizance of the offences.          On appearance of the<\/p>\n
accused before Court, necessary legal formalities were complied<\/p>\n
with and on finding that the offences were exclusively triable by a<\/p>\n
Court of Sessions, the learned Magistrate committed the case to<\/p>\n
the Sessions Court, Thiruvananthapuram. The latter Court, for<\/p>\n
speedy disposal, made over the case to the Additional District<\/p>\n
and Sessions Judge (Fast Track) Court-I, Thiruvananthapuram.<\/p>\n
The said Court, on receipt of the records, issued summons to<\/p>\n
the accused. They entered appearance and after hearing both<\/p>\n
sides, the Court below framed charges against the accused. To<\/p>\n
the charges, the accused pleaded not guilty and claimed to be<\/p>\n
tried. The Prosecution, therefore, examined PWs1 to 85 and<\/p>\n
marked Exts.P1 to P134. MOs 1 to 27 were also got identified<\/p>\n
and marked. After the close of the evidence, the accused were<\/p>\n
questioned under S.313 Cr.P.C.They denied all the incriminating<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  6<\/p>\n
circumstances brought out in evidence against them and<\/p>\n
maintained that they were innocent. Finding that the accused<\/p>\n
could not be acquitted under S.232 Cr.P.C., they were called<\/p>\n
upon to enter on their defence. From the defence side, three<\/p>\n
witnesses DWs 1 to 3 were examined and exhibits D1 to D24<\/p>\n
were also marked.\n<\/p>\n
      5. The Court below, on an appreciation of the evidence in<\/p>\n
the case, found that offences have been established against<\/p>\n
some of the accused as already mentioned. Therefore,<\/p>\n
conviction and sentence, with regard to those offences, followed.<\/p>\n
They are assailed in these Appeals.\n<\/p>\n
      6. Cr.A.No.384\/06 is filed by A1 to A7, A9, A14, A16 to A19<\/p>\n
and A25 to A33. Cr. A. No.385\/06 is filed by A10, A11 and A12<\/p>\n
and Cr.A. No.1279\/07 is filed by the State of Kerala.<\/p>\n
      7. The question that arises for consideration in the appeals<\/p>\n
filed by the accused is whether the Court below was justified in<\/p>\n
finding that the Prosecution case is true and whether the<\/p>\n
acquittal of some of the accused is justified or not, is the point to<\/p>\n
be decided in the appeal filed by the State.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  7<\/p>\n
      8. The Prosecution builds up its case on three aspects,<\/p>\n
namely,<\/p>\n
      (1) Conspiracy to commit various offences,<\/p>\n
      (2) Causing death of Rajesh &<\/p>\n
      (3) Destruction of public property.\n<\/p>\n
The Court below was inclined to accept the case of the<\/p>\n
Prosecution that there was a conspiracy, as hatched by A1 and<\/p>\n
A2 along with A25 to A33 to avenge the police atrocity,<\/p>\n
unleashed on the supporters of A.B.V.P. on 12.07.2000.<\/p>\n
According to the Prosecution case, those persons had decided<\/p>\n
to create fear and terror in the area on 13.07.2000. For this<\/p>\n
purpose, the Court below mainly relied on the evidence of<\/p>\n
PW68.\n<\/p>\n
      9. As far as the conspiracy is concerned, as already<\/p>\n
noticed, it is alleged to have been hatched by A1 and A2 along<\/p>\n
with A25 to A33. It was to destroy public properties and create<\/p>\n
law and order problems in the area. In fact, the Prosecution<\/p>\n
relied on the evidence of two witnesses to prove the offence of<\/p>\n
conspiracy. They are PWs68 and 85. Among them, PW85 turned<\/p>\n
hostile and his evidence serves no purpose as far as the<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07    8<\/p>\n
Prosecution case is concerned. Therefore, the offence of<\/p>\n
conspiracy remained confined to the testimony of PW68.<\/p>\n
      10. The learned counsel for the appellants pointed out that<\/p>\n
the story of conspiracy is a cooked up one, to suit the purpose of<\/p>\n
the Prosecution. It is pointed out that PW68 was unworthy of<\/p>\n
credit and is a planted, tutored and manipulated witness.<\/p>\n
According to the learned counsel, a close reading of his<\/p>\n
evidence, taken along with Ext.D23, will clearly reveal that he<\/p>\n
has no regard for truth. The person describes himself as an<\/p>\n
R.S.S. follower, while he is, in fact, a Marxist Party worker.<\/p>\n
      11. Going by the Prosecution case, the conspiracy was<\/p>\n
hatched between 7.30 to 8 pm. on 12.07.2000. During the day<\/p>\n
time on the said day, there was a protest procession taken out<\/p>\n
by the followers of A.B.V.P. and it seems that the Police had<\/p>\n
reacted harshly to them. In fact, it appears that lathi charge was<\/p>\n
resorted to and tear gas was used. Some of the students were<\/p>\n
seen to have received severe injuries. The Prosecution would<\/p>\n
allege that the conspiracy was hatched at the Samskruti Bhavan,<\/p>\n
where A1, A2 and A25 to A33 had gathered and decided the<\/p>\n
future course of action to be carried out on 13.07.2000.       The<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  9<\/p>\n
one and only witness for the Prosecution in this regard is PW68.<\/p>\n
His evidence, therefore, needs to be evaluated very carefully.<\/p>\n
       12. PW68 claims to be associated with R.S.S. He claimed<\/p>\n
that he used to attend classes conducted for the workers of<\/p>\n
R.S.S. On 12.07.2000, he says that he had gone to Samskruti<\/p>\n
Bhavan. He also claimed that he used to go there frequently.<\/p>\n
Samskruti Bhavan is situated behind the Fort high School. He<\/p>\n
stated that he goes there to meet his friends and take books<\/p>\n
from the Library to read. He then says that Samskruti Bhavan is<\/p>\n
in the Devaswom Building, which is a huge building and the first<\/p>\n
floor is occupied by the Samskruti Bhavan. According to him, the<\/p>\n
said building also has the offices of Seva Bharathi, Vishwa Hindu<\/p>\n
Parishat, Balagokulam etc. In the ground floor at the southern<\/p>\n
end, is a temple. On 12.07.2000 in the evening, according to<\/p>\n
this witness, when he reached the Library in Samskruti Bhavan,<\/p>\n
there was no one there. But, he felt that there is some one in<\/p>\n
that floor. He moved around and found a few people sitting in a<\/p>\n
room and they were engaged in a discussion. There were eleven<\/p>\n
