State of Kerala v. K. T. Thomas — 1960 DIGILAW 348 (KER)

Judgment :- 1. This is an appeal by the State against the acquittal of the accused by the learned Sessions Judge of Kottayam in S.C. No. 60 of 1958 on his file. There were 25 accused persons in the case and all of them were charged under S.147, 341 or 341 read with 149 and 427 and 427 read with 149, I.P.C. Accused persons 2, 4, 7 to 11, 13,18 and 19 were also charged under S.143, I.P.C. Accused persons 7 to 11 were further charged for an offence under S.307 I.P.C. All the 25 accused persons were further charged with an offence under S.307 read with S.149, I.P.C. 2. The prosecution case is that the 25 accused persons and others were against the passing of the Kerala Education Act and they wanted to murder the Hon'ble Minister Sri. T.A. Majeed and Sri. P.T. Punnoose, M.P., and thereby upset the Government. With this common object the accused persons with about 50 others waited near the Lincoln Motor Shop at Kanjirapally on the 26th of September, 1957. The Minister had a programme that day to go to Koratty through Kanjirapally for opening a bridge. The Minister, who is Pw. 11 in the case, reached Kanjirappally Travellers' Bungalow at about 12.30 p. m, ,on that day. Pw, 12, Sri. P.T. Punnoose, and his brother-in-law, Pw. 2, went to the Travellers' Bungalow a little after the arrival of the Minister to invite him for lunch at the residence of Pw. 2. They went to the Travellers' Bungalow in a car, K.L.K. 999, and took the Minister in the car along with Pw. 1, who was found waiting on the verandah of the Travellers' Bungalow. The above-said four persons proceeded in the car to the house of Pw. 2. Pw.1 was sitting in the front seat of the car beside the driver and the others were in the back seat. Pw. 11, the Minister, was on the right hand side of the back seat. When the car reached the gate of the Travellers' Bungalow, the inmates of the car saw a jeep waiting on the road. The prosecution case is that the 5th accused was in the jeep and the jeep followed the car, in which the Minister and the others were travelling. On the way the jeep tried to overtake the car. But Pw. The prosecution case is that the 5th accused was in the jeep and the jeep followed the car, in which the Minister and the others were travelling. On the way the jeep tried to overtake the car. But Pw. 2 instructed the driver not to allow the jeep to overtake them. The car came near the Lincoln Motor Shop, when the inmates of the car saw a crowd of people about 75 strong standing on either side of the road. Some of them had black flags in their hands and others had sticks. At that time Pw.1 looked back and saw the 5th accused standing in the jeep and showing signs to the people waiting there indicating that the persons, for whom they were waiting, were in the car. Then the crowd on the road stopped the car and some of them hit with sticks on the top and bonnet of the car and they also shouted slogans against the government. The 1st accused is alleged to have shouted "kill him", on which accused persons 7 to 11 rushed, with daggers in hand, to the right side of the car where the Minister was sitting and tried to open the door of the car. At this juncture Pw. 2 directed the driver to proceed and the driver raised the engine of the car, when the crowd standing in front of the car dispersed and allowed the car to proceed. Thereafter the car proceeded to the residence of Pw. 2. Mrs. Rosamma Punnoose, wife of Pw. 12, was also at the residence of Pw. 2. After lunch by about 3-45 p. m. in the evening Pw. 11 and Mrs. Punnoose proceeded to Koratty in the State car for the function and returned by about 5-30 p. m. to Kanjirappally Travellers' Bungalow. Then Pw. 11 went to Kottayam and stayed at the Government House there for the night. Pws. 3 to 6 are alleged to have witnessed this occurrence besides the inmates of the car. Pw. 10, the Sub Inspector of Police at Kanjirappally, was patrolling the area within his jurisdiction, because the Union Minister the Hon'ble Sri Nanda was also passing through Kanjirappally on that day. He heard about this occurrence at Koovapilly about 6 miles from the scene of occurrence and straightaway proceeded to the scene. He got the scene mahazar, Ext. Pw. 10, the Sub Inspector of Police at Kanjirappally, was patrolling the area within his jurisdiction, because the Union Minister the Hon'ble Sri Nanda was also passing through Kanjirappally on that day. He heard about this occurrence at Koovapilly about 6 miles from the scene of occurrence and straightaway proceeded to the scene. He got the scene mahazar, Ext. P1, prepared at 2 p.m. and also visited the residence of Pw. 2, where Pws. 1, 2,11 and 12 were at that time. The car was also there then. The Sub-Inspector questioned Pws.1 and 2 there and Pws. 11 and 12 later. Pw. 11 was questioned at the Government House at Kottayam. According to the prosecution Pw. 10 registered a case and prepared the F.I.R., Ext. P4, at 6-30 p. m. on the same day. Ext. P4 contained only the names of accused persons 1 to 13. On the same day Pw. 10 sent another report, Ext. P5, showing the names of accused persons 14 to 25 and seeking to include them also in the array of accused persons in the case. Pw. 9, the Traffic Sub-Inspector of Kottayam, as directed by the D. S. P, inspected the car, K.L.K. 999, on 30th September 1957, when the car was in Raman's Workshop at Kottayam. He issued a certificate, Ext. P3, showing the damage to the car. Pw. 13, the Circle Inspector of Kanjirappally, was informed about the incident at 5 p. m. on 27th September, 1957. He verified the investigation of Pw. 10 and questioned Pws. 3 to 6. He completed the investigation and filed the charge sheet in the case on 15th October, 1957. 