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2025 DIGILAW 1713 (KER)

Mohanan S/o Thankappan v. State of Kerala

2025-06-25

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. 1. Accused Nos.1 and 2 in SC No.75/2011 on the files of the Additional Sessions Court-IV, Kottayam, has filed this criminal appeal challenging conviction and sentence imposed against him in the above case dated 07.05.2014. The respondent herein is the State of Kerala, represented by the learned Public Prosecutor. 2. Heard the learned counsel for the appellants/accused Nos.1 and 2 and the learned Public Prosecutor in detail. Perused the trial court records and the evidence in detail. 3. In this matter, the police filed final report alleging commission of offences punishable under Sections 143 , 147, 148, 324, 325, 323, 308 and 201 r/w Section 149 of the Indian Penal Code (hereinafter referred to as ‘ IPC ’ for short) by the accused. The allegation of the prosecution is that on 05.07.2009 at about 1 pm, all the accused formed themselves into an unlawful assembly, and in furtherance of their common object to attack PW2, came in a car owned by the 1 st accused near the shop of PW3 and A2 hit on the head of PW2 with an iron rod and again inflicted injury on the back side of head. A4 hit on the lower part of right knee and A1 and A3 stabbed PW2 when he fell down. A3 and A4 beat CW2 with an iron rod on his left leg, thereby causing fracture to the leg. It is alleged that the 1 st accused had some difference of opinion with PW2 at Kuttikkadu temple and due to this enmity, the accused attacked PW2. Thus the prosecution allegation is that the accused persons attacked PW2 with knowledge that their overt acts are sufficient to cause death of PW2. 4. The trial court after completing the formalities for trial, framed charge for the said offences and recorded evidence. 5. During trial, PW1 to PW9 were examined and Exts.P1 to P18 were marked on the side of the prosecution. Exts.D1 and D2 were also marked during cross- examination of the prosecution witnesses at the option of the accused. After completion of the prosecution evidence, even though the accused were given opportunity to adduce defence evidence after questioning him under Section 313(1) (b) of the Code of Criminal Procedure, they did not adduce any evidence. 6. Exts.D1 and D2 were also marked during cross- examination of the prosecution witnesses at the option of the accused. After completion of the prosecution evidence, even though the accused were given opportunity to adduce defence evidence after questioning him under Section 313(1) (b) of the Code of Criminal Procedure, they did not adduce any evidence. 6. Finally, the trial court found that accused Nos.1 and 2 committed offences punishable under Sections 143 , 147, 148, 326 and 308 r/w 149 of IPC . 7. During pendency of this appeal, the 1 st accused died and now the 2 nd accused alone is alive. While challenging the verdict of the trial court, it is pointed out by the learned counsel for the 2 nd appellant that the 2 nd appellant is innocent. According to the learned counsel for the 2 nd appellant, even though in the First Information Statement, involvement of 6 persons in this occurrence was stated, when PW1, who gave Ext.P1 statement, was examined, he deposed that only 4 persons were involved in this crime. Therefore, offence under Section 143 series would not attract. Further it is argued that even though the accused were identified, witnesses did not specifically identify the accused by pointing out them specifically and therefore, there is no proper identification. It is also submitted by the learned counsel for the 2 nd appellant that going by the statement of the injured, who was examined as PW2, the 1 st accused asked the 2 nd accused to chop PW2 and then the 2 nd accused, Sarath, chopped on his head, but it was restrained by using his left hand and the same caused injury on his left hand and it was bleeding. Thereafter, the evidence of PW2 is that some others beat him on his right hand by using an iron rod and thereby he fell down. The further version of PW2 is that Mohanan (A1) and others had beaten him and kicked him. According to the learned counsel for the 2 nd appellant, the only overt act against the 2 nd accused is that he attempted to beat on the head of PW2 but when it was restrained, the same caused an injury on his left elbow. According to the learned counsel for the 2 nd appellant, the only overt act against the 2 nd accused is that he attempted to beat on the head of PW2 but when it was restrained, the same caused an injury on his left elbow. Accordingly, it is pointed out by the learned counsel for the 2 nd appellant that since the presence of only 4 persons is deposed by all the witnesses, offence under Section 143 series would not attract. That apart, even taking the overt acts at the instance of the 2 nd accused, the same also would not attract the offence under Section 308 of IPC . 8. The learned Public Prosecutor would submit that the identification of the 2 nd accused is substantially proved in this case and in the First Information Statement, involvement of 6 persons stated. Therefore, the contention raised by the 2 nd appellant/ 2 nd accused as advanced would not save the accused and therefore, the conviction and sentence are to be confirmed. 