of them. He says that they were familiar to him and identified<\/p>\n
them as A1, A2 and A25 to A33 in Court also. It is interesting to<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  10<\/p>\n
read what he heard at that place. He has deposed that he heard<\/p>\n
them talking that on the next day i.e., on 13.07.2000, they should<\/p>\n
take out a protest march against the Police, in the city. He then<\/p>\n
heard them saying that they should force themselves into the<\/p>\n
Secretariat, overcoming the resistance offered by the Police and<\/p>\n
that would spark off police action again. According to this<\/p>\n
witness, the persons present in the building decided to unleash<\/p>\n
attacks and terror in the area. They decided to go to any extent,<\/p>\n
to achieve their purpose. They decided to avenge the acts of the<\/p>\n
Police on A.B.V.P. followers on 12.07.2000. PW68 would say<\/p>\n
that after hearing this, he went to the Library. He maintains that<\/p>\n
he is still a follower of R.S.S. The witnesses stated that he<\/p>\n
decided to divulge information against the accused since he felt<\/p>\n
that some of the so called workers in the R.S.S. like the<\/p>\n
accused, were not really interested in the welfare of the<\/p>\n
Organisation and they wanted to indulge in activities, detrimental<\/p>\n
to the Organisation.\n<\/p>\n
      13. At the first blush, though the above claim of PW68<\/p>\n
may appear to be true, on a close scrutiny of his evidence, it can<\/p>\n
be seen that he is not a witness of truth. First of all, it is rather<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  11<\/p>\n
inconceivable that a strong follower of R.S.S. or any political<\/p>\n
party or organisation would speak so vociferously against the<\/p>\n
other workers of the party, as has been done by PW68. His<\/p>\n
claim of loyalty to the Organisation, is open to serious doubts. If<\/p>\n
he had any intention to keep the Organisation clean, he could<\/p>\n
have brought the illegalities committed by the workers to the<\/p>\n
notice of the higher functionaries of R.S.S. in time. Probably, this<\/p>\n
is one of the rarest of rare cases, where the Prosecution<\/p>\n
ventures to adduce direct evidence regarding conspiracy.<\/p>\n
Usually, it is virtually impossible to get direct oral evidence<\/p>\n
regarding conspiracy for it is done in secrecy. So, the evidence<\/p>\n
of PW68 appears to be doubtful. One cannot simply swallow that<\/p>\n
being a follower and worker of RSS, he would speak against the<\/p>\n
Organisation. PW68 stated that he has nothing to show that he<\/p>\n
is an active worker of RSS.\n<\/p>\n
      14. One may recall that the evidence of PW68 is to the<\/p>\n
effect that he happened to see A1, A2 and A25 to A33, indulging<\/p>\n
in conspiracy, when he entered the Samskruti Bhavan. At one<\/p>\n
point of time, he would say that Samskruti Bhavan is behind the<\/p>\n
Fort High School and in another point of time, he would say that<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   12<\/p>\n
it is in the Devaswom Building. Whatever that be, it has been<\/p>\n
brought out in evidence that with regard to the incidents, which<\/p>\n
took place on 12.07.2000, the Fort Police Station had registered<\/p>\n
Crime No.260\/00. Quite a few of the accused in this case figured<\/p>\n
in that crime also. During the investigation of that crime, it seems<\/p>\n
that the Investigating Officer PW50 examined in this case had<\/p>\n
occasion to question PW68 and record his statement.               He<\/p>\n
speaks about the conspiracy there also. But, what is important is<\/p>\n
that he gave a totally different version. There, his stand was that<\/p>\n
while he had gone to the Samskruti Bhavan at 8’o clock in the<\/p>\n
night on 12.07.2000, he had occasion to see a white<\/p>\n
Ambassador car, parked by the side of the Fort High School.<\/p>\n
He found a few persons going towards the car. There were<\/p>\n
eleven of them. He identified those persons as A1, A2 and A25<\/p>\n
to A33 in this case. He overheard them, planning to unleash<\/p>\n
violence on the next day. He had no case at that time that he<\/p>\n
had occasion to see these people conspiring about the acts to<\/p>\n
be done, inside the Samskruti Bhavan building. It could then be<\/p>\n
seen that there are two diametrically opposite versions by PW68,<\/p>\n
regarding the very same incident. When PW68 was confronted<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  13<\/p>\n
with the earlier statement given by him, he denied of having<\/p>\n
made any such statement. Before PW50 also, who had occasion<\/p>\n
to record his statement, was definite that PW68 stated as<\/p>\n
recorded. The Court below was of the opinion that this<\/p>\n
inconsistency is not of much significance, but we are unable to<\/p>\n
concur with the Court below on the above aspect. We also feel<\/p>\n
that the claim of PW68 that he is an ardent follower of R.S.S. is<\/p>\n
open to serious doubts. It would appear from the nature of his<\/p>\n
evidence and the way in which he has deposed that he is a<\/p>\n
planted, tutored and manipulated witness, as claimed by the<\/p>\n
defence. So, it may not be safe to infer conspiracy, based on<\/p>\n
the solitary suspicious evidence of PW68. At any rate, there is<\/p>\n
nothing to indicate that the conspiracy extended to causing the<\/p>\n
murder of Rajesh. All that is tried to be established is that there<\/p>\n
was a decision taken by the members of the R.S.S. to unleash<\/p>\n
terror, create fright in the area and cause destruction to the<\/p>\n
public properties. Whatever that be, the evidence of PW68 alone<\/p>\n
is too brittle to come to a definite conclusion regarding<\/p>\n
conspiracy.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   14<\/p>\n
      15. The allegation of conspiracy has yet another aspect.<\/p>\n
The Prosecution case is that A1 and A2, along with A25 to A33,<\/p>\n
conspired to create terror in the area. However, in the incident<\/p>\n
that happened on 13.07.2000, the said accused persons alone<\/p>\n
were not involved.        Various acts were committed by various<\/p>\n
persons. The evidence in this case is that after the initial surge,<\/p>\n
when Police offered resistance and resolved to take harsh steps<\/p>\n