3. The 1st accused stated before the Sessions Court that he did not stop the car, in which the Minister was travelling, but the car was voluntarily stopped by the driver and a little thereafter it proceeded. Some people in the crowd shouted slogans and nobody in the crowd did anything more than shouting slogans. The 2nd accused said practically the same thing. The 4th accused also concurred in this version and further said that Pws. 2,12 and the wife of Pw. 12 were responsible for foisting this false charge against him and that all the eye-witnesses were members of the Communist Party and hence were giving false evidence against him. The 2nd accused said practically the same thing. The 4th accused also concurred in this version and further said that Pws. 2,12 and the wife of Pw. 12 were responsible for foisting this false charge against him and that all the eye-witnesses were members of the Communist Party and hence were giving false evidence against him. The 3rd and the 7th accused stated that they were not guilty and the witnesses were not speaking the truth. Accused persons 8 to 15 also had the same case as the 1st accused. The 16th accused and the 18th accused stated that they were in the house of the 16th accused along with Dw. 3 at the time of the occurrence. Accused persons 17,19 and 20 concurred with the statement of the 1st accused. Accused persons 21, 22 and 23 also stated that there was only a black flag demonstration and the prosecution witnesses were not speaking the truth. Accused persons 5, 6, 24 and 25 pleaded that they were not at the scene of occurrence at that time. The 24th accused said that he was at the Cosmo Hotel in Mundakayam and he met the Excise Inspector, Dw. 5, there. The 25th accused stated that he saw Pw. 10 at the 28th mile on the K-K road at 12 noon on that day and it was not possible for him to be present at the scene of occurrence at the alleged time. 4. The accused persons examined 5 witnesses. Dw.1 is the Dy. S.P. and Dw. 2 is a member of the Assembly and the President of the Vigilance Committee at Kanjirappally. Dw.1 speaks to a petition filed by the 24th accused making allegations against Pw. 13, the Circle Inspector. Dw. 2 proves, with reference to a list showing the names of the members of the Vigilance Committee, that Pws. 3 to 6 were members of the Communist Party. Dw. 3, as stated already, deposes that he was in the house of the 16th accused along with the 18th accused between 12.30 and 1.45 p. m, on the day of occurrence. Dw. 4 is the steward of the Government House at Kottayam. He proves by reference to Ext. D21, the occupation register kept in the Government House, that Pw. 11 went to the Government House at 11.30 p.m. on 26th September, 1957. Dw. 4 is the steward of the Government House at Kottayam. He proves by reference to Ext. D21, the occupation register kept in the Government House, that Pw. 11 went to the Government House at 11.30 p.m. on 26th September, 1957. Dw.5 is the Excise Inspector, who met the 24th accused at the Cosmo Hotel at Mundakayam at about 1 p. m. on the day of occurrence. 5. The learned Sessions Judge acquitted accused persons 16, 20, 23 & 25 since, according to him, there was no evidence to show that they were present at the scene of occurrence on that day. He acquitted accused persons 6 and 19 on the ground that, even if they were present, there was no evidence to show that they were either members of an unlawful assembly or did any overt act which constituted an offence. He acquitted the 24th accused believing the testimony of Dw. 5 that he saw the 24th accused at Mundakkayam at 1 p. m. that day. Regarding the other accused persons, who were present at the scene of occurrence, the learned Sessions Judge acquitted them holding that they only showed black flags and shouted some slogans. According to the learned judge there was no unlawful assembly or riot. The evidence adduced by the prosecution, according to him, was of an unsatisfactory character and it completely failed to prove that any of the accused persons was guilty of any of the offences charged. In the result he has acquitted all the accused persons and, as we have already observed, the State has appealed against the order of acquittal. 