so as to disburse the mob, the protesters ran hither and thither .<\/p>\n
Later, some of them converged at a particular spot.          A few<\/p>\n
among them made provoking speeches from there and then,<\/p>\n
they branched off into groups and went from place to place,<\/p>\n
causing destruction to public properties. So, there is nothing to<\/p>\n
show that even assuming the first part is in furtherance of a<\/p>\n
conspiracy, the latter part can have no such image. Even in the<\/p>\n
first of the two incidents, a large number of people had<\/p>\n
participated and one fails to understand as to how the<\/p>\n
Prosecution could say that it was the result of a conspiracy.<\/p>\n
      16. What next arises for consideration is the murder of<\/p>\n
Rajesh. Rajesh was working as a Conductor in the KSRTC. The<\/p>\n
Court below, on an evaluation of the evidence before it, came to<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   15<\/p>\n
the conclusion that A17 and A19 alone could be held<\/p>\n
responsible for causing the injuries, which resulted in the death<\/p>\n
of Rajesh. The State has come up in appeal against the said<\/p>\n
finding. It wants to find several other accused also, along with<\/p>\n
A17 and A19 equally liable for the murder of Rajesh,           i.e.,<\/p>\n
Accused Nos.25 to 33 and also some other accused persons.<\/p>\n
According to the State, the acts, which resulted in the death of<\/p>\n
Rajesh were in pursuance of the conspiracy hatched on the<\/p>\n
previous day.\n<\/p>\n
      17. First of all, the offence of conspiracy has fallen to the<\/p>\n
ground     and therefore, that question does not arise for<\/p>\n
consideration any more.          Even assuming that there was a<\/p>\n
conspiracy as alleged by the Prosecution, that was only for the<\/p>\n
destruction of public property and there is nothing beyond that.<\/p>\n
The conspiracy was only to create terror and fear in the area, as<\/p>\n
a protest against Police acts and thereafter, to indulge in<\/p>\n
destruction of public property. The conspiracy, even assuming to<\/p>\n
be proved, was only to create as much trouble and destruction<\/p>\n
as possible, in the area. In this scheme of things, the conspiracy<\/p>\n
to murder Rajesh, does not fit in at all.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07    16<\/p>\n
       18. In Cr.A. No.385\/06, A17 and A19 have challenged the<\/p>\n
finding of offence of murder against them. One may recall that<\/p>\n
they have been found guilty of the offence of murder punishable<\/p>\n
under S.302 r\/w 34 IPC.\n<\/p>\n
       19. The Prosecution seeks to prove that the death of<\/p>\n
Rajesh was caused due to the acts of various protesters through<\/p>\n
the evidence of PWs 1 to 12, 15 to 22, 27 to 29 etc. But,<\/p>\n
unfortunately for the Prosecution, the evidence regarding this<\/p>\n
aspect was furnished only by PWs 5, 6 and 8. The lower Court<\/p>\n
have found their evidence to be acceptable.         Before going into<\/p>\n
that, it will be useful to consider the finding of the Court below in<\/p>\n
this regard and to refer to the injuries suffered by Rajesh, the<\/p>\n
victim.\n<\/p>\n
       20. Though CW84 was cited by the Prosecution to prove<\/p>\n
the treatment given to Rajesh at Medical College Hospital, on<\/p>\n
sustaining the injuries, the presence of       CW84 could not be<\/p>\n
procured.      The treatment recorded was, therefore, proved<\/p>\n
through PW83. The wound certificate of the deceased Rajesh,<\/p>\n
prepared at the Medical College Hospital is Ext.P124. The Court<\/p>\n
below has extracted the various injuries found on the body of<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07    17<\/p>\n
Rajesh, at the time of his admission in the Hospital. The Court<\/p>\n
below, in fact, has also extracted the entries in the wound<\/p>\n
certificate and the findings and opinion given in Ext.P76<\/p>\n
postmortem certificate. It is therefore, unnecessary to reproduce<\/p>\n
them in this Judgment. The opinion as to the cause of death of<\/p>\n
Rajesh is the blunt injuries suffered on his head. PW56, who<\/p>\n
conducted autopsy on the body of the deceased Rajesh, has<\/p>\n
deposed that Injury Nos.1 and 2 are the cause of death and they<\/p>\n
could well be caused by use of weapons like MOs 2 and 3.<\/p>\n
       21. PW56 had collected samples of various internal organs<\/p>\n
of the deceased at the time of autopsy. Ext.P83 is the chemical<\/p>\n
analysis report, which shows that the viscera examined showed<\/p>\n
that it contained 57.5 mgs. of Ethyl Alcohol per 100 mg. of blood.<\/p>\n
Based on the alcohol content so found, PW56 stated that the<\/p>\n
victim would have been easily provoked and behaved violently.<\/p>\n
There were as many as 15 to 18 injuries, found on the body of<\/p>\n
the victim. The Prosecution allegation is that the injuries were<\/p>\n
caused by A17 and A19 by using MOs 2 and 3 and the pelting of<\/p>\n
stones by the other accused persons. Whatever that be, one fact<\/p>\n
is very clear, i.e., the death of Rajesh was a homicidal.<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  18<\/p>\n
      22. While the State wants to make the other accused<\/p>\n
persons also liable for the death of Rajesh, A17 and A19<\/p>\n
assailed the finding of the Court below on several grounds. They<\/p>\n
characterised PWs 5, 6 and 8 as stooges of the Marxist party.<\/p>\n
According to them, they are planted and well tutored witnesses,<\/p>\n
to depose against the accused persons.\n<\/p>\n
      23. PW5 claims to have been running an instant food stall<\/p>\n
at Pazhavangadi. He runs his business, opposite to the<\/p>\n
Ganapathy temple. He functions from 5 pm till 11 pm. According<\/p>\n
to him, on the date of the incident, he had gone to the Civil<\/p>\n
Supplies Corporation situated below the KSRTC Chief Office, to<\/p>\n
buy articles for his business purposes. It was at about 12 in the<\/p>\n
noon. He found a number of persons moving along the road,<\/p>\n
causing destruction to the vehicles. Those miscreants were seen<\/p>\n
smashing everything that came on their way. They had wooden<\/p>\n
planks, iron pipes, sticks, stones etc. with them. They were<\/p>\n
merciless on vehicles, which were parked on either side of the<\/p>\n
road. He would say that he happened to hear some of the<\/p>\n
employees of the K.S.R.T.C., asking the protesters to desist<\/p>\n
from causing damages to the KSRTC buses. The reply was by<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  19<\/p>\n
pelting of stones. One among the employees of the KSRTC had<\/p>\n
a stone hit on his face and he fell down. He would claim that a<\/p>\n
person by name, Sathar and another person, by name Ani, took<\/p>\n
shelter near to him. He would say that then, he had occasion to<\/p>\n
see one of the miscreants, beating the person, who had fallen on<\/p>\n
the ground with a wooden plank. The victim cried out that he was<\/p>\n
being killed. Frightened by this,       the persons who were<\/p>\n
accompanying the victim, ran away from the place. PW5 claims<\/p>\n
that he had occasion to see the taller person among the<\/p>\n
miscreants, hitting the victim with an iron rod. Thereafter, they<\/p>\n
entered the garage and smashed the vehicles found there. He<\/p>\n
would claim that he saw two persons coming out of the nearby<\/p>\n
school and taking the victim, who had fallen on the ground to the<\/p>\n
hospital in a tempo van. He identified MOs 2 and 3 as the<\/p>\n
weapons used by the assailants. He identified A17 and A19 in<\/p>\n
court. He also identified A9, A5, A3, A7 and A1 as persons, who<\/p>\n
were along with A17 and A19. He was able to identify them in<\/p>\n
the identification parade also.\n<\/p>\n
      24. PW6 is a headload worker by profession. On the date<\/p>\n
of incident, he claims that he had gone to the Taluk Office for<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  20<\/p>\n
purchasing a revenue form. When he reached Transport<\/p>\n
Bhavan, he found about 10 to 25 persons, causing destruction to<\/p>\n
the vehicles on the road. PW6 says that he got into the KSRTC<\/p>\n
building. Two other persons were also there, frightened by the<\/p>\n
acts of the miscreants. One of them was PW5 and the other was<\/p>\n
Sathar.    PW6 too would say that while the miscreants were<\/p>\n
indulging in causing      heavy damages to the KSRTC buses,<\/p>\n
three of its employees asked them not to do so. Those persons<\/p>\n
had come from the garage of the KSRTC. They were replied by<\/p>\n
showering abuses by the miscreants, followed by pelting of<\/p>\n
stones. One of the stones fell on the head of the victim and he<\/p>\n
fell down. He too would depose that the victim was assaulted by<\/p>\n
two persons, one with a wooden plank and the other with an iron<\/p>\n
rod. The victim began to bleed. Some of the miscreants entered<\/p>\n
the garage and smashed the vehicles found there. When PWs 5<\/p>\n
and 6, who were waiting inside the building got down to the road,<\/p>\n
they found two persons coming out of the nearby school and<\/p>\n
going towards the victim. Initially, they were repelled by the<\/p>\n
miscreants and so, they returned and came back later. He would<\/p>\n
depose that he had gone near the victim. By that time, a few<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  21<\/p>\n
employees of the KSRTC, had gathered near the victim and he<\/p>\n
was taken to the Hospital in a tempo van. He also speaks about<\/p>\n
the various illegal activities committed by the group of<\/p>\n
miscreants. He too identified A17 and A19 in Court. He also<\/p>\n
identified MOs 2 and 3. He was able to identify the clothes worn<\/p>\n
by A17 and A19. But, he was unable to identify the particular<\/p>\n
person, who had pelted stones on the victim and others.<\/p>\n
      25. PW8 was an employee of the KSRTC. At the relevant<\/p>\n
time, he had duty from 9 am. to 5 pm. On the date of incident, he<\/p>\n
came to the office at 9 am. He is a Blacksmith in the KSRTC.<\/p>\n
Soon after he reached the Office, quite a few number of buses<\/p>\n
were brought for repair. After completing the work of one of the<\/p>\n
vehicles, he was on his way to have a cup of tea, when he found<\/p>\n
persons coming inside the office in the garage of the KSRTC.<\/p>\n
Consequent to that, an Officer of the KSRTC, who was on duty<\/p>\n
on the said date, asked PW8 to accompany him to see what was<\/p>\n
happening outside. When they got out, they found about 20-25<\/p>\n
persons, fully armed with weapons, causing destruction to the<\/p>\n
KSRTC buses. He would depose that three persons came out of<\/p>\n
the garage of the KSRTC building and requested the protesters<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  22<\/p>\n
to desist from their activities. They were showered with abuses,<\/p>\n
followed by pelting of stones. One of the stones hit Rajesh on<\/p>\n
his face and he fell down. Three persons, who were then<\/p>\n
accompanying Rajesh, found the situation bad and they ran back<\/p>\n
to the KSRTC office. PW8 would depose that one of the<\/p>\n
miscreants was seen hitting Rajesh with a wooden plank. That<\/p>\n
caused a bleeding injury on Rajesh. PW8 would also depose<\/p>\n
that he had occasion to see another person, hitting the victim<\/p>\n
with an iron rod. Rajesh began to bleed heavily. According to<\/p>\n
the evidence of this witness, the miscreants then entered the<\/p>\n
garage and caused considerable damage to the vehicles found<\/p>\n
there. After they left the garage, he says, he came into the<\/p>\n
KSRTC building. On being requested, PW8 would depose that,<\/p>\n
he along with an Officer of the KSRTC, took Rajesh to the<\/p>\n
Medical College Hospital in a tempo van.\n<\/p>\n
      26. Several criticisms are levelled against the acceptance<\/p>\n
of the evidence of the above witnesses. It is pointed out that it<\/p>\n
can be very easily seen that PWs 5, 6 and 8 are procured<\/p>\n
witnesses to suit the convenience of the Prosecution. A careful<\/p>\n
scrutiny of their evidence will show that the place of occurrence<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   23<\/p>\n
has been shifted to make it possible for PWs 5 and 6 to see the<\/p>\n
incident. It is also pointed out that there was considerable<\/p>\n
disparity and inconsistency in the identification made by the<\/p>\n
witnesses in Court and during the investigation stage. It is<\/p>\n