6. Before we enter into a discussion regarding the merits of the case we would consider some glaring laches in, and the unsatisfactory nature of, the investigation of the case by the Police. The occurrence is alleged to have taken place at about 1 or 1.30 p. m. on the 26th of September, 1957. Within a short time the Sub-Inspector of Police, Pw. 10, reached the place and he went to the residence of Pw. 2. At that time Pws.1, 2,11 and 12 were there and the car alleged to have been damaged was also there, Pw. 10 seems to have questioned only Pws.1 and 2 and he says that he directed the head constable to prepare a mahazar regarding the damage to the car. 2. At that time Pws.1, 2,11 and 12 were there and the car alleged to have been damaged was also there, Pw. 10 seems to have questioned only Pws.1 and 2 and he says that he directed the head constable to prepare a mahazar regarding the damage to the car. The mahazar prepared by the head constable is Ext. P1. Pw. 12 was questioned by Pw. 10 later in the evening and Pw. 11 was questioned only in the night, while he was at the Government House at Kottayam. Ext. P4, the first information report, was despatched to the Magistrate that night itself by Pw. 10. This document contains only the names of accused persons 1 to 13. Ext. P5 is another report which also was sent by Pw. 10 the same night and this contains the names of accused persons 14 to 25. According to Pw. 10, at the time of the preparation of Ext. P4, the, names of accused persons 1 to 13 alone were known to him and since he happened to ascertain the names of the other accused persons only subsequently, he prepared and sent Ext. P5. One important thing that has to be noted in this connection is that Ext. P4 seems to have been received by the Magistrate on the 28th of September, because it is initialled by him on that day, whereas Ext. P5 bears the initial of the Magistrate and the date 8th of October, which indicate that that document was received by the Magistrate only on the latter date. The prosecution case is, as we have already stated, that Exts. P4 and P5 were despatched on the night of the day of occurrence, i. e., 26th September, 1957. It is inexplicable as to how and why, if the prosecution version regarding the preparation and despatch of Ext. P5 is correct, this document happened to be received by the Magistrate ten or eleven days after the receipt of Ext. P4. The contention of the defence in the lower court as well as here is that Pws. It is inexplicable as to how and why, if the prosecution version regarding the preparation and despatch of Ext. P5 is correct, this document happened to be received by the Magistrate ten or eleven days after the receipt of Ext. P4. The contention of the defence in the lower court as well as here is that Pws. 2 and 12, who are brothers-in-law, the latter being the husband of the sister of the former, in consultation with the said sister, who is a lawyer, foisted this false case against the accused, some of whom were present at the scene of occurrence in connection with a black flag demonstration against the Minister, which was quite a lawful purpose and the Sub Inspector, Pw. 10, also helped them in so foisting the false case. According to the defence the first information report, Ext. P4, itself was prepared several hours after Pw. 10 got the information and Ext. P5 must have been despatched, not on the 26th of September, but on a subsequent date. There is considerable force in this argument because no explanation is forth-corning from the prosecution as to how Ext. P5 happened to bear the date of receipt by the Magistrate as 8th of October, 1957. The learned Sessions Judge points out another circumstance also which adds strength to the defence contention. Pw. 11 did not know the names of any of the accused persons and Pw. 12 knew the names of only 4 or 5 of them, so that Pw. 10 must have ascertained the names of all the accused from Pws.1 and 2. According to Pw. 10, Pws.1 and 2 were questioned by him before the preparation of the first information report, Ext. P4. If that be so, Ext. P4 should have contained all the names of the accused and it is beyond one's comprehension why Ext. P5 was prepared at all. There is one more circumstance, which adds to the suspicious nature of Ext. P5. Pw. 13, the Circle Inspector of Police, who took up investigation of the case on 27th September, conducted searches of 8 houses on the 28th of September and he sent search-lists regarding these searches to the Magistrate. These lists were also received by the Magistrate on 8th of October. The irresistible conclusion from this is that Ext. P5. Pw. 13, the Circle Inspector of Police, who took up investigation of the case on 27th September, conducted searches of 8 houses on the 28th of September and he sent search-lists regarding these searches to the Magistrate. These lists were also received by the Magistrate on 8th of October. The irresistible conclusion from this is that Ext. P5 and the search lists must have been sent together and that they could not have been sent earlier than the 28th of September, on which date the searches were made. In the above circumstances the learned Sessions Judge was only right in hesitating to accept the prosecution case. We are inclined even to observe that the non-mention of the names of accused persons 14 to 25 in the first information report and the suspicious nature of Ext. P5 are by themselves sufficient for those accused persons to claim an acquittal. 7. Now that we are on this question regarding the unsatisfactory and suspicious nature of the investigation, we would further observe that the searches conducted by Pw.13 are also not beyond suspicion. Pw.13 took up the investigation of the case on the evening of the 27th of September, 1957. According to Pw.10, Pw.13 and himself were together for the whole day on the 28th of September from 10 or 11 in the morning and no searches were made by Pw.13 during this time. So that Pw.13 had to depose that all the searches were made by him between 7.30 and 9.30 a.m. on 28th September. As stated already, 8 houses were searched, the houses being not in the same locality, but situated in different localities. The learned advocate of the accused points out that it was not possible for Pw.13 to have conducted these eight searches within two hours and this contention appears to have considerable force. He invites our attention to another fact, that three witnesses in all the search lists are the same and that the 4th witness is common in six of the search lists. It is also pointed out by him that these witnesses are not persons living in the localities, where the searches were conducted. 