contended that the report prepared by PW84, furnishing the<\/p>\n
names of A17 and A19 was filed in Court, long after the crime<\/p>\n
was registered and that shows that they were subsequently<\/p>\n
implicated. It is contended that PWs 5 and 6 are chance<\/p>\n
witnesses and their evidence could not be accepted. One of the<\/p>\n
contentions was that the claim of PW5 that he had come to the<\/p>\n
Civil Supplies Corporation in the city, near the KSRTC bus<\/p>\n
stand, cannot be accepted, because, there is another Civil<\/p>\n
Supplies shop, very near to his place of business and therefore,<\/p>\n
it is virtually inconceivable that he could have come to the place<\/p>\n
as stated by him.\n<\/p>\n
       27. The said criticisms are without any basis.     It is not<\/p>\n
necessary for PW5 to go to the shop, which is near his place of<\/p>\n
business. He may have several reasons for not doing so. But,<\/p>\n
the question is whether he could have been present at the scene<\/p>\n
and he could have seen the incidents.         PW5 has given his<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   24<\/p>\n
testimony in which, he has also identified A17 as the person,<\/p>\n
who carried an iron pipe and A19 as the one, who was standing<\/p>\n
with a wooden reaper. Merely because the Civil Supplies shop is<\/p>\n
not near to his place of business, it will be too harsh to say that<\/p>\n
PW5 should be disbelieved. The evidence of PW6 is to the<\/p>\n
effect that he came to the place of incident as he was on his way<\/p>\n
to purchase a revenue form for getting a revenue card. He too<\/p>\n
had identified A17 and A19 and the weapons they had with<\/p>\n
them.\n<\/p>\n
      28. It is true that the evidence of PW8 is not fully in favour<\/p>\n
of the Prosecution. Though, he says that one person by name<\/p>\n
Rajesh was hit with an iron reaper, he did not identify the<\/p>\n
assailants in Court. But, his evidence reliably shows that quite a<\/p>\n
few persons entered the garage from the nearby school and the<\/p>\n
employees of the KSRTC had asked the miscreants, not to<\/p>\n
damage the vehicles. Soon thereafter, the pelting of stones<\/p>\n
started. He identified A1, A2, A9, A11, A18 and A20 as persons,<\/p>\n
who were in the group of assailants and who had come into the<\/p>\n
garage.    PWs 5 and 6 have given clear reasons for their<\/p>\n
presence at the place of incident. It has to be noticed that<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07    25<\/p>\n
considering the nature of the acts committed by the assailants<\/p>\n
and also the place and the manner, in which they were<\/p>\n
committed, it could not be stated that PWs 5 and 6 are procured<\/p>\n
witnesses. As far as PW8 is concerned, he is a Black Smith,<\/p>\n
attached to the KSRTC.\n<\/p>\n
      29. Regarding the contradiction in the identification, it is by<\/p>\n
now, well settled that the identification in Court is the substantive<\/p>\n
evidence. The identification during the investigation is only to<\/p>\n
enable the Investigating agency to be sure of the way, they are<\/p>\n
proceeding and it has nothing to do with the identification in<\/p>\n
Court. Probably, one could say that if two identifications tally with<\/p>\n
each other, the identification in Court may be held to have<\/p>\n
gained support from the identification during investigation also.<\/p>\n
But, the mere fact that          there is some difference in the<\/p>\n
identification in Court and the one made during the investigation,<\/p>\n
by itself is not enough to discard the identification made by the<\/p>\n
witnesses in Court.\n<\/p>\n
      30. Emphasis was also laid on the fact that there were<\/p>\n
some inconsistencies and contradictions regarding the overt acts<\/p>\n
attributed to A17 and A19, as spoken to by the witnesses. It is<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07      26<\/p>\n
unnecessary to give undue importance to such minor or<\/p>\n
insignificant inconsistencies. One has to remember that it was a<\/p>\n
mob attack and it was not possible for the witnesses to speak on<\/p>\n
the exact words\/acts by each one of the members of the<\/p>\n
unlawful group.      Whatever it may be,        the fact remains that<\/p>\n
Rajesh was assaulted with an iron pipe and wooden reaper and<\/p>\n
he suffered injuries in that process. It is also clear from the<\/p>\n
evidence that at least two persons in the unlawful group did<\/p>\n
carry an iron rod and a wooden reaper. Persons have been<\/p>\n
identified by the witnesses as A17 and A19.\n<\/p>\n
      31. As far as PW8 is concerned, he was unable to identify<\/p>\n
A17 and A19 in Court. As already noticed, to that extent, his<\/p>\n
evidence is of no use to the Prosecution. But, his evidence<\/p>\n
stands, as regards the destruction caused to the KSRTC buses<\/p>\n
and also the attack made on Rajesh. To that extent, he<\/p>\n
corroborates other witnesses.\n<\/p>\n
      32. The allegation that there has been a conscious shifting<\/p>\n
of the place of incident, to enable PWs 5 and 6 to see the<\/p>\n
incident, is not justified at all. It is true that PW2, at the time of<\/p>\n
giving the First Information Statement, namely, Ext.P6, had<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   27<\/p>\n
stated that Rajesh had sustained injuries at the office compound<\/p>\n
of the KSRTC depot. But, on a close scrutiny of the evidence, it<\/p>\n
can be seen that it may not be fully correct.           PW78, had<\/p>\n
prepared a scene mahazar earlier and later, another scene<\/p>\n
mahazar was prepared by PW84. One has to notice that the<\/p>\n
incident was not confined to a specific place and it was spread<\/p>\n
over an area. Therefore, to say that merely because a specific<\/p>\n
spot has been pointed out in one of the scene mahazars, the<\/p>\n
evidence of PWs 5 and 6 should be discarded, is too far-fetched.<\/p>\n
Even though PWs 5 and 6 have been characterised as stooges<\/p>\n
of the Marxist party, the defence has not been able to establish<\/p>\n
the same.     An attempt was made from the side of the defence<\/p>\n
through DW2 to save A17. The Court below has discussed the<\/p>\n
evidence of the said witness in detail and has come to the<\/p>\n
conclusion that it is only a cooked up story.\n<\/p>\n
      33. It is significant to notice that the acts of A17 and A19<\/p>\n
are not confined to the evidence of PWs, 5, 6 and 8. The<\/p>\n
Prosecution has proved the recovery of MOs 2 and 3 and the<\/p>\n
clothes said to have been worn by A17 and A19 at the time of<\/p>\n
the incident.<\/p>\n
\nCr.A.Nos.384\/06, 385\/06 & 1279\/07  28<\/p>\n
      34.    PW34       was    a Black Smith      working   at   the<\/p>\n
Pappanamcode Central Works. On the date of the incident, he<\/p>\n
stated that he was standing at the Kallummoodu Junction for<\/p>\n
taking a bus to his place of work. Then, he happened to see a<\/p>\n
group of persons, comprised of        20 individuals, armed with<\/p>\n
banners, wooden reapers etc. He claims to have then seen A17<\/p>\n
with a iron rod and A19 with a wooden reaper. However, in<\/p>\n
Court, he was unable to properly identify A19. It could not be<\/p>\n
said that the evidence of this witness fully supports the case of<\/p>\n
the Prosecution. But, to a certain extent, it corroborates the other<\/p>\n
witnesses.\n<\/p>\n
      35. PWs 49 and 54 were examined by the Prosecution to<\/p>\n
prove the recovery of MOs 2, 3, 4 and 5. According to the<\/p>\n
Prosecution, on being arrested and questioned by PW84, two<\/p>\n
weapons and the respective dresses worn by A17 and A19 were<\/p>\n
recovered on the basis of the confession statements given by<\/p>\n
them. PW49 is an attester to Ext.P67 mahazar by which MOs3<\/p>\n
and 5 were recovered and PW54 is an attester to Ext.P74 by<\/p>\n
which MO2 was recovered.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   29<\/p>\n
      36. It is seen that the recovery of MO3 iron pipe and MO5<\/p>\n
series of dress was made on the basis of the confession<\/p>\n
statement stated to have been given by A17, under Exts.P67 (a)<\/p>\n
and (b) mahazars.         According to the Prosecution, A17 had<\/p>\n
produced the iron pipe, namely, MO3 from the south eastern<\/p>\n
corner of the roof of the house, bearing No.TC72\/2289 near<\/p>\n
Ponnara School and the clothes, namely, MO5 series were<\/p>\n
recovered from the southern room of the house. Ext.P67 is the<\/p>\n
seizure mahazar, under which, they were seized. PW1 speaks<\/p>\n
about the recovery of articles at the behest of A17 and he has<\/p>\n
also explained the occasion for him to reach the place.<\/p>\n
According to the evidence, A19 produced MO4 series of dress<\/p>\n
from an almirah kept in the room in the house bearing<\/p>\n
No.TC72\/2542. He produced MO2 reaper, which was hidden in<\/p>\n
the wall of the house. They were seized under Ext.P74 seizure<\/p>\n
mahazar. Even though PWs 49 and 54 were cross examined at<\/p>\n
length, no dent could be made in their evidence. The attempt<\/p>\n
was to show that they were CITU members and have been<\/p>\n
deliberately implanted to speak against the accused. There<\/p>\n
were several suggestions thrown at them in this regard. It is true<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   30<\/p>\n
that at some point of time, they showed some allegiance to<\/p>\n
CITU. In fact, one of them admitted to be a member of CITU. It<\/p>\n
is also true that one of them was involved in criminal cases also.<\/p>\n
But, there was nothing to suspect the evidence of PWs 49 and<\/p>\n
54, because of the above reasons. At any rate, there is no such<\/p>\n
infirmity or stigma attached to those witnesses and there is no<\/p>\n
reason as to why their evidence should not be accepted.<\/p>\n
      37. There is thus, convincing evidence to show that A17<\/p>\n
had an iron rod and A19 had a wooden reaper, with them. The<\/p>\n
evidence also disclosed that they had used it on Rajesh and<\/p>\n
caused injuries on him. There is also evidence to show that<\/p>\n
Rajesh had finally succumbed to those injuries. Of Course,<\/p>\n
Rajesh had suffered other injuries also.\n<\/p>\n
      38. At this point of time, it may be useful to consider the<\/p>\n
appeal filed by the State in this regard. The State points out that<\/p>\n
the Court below was not justified in confining the offence<\/p>\n
punishable under S.302 read with S.34 IPC to A17 and A19 only.<\/p>\n
According to them, the acts of A17 and A19 were in furtherance<\/p>\n
of the conspiracy hatched on 12.07.2000. At the           time of<\/p>\n
commission of the offences by A17 and A19, the other accused<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  31<\/p>\n
persons, namely, A1, A2 and A4 to A33 were also present at the<\/p>\n
place. The State would point out that if the other accused had no<\/p>\n
role to play, they would have discouraged A17 and A19 from<\/p>\n
going on with their acts.        The fact that they had not so<\/p>\n
discouraged A17 and A19, shows their involvement also in the<\/p>\n
crime, it is pointed out. Though, the argument may look very<\/p>\n
attractive, it is without any substance at all. First of all, the<\/p>\n
conspiracy theory has been found against. There is nothing to<\/p>\n
show that the other accused persons, along with A17 and A19,<\/p>\n
had shared any common object or common intention to cause<\/p>\n
any harm to Rajesh. It must be remembered that it was the<\/p>\n
result of spontaneous reactions on the part of A17 and A19,<\/p>\n
when resistance was offered by some of the employees of the<\/p>\n
KSRTC in the garage. None of the accused could anticipate that<\/p>\n
such a thing would happen. Apart from that, in a mob fury, if one<\/p>\n
of them without any pre-meditation or pre-determination, causes<\/p>\n
an injury to any person, it may not be possible to hold the entire<\/p>\n
mob liable for the act done by the said person. Of course, the<\/p>\n
State would say that it is not necessary that all the persons<\/p>\n
indulged in the act, should be fully aware of the conspiracy etc.<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  32<\/p>\n
But, that position does not arise for consideration in this case at<\/p>\n
all. Therefore, the decisions cited by the State, need not be<\/p>\n
gone into in detail.\n<\/p>\n
      39. Of course, the State in its appeal, would also say that<\/p>\n
there was exhortation from the part of several other accused<\/p>\n
persons to kill Rajesh and it was in furtherance of that<\/p>\n