8. Now we come to the merits of the case. It is also pointed out by him that these witnesses are not persons living in the localities, where the searches were conducted. 8. Now we come to the merits of the case. Before we consider the case of the accused persons who were admittedly present at the scene, we would dispose of the case of the accused persons, who have a case that they were not present at the scene of occurrence on that day. The 24th accused claims that he was at Mundakayam. Pw.10 himself admits that he saw him at Mundakayam at about 11.30 a. m. on the day of occurrence and Dw. 5, the Excise Inspector, deposes that he saw him at Cosmo Hotel in Mundakayam at about 1 p.m. The learned Sessions Judge has believed the evidence of Dw. 5 and we are not satisfied that he has erred in doing this. Therefore the acquittal of the 24th accused has to be sustained. Dw. 3 deposes that the accused persons 16 an 18 and himself were at the residence of the 16th accused from 12.30 to 1.45 p.m. on the day of occurrence. This evidence has also been accepted by the lower court and we have not been shown anything acceptable to hold that the learned Sessions Judge has gone wrong in accepting this evidence. Hence the acquittal of these two accused persons has also to be upheld. The learned Sessions Judge has further held that there was no evidence to show that accused persons 16, 20, 23 and 25 were present at the scene. Here also the learned Public Prosecutor has not shown anything to convince us that the learned Sessions Judge is wrong. Therefore we accept this finding also. Regarding accused persons 6 and 19 the learned Sessions Judge has been of the view that the evidence is not sufficient to hold that they were present at the scene and he has further held that, even if they wore present at the scene, there is no evidence to show that they did any overt act indicating that they shared any common intention with others who assembled there. It is not shown how the learned Sessions Judge is wrong in this view. Therefore the acquittal of accused persons 6 and 19 has also to be sustained. 9. It is not shown how the learned Sessions Judge is wrong in this view. Therefore the acquittal of accused persons 6 and 19 has also to be sustained. 9. Now we come to the case of the accused persons who were admittedly present at the scene of occurrence. The case of these accused persons is that they were thereto stage a black flag demonstration against the Minister and when the car approached the scene the car was slowed down by the driver, as there was metal and gravel collected on either side of the road and as there was also a crowd. Some people in the crowed shouted some slogans and finally the driver raised the engine of the car, when the crowd gave way and the car proceeded. According to these accused persons none of them either stopped the car or attempted to open the door of the car and none of them had any dagger or stick. They had only black flags with them. 10. The eye witnesses in the case are Pws.1 to 6 and 11 and 12. These witnesses fall into two separate groups. Pws. 1, 2,11 and 12 were in the car and Pws. 3 to 6 were alleged to be present on the scene of occurrence. Pws. 3 to 6 are members of the Communist Party. Dw. 2, who was a member of the Assembly and the President of the Vigilance Committee at Kanjirappally, produced Ext. D20, which is a list of the members of the Vigilance Committee. This shows to which party each of the members belonged and according to this list Pws. 3 to 6 belonged to the Communist Party. It is also in evidence that the accused persons did not belong to this party nor were they communist sympathisers. In these circumstances we are inclined to consider the evidence of these witnesses only with some amount of caution. In Para.27 of his judgment the learned Sessions Judge points out the several discrepancies appearing in the evidence of these witnesses. For example, Pw. 3 did not say in the committing Magistrate's Court that accused persons 9 to 11 had daggers with them, though the case before the Sessions Court was that they had daggers. In Para.27 of his judgment the learned Sessions Judge points out the several discrepancies appearing in the evidence of these witnesses. For example, Pw. 3 did not say in the committing Magistrate's Court that accused persons 9 to 11 had daggers with them, though the case before the Sessions Court was that they had daggers. The charge against accused persons 9 to 11 being under S.307, I.P.C., this is a very material fact, which should have appeared in the evidence at the earliest stage. The omission to mention the possession of daggers by these accused persons by Pw. 3 is really an omission, which is very material and which should be considered as a contradiction with his version in the Sessions Court. In the