exhortation that the attack was made by A17 and A19. Except<\/p>\n
for the self-proclamation by the State, there is no evidence in<\/p>\n
this regard to show that there were any such acts by the<\/p>\n
members of the mob. It must be remembered here that there is<\/p>\n
some evidence to show that some of the employees, who<\/p>\n
wanted to resist the protesters from causing destruction to the<\/p>\n
vehicles, in fact, had weapons, in the nature of tools, with them.<\/p>\n
May be apprehending trouble, A17 and A19 had acted in the<\/p>\n
manner as they did. But to say that it was in furtherance to either<\/p>\n
a common object or common intention, is too imaginative and<\/p>\n
uncalled for. So, the contention of the State that A1, A2 and A25<\/p>\n
to 33 should also be found along with A17 and A19, guilty under<\/p>\n
the offence punishable under S.302 read with S.34 IPC, cannot<\/p>\n
be accepted.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   33<\/p>\n
      40. It must also be noticed that Rajesh had sustained<\/p>\n
injuries, as a result of pelting of stones also. There is nothing to<\/p>\n
indicate that A17 and A19 had inflicted repeated blows with the<\/p>\n
iron rod and the wooden reaper, on Rajesh. The question as to<\/p>\n
what are the offences committed by those persons, will be<\/p>\n
considered a little later.\n<\/p>\n
       41. What next comes up for consideration, is the finding<\/p>\n
regarding the guilt of various accused persons with reference to<\/p>\n
the offences punishable under Ss.143, 147 and 148 IPC and S.3<\/p>\n
(2)(e) of the PDPP Act.          There cannot be much dispute<\/p>\n
regarding the fact that considerable damages were caused by<\/p>\n
the protesters in the incident that happened on 13.07.2000. As<\/p>\n
many as 86 KSRTC buses suffered considerable damages and<\/p>\n
the window panes of several buildings were shattered.           The<\/p>\n
Court below has considered the evidence in detail and has come<\/p>\n
to the conclusion that some of the accused persons, who have<\/p>\n
indulged in the acts, have caused destruction to the public<\/p>\n
property. The Court below has, in paragraph 32 of the Judgment,<\/p>\n
mentioned the details regarding the destruction caused to the<\/p>\n
vehicles. Unfortunately for the Prosecution, it was not able<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  34<\/p>\n
establish that the miscreants had caused damage or destruction<\/p>\n
to any of the assets other than the KSRTC buses.<\/p>\n
      42. Except for minor damage caused to the roof sheets of<\/p>\n
some vacant sheds, the Prosecution was unable to prove<\/p>\n
anything else with regard to the destruction caused to the<\/p>\n
building of the KSRTC. For the purpose of proving the<\/p>\n
destruction to the buses, reliance was placed on the evidence of<\/p>\n
PWs 5,6, 8, 31 and 33. The evidence of PW5, 6 and 8 have<\/p>\n
already been referred to. PWs 5, 6 and 8 have identified some<\/p>\n
of the miscreants. The evidence of PW33 is to the effect that on<\/p>\n
the date of incident, at about 12 in the noon, when he reached<\/p>\n
the eastern gate of Chief Office through the Taluk Office Road,<\/p>\n
he saw a group of persons coming in procession along the road,<\/p>\n
causing damage to the vehicles on either side of the road.<\/p>\n
According to him, there were about 40 persons in the<\/p>\n
procession. Apart from smashing the vehicles, they were also<\/p>\n
seen pelting stones. But, his identification in court was confined<\/p>\n
only to some of the accused. His identification during the<\/p>\n
investigation is of no consequence. In fact, he was a Mechanic<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  35<\/p>\n
in the KSRTC, working in the Thiruvananthapuram City Depot.<\/p>\n
PW31 was the Manager (Maintenance and Works) in the<\/p>\n
KSRTC Chief Office during the relevant period. He was present<\/p>\n
in office when the incident occurred. He found to his dismay a<\/p>\n
few persons indulging in smashing KSRTC buses, which were<\/p>\n
parked in the Vazhapally Road in front of the Transport Bhavan.<\/p>\n
After the trouble was over, he along with the Works Manager,<\/p>\n
went to the place and was satisfied that considerable damage<\/p>\n
was caused to the vehicles.        He obtained a detailed report<\/p>\n
regarding the damage caused to the buses and as per the<\/p>\n
direction given by the Mechanical Engineer and the Executive<\/p>\n
Director, he submitted a report, assessing the actual cost of the<\/p>\n
damage caused to the buses for submitting it before the<\/p>\n
Managing Director. That is what is extracted in the Judgment of<\/p>\n
the Court below. The Court below has considered the evidence<\/p>\n
of various witnesses in this regard and has also taken pains to<\/p>\n
identify the miscreants, who had indulged in wanton activities. It<\/p>\n
is unnecessary to repeat those items of evidence and it is<\/p>\n
already    noticed that no one can dispute that considerable<\/p>\n
damage and destruction had been caused to KSRTC vehicles.<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  36<\/p>\n
        43. It is significant to notice that several KSRTC<\/p>\n
employees had suffered injuries in the incident. But, for want of<\/p>\n
proper evidence in this regard, the Prosecution was unable to fix<\/p>\n
liability on any of the accused. The Court below has made its<\/p>\n
finding regarding the offence punishable under Ss.143, 147 and<\/p>\n
148 IPC and S.3(2)(e) of the PDPP Act, based on the<\/p>\n
identification of the various witnesses in court. The matter has<\/p>\n
been dealt with elaborately by the Court below. It is idle for the<\/p>\n
appellants to say that there was no proper identification and so,<\/p>\n
it was not possible to say, who had caused obstruction to the<\/p>\n
KSRTC buses. Moreover, when a group of persons cause<\/p>\n
damage to public properties, each one of that illegal group will<\/p>\n
be held liable for the acts of the other members in the group<\/p>\n
also.\n<\/p>\n
        44. One cannot dispute that there was an unlawful<\/p>\n
assembly and that they had indulged in rioting. Most of them had<\/p>\n
weapons with them and the Court below has sought to cast<\/p>\n
liability on those accused persons, who were identified before<\/p>\n