committing Magistrate's Court this witness pointed out the 23rd accused and said he was the 18th accused. Pw. 4 pointed out the 8th accused and said he was the 7th accused both in the committing Magistrate's Court as well as in the Sessions Court, though later on he seems to have indentified the 7th accused correctly in the Sessions Court. Pw. 5 did not tell the Circle Inspector that he saw accused persons 7 and 8 going near the car with daggers. This is also an omission which, in the circumstances of the case, could be classed as a contradiction. The version of Pw. 6 is that he went to the Telephone Office to book a call, but he admits that he did neither go to the Telephone Office nor book the call at any time that day. We have pointed out only a few of the contradictions and improbabilities pointed out by the learned Sessions Judge. In view of the above contradictions and improbabilities in the testimony of these witnesses pointed out by the learned Sessions Judge we feel that the learned Sessions Judge is only right in not acting upon their testimony. 11. Now we come to Pws. 1, 2,11 and 12, who were in the car. Of these Pw. 11 is not of much help, because admittedly he did not know any of the accused persons. It appears that he was not even able to recognise Pw. 10, who questioned him at the Government House at Kottayam on the night of the 26th of September. Pw.1 gives tuition to the children of Pw. Of these Pw. 11 is not of much help, because admittedly he did not know any of the accused persons. It appears that he was not even able to recognise Pw. 10, who questioned him at the Government House at Kottayam on the night of the 26th of September. Pw.1 gives tuition to the children of Pw. 2 and it is quite probable that he is giving evidence to oblige Pw.2. As we have already observed, Pws. 2 and 12 are brothers-in-law and they invited Pw. 11 for lunch at the residence of Pw. 2. The occurrence is alleged to have taken place on their way to the house of Pw. 2. Therefore there is some force in the argument of the learned advocate of the accused that since this incident took place on such an occasion and since Pw. 11 was insulted, naturally, Pws. 2 and 12 felt insulted too and that this mortification was responsible for foisting this case on the accused persons. Pw. 12 was asked to identify the 5th accused by the learned Sessions Judge. The witness went near the dock and touched the 24th accused and said he was the 5th accused. The 5th accused, according to the prosecution, was waiting in a jeep outside the Travellers' Bungalow at Kanjirapally and when the car taking Pws. 1, 2,11 and 12 to the residence of Pw. 2 came out of the Travellers' Bungalow, the 5th accused followed the car in his jeep and it was he who gave signs to the crowd to stop the car and attack the inmates. Pw. 12 failed to identify the 5th accused and Pw. 11 did not know any of the accused persons. The only witnesses, who knew the fifth accused and the others, are Pws.1 and 2 and in the circumstances already mentioned it cannot be said that the learned Sessions Judge has gone wrong in placing no reliance on the evidence of these witnesses. 12. Now we would consider one or two circumstances in the case which have been adverted to by the learned Sessions Judge for not believing the prosecution case. One is the failure of the prosecution to examine the driver of the car. He is the person most competent to speak as to why the car was stopped and as to whether anybody in the crowd stopped the car. One is the failure of the prosecution to examine the driver of the car. He is the person most competent to speak as to why the car was stopped and as to whether anybody in the crowd stopped the car. No explanation for the omission to examine this witness is forthcoming from the prosecution. Another circumstance is that there is no conclusive evidence as to the nature of the damage caused to the car. Ext. P1, the mahazar prepared by the head constable, and Ext. P3, the condition certificate of the car prepared by Pw. 9, do not tally regarding the damage to the car. Further, even if we hold that there was damage caused to the car, it is not possible in the circumstances of the case, to hold as to which of the accused persons actually hit on the car. In the absence of such specific evidence it is not possible to hold that any accused person was responsible for the damage caused to the car. 13. We would, in conclusion, make one observation regarding the charge under S.147 I.P.C. The evidence is neither sufficient nor satisfactory to hold that there was an unlawful assembly. As we have by this time indicated, we are inclined to believe that the purpose of the crowd was only to demonstrate with black flags and this was not an unlawful purpose. Therefore there is complete lack of evidence to show that there was a common object to commit any offence or illegal act by the crowd and in the absence of such common object any act, even if committed by one of the crowd, could not make the others liable. It is also not possible to hold, in the state of the evidence in the present case, that any particular accused person was responsible for any particular act. 14. In the above circumstances we have no hesitation in holding that the order of acquittal passed by the learned Sessions Judge is correct. Therefore the appeal fails and is dismissed. Dismissed.