Court. Obviously, the acts committed by those persons can be<\/p>\n
treated to be only in furtherance of the common object of<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   37<\/p>\n
causing destruction and creating terror in the area. It is idle for<\/p>\n
the appellants to contend that the finding in this regard is<\/p>\n
incorrect or illegal.\n<\/p>\n
      45. Now, what remains to be considered is the offence that<\/p>\n
is alleged to have been committed by A17 and A19. It has<\/p>\n
already been noticed that there was no pre-determination or pre-<\/p>\n
meditation in their acts. It was a spontaneous act, arising out of<\/p>\n
the circumstances disclosed by the evidence in this case. There<\/p>\n
is nothing to show that they had inflicted repeated blows on<\/p>\n
Rajesh with the weapons, they were alleged to possess. The<\/p>\n
fact remains that the blows were inflicted on the head of Rajesh.<\/p>\n
There is nothing to indicate that there was any intention to cause<\/p>\n
the death of Rajesh. It has to be remembered that after Rajesh<\/p>\n
had fallen on the ground, the accused left without inflicting too<\/p>\n
many blows and at a later stage, Rajesh succumbed to the<\/p>\n
injuries sustained by him. It is too difficult to come to the<\/p>\n
conclusion that A17 and A19 had the intention to do away with<\/p>\n
Rajesh. They may have caused bleeding injuries to Rajesh and<\/p>\n
they may be inflicted injuries to his body. But, that by itself is not<\/p>\n
sufficient to hold that those persons are guilty of the offence of<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  38<\/p>\n
murder. There is nothing to show that they had any intention to<\/p>\n
cause the death of Rajesh or to inflict such injury, which they<\/p>\n
knew, will cause the death of Rajesh. On an evaluation of the<\/p>\n
evidence with regard to this aspect, it is felt that it will be<\/p>\n
appropriate to find those persons guilty of the offence punishable<\/p>\n
under S.326 IPC only. One may say that the finding regarding<\/p>\n
the person liable for causing destruction to the KSRTC buses<\/p>\n
and also the offences under the P.D.P.P. Act and I.P.C. covered<\/p>\n
by those acts, no interference is called for.<\/p>\n
      46. The State in its appeal, has stated that the sentence<\/p>\n
imposed on the accused persons for the various offences<\/p>\n
committed by them, are inadequate. It has to be stated that there<\/p>\n
is some substance in the above complaint with reference to the<\/p>\n
offence punishable under S.3(2)(e) of the PDPP Act. The<\/p>\n
menace of causing destruction to the public property has been<\/p>\n
on the increase in recent times and the miscreants are able to<\/p>\n
go scot-free for various reasons. In fact, it is felt that this attitude<\/p>\n
should be discouraged and if found guilty, severe punishments<\/p>\n
should be imposed on them. But, in this case, considering the<\/p>\n
fact that the incidents which gave rise to this case occurred in<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07   39<\/p>\n
the year 2000, at this distance of time, it may not be proper and<\/p>\n
justifiable to enhance the sentences in this regard. In the result,<\/p>\n
I. Cr. A. Nos.384 and 385 of 2007, are disposed of as follows :<\/p>\n
(a)    The conviction and sentence imposed on A17 and A19 for<\/p>\n
the offence punishable under S.302 r\/w S34 IPC are set aside<\/p>\n
and they are found guilty of the offence punishable under S.326<\/p>\n
r\/w S.34 IPC and each of them is sentenced to suffer rigorous<\/p>\n
imprisonment for seven years and to pay a fine of Rs.30,000\/-<\/p>\n
each, in default of payment of which, they shall be sentenced to<\/p>\n
rigorous imprisonment for two years. If the fine amounts are<\/p>\n
released, a sum of Rs.55,000\/- (Rupees Fifty Thousand only)<\/p>\n
shall be given to the legal heirs of Rajesh.\n<\/p>\n
(b) A1 to A7 and A25 to A33 are acquitted of the charges under<\/p>\n
S.120B r\/w S.3(2)(e) of the PDPP Act.\n<\/p>\n
(c) The conviction and sentence of A1 to A7, A9 to A12, A14,<\/p>\n
A16 to A19 for the offences punishable under Ss.143, 147, 148<\/p>\n
IPC, S.3(2)(e) of the PDPP Act r\/w S.149 IPC are upheld and<\/p>\n
confirmed.\n<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07    40<\/p>\n
(d) The conviction and sentence of A1, A2 and A25 to A33 for<\/p>\n
the offences punishable under Ss.109 and 111 IPC are set aside<\/p>\n
and they stand acquitted of the said offences.<\/p>\n
(e) The bail bonds of those persons, who are on bail and who<\/p>\n
have been acquitted of all charges, shall stand cancelled and<\/p>\n
they are set at liberty. Set off as per law will be allowed.<\/p>\n
(f) Those persons, who are on bail and who are convicted and<\/p>\n
sentenced for various offences under this Judgment, shall<\/p>\n
surrender before the Trial Court for undergoing sentence.<\/p>\n
      II. Cr. A. No.1279\/07 stands dismissed.\n<\/p>\n<\/p>\n
                                 K.BALAKRISHNAN NAIR, JUDGE<\/p>\n
                                 P.BHAVADASAN, JUDGE<\/p>\n
sta<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  41<\/p>\n
                                       K.BALAKRISHNAN NAIR, &
\n                                       P.BHAVADASAN, JJ.\n<\/p>\n
                                   =============================
\n                                    Cr.A.Nos.384 & 385 of 2006 &
\n                                             1279 of 2007
\n                                   =============================<\/p>\n
                                                      JUDGMENT<\/p>\n
                                       DATED 14TH JANUARY 2010
\n                                   =============================<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  42<\/p>\n
Cr.A.Nos.384\/06, 385\/06 & 1279\/07  43<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-135656","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nGireesan Nair vs State Of Kerala on 14 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gireesan-nair-vs-state-of-kerala-on-14-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gireesan Nair vs State Of Kerala on 14 January, 2010 - 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