9. Addressing the rival submissions, the points arise for consideration are; 1. Whether the trial court is justified in holding that the 1 st and 2 nd accused committed offence punishable under Section 143 r/w 149 of IPC ? 2. Whether the trial court is justified in holding that the 1 st and 2 nd accused committed offence punishable under Section 147 r/w 149 of IPC ? 3. Whether the trial court is justified in holding that the 1 st and 2 nd accused committed offence punishable under Section 148 r/w 149 of IPC ? 4. Whether the trial court is justified in holding that the 1 st and 2 nd accused committed offence punishable under Section 326 r/w 149 of IPC ? 5. Whether the trial court is justified in holding that the 1 st and 2 nd accused committed offence punishable under Section 308 r/w 149 of IPC ? 6. Whether the trial court verdict requires interference? 7. Order to be passed? 10. On going through Ext.P1 statement given by PW1, who is the brother of PW2, he deposed that he came to know about the occurrence whereby his brother sustained injuries and was taken to hospital. 6. Whether the trial court verdict requires interference? 7. Order to be passed? 10. On going through Ext.P1 statement given by PW1, who is the brother of PW2, he deposed that he came to know about the occurrence whereby his brother sustained injuries and was taken to hospital. Soon he reached the hospital and found that PW2 sustained injuries on his head, hand and right leg and he understood that Mohanan (A1), his son (A2) and two others attacked PW2. It is true that before start of trial, the original 4 th accused, Shibu, died and his case was abated. Going through the evidence of PW1, it is emphatically clear that the presence of 4 persons alone was deposed by PW1. 11. Coming to the evidence of PW2, he also deposed in support of the prosecution on asserting that at about 1 pm on 05.07.2019 while he was at Divan Kavala, Mooledam, A1 (Mohanan) and A2 (Sarath) along with others reached in a car bearing registration No.KL-51-Z 3344 and went out of the car. Then Mohanan directed his son, Sarath to beat on his head and soon, Sarath attempted to chop on his head and when it was restrained, the same caused injury on his left elbow. His evidence further is that some among them, beat on his head and the same caused injury on his head. Another person also beat on his hand and thereby he sustained fracture. Thereafter, Mohanan and others had beaten and kicked him. He was taken to Medical College Hospital and he identified the accused as A1, A2, A3 and A4 at the dock. In no way, PW2 identified A1 as Mohanan, A2 as Sarath and A3 and A4 by their name. According to PW2, the motive behind this crime is difference of opinion in between A1 and PW2 while they were acting as the members of the Kuttikkad Devi Temple committee. During cross-examination, PW2 deposed that Mohanan followed him with gundas and 2 persons chopped him by using a sword stick. In fact, in the evidence of PW2 also, there is nothing to show that five persons attacked him with certainty. Further, the identity also not fully established. Even though the prosecution examined PW3 to prove the occurrence and he supported attack against PW2, he did not identify the assailants and accordingly, he was declared hostile. In fact, in the evidence of PW2 also, there is nothing to show that five persons attacked him with certainty. Further, the identity also not fully established. Even though the prosecution examined PW3 to prove the occurrence and he supported attack against PW2, he did not identify the assailants and accordingly, he was declared hostile. PW4 examined in this case is also declared hostile since he did not support the prosecution case. PW5 is one Ratheesh K.Prasad and he supported the prosecution case and he deposed that when he reached near the shop room of PW3, the accused escaped in a car and altogether 4 persons were there and out of which, he is so familiar with A2 and he did not see A1 specifically. 12. Ext.P1 First Information Statement was recorded in this case by PW7, the then Assistant Sub Inspector of Chingavanam Police Station and he had registered Ext.P6 FIR. PW6 is the witness to Ext.P5 mahazar, whereby KL-51-Z 3344 car was taken into custody. He supported the recovery. Ext.P7 search memo, Ext.P8 search list, Ext.P9 forwarding note of the vehicle and Ext.P10 to 17 were marked through PW8, the Sub Inspector of Police, Chingavanam Police Station on 03.07.2009 since the investigating officer Sri.Rajan was bedridden during trial. 13. As far as the injuries sustained by PW2 are concerned, apart from the evidence of PW2, Dr.Aneen, examined as PW9, gave evidence supporting Ext.P18 wound certificate. PW9 deposed that he had examined PW2 on 05.07.2009 while working as lecturer in Orthopedic, Medical College Hospital, Kottayam, and noted the following injuries. (1) Lacerated wound 2x2 cm and anterior aspect of right leg (2) Lacerated wound 6x3 cm over right lateral malleolus (3) Lacerated wound 5x1 cm on anterior aspect of left leg. (4) Lacerated wound 6x2 on left side of scalp (5) Lacerated wound 7x3 cm left elbow 14. X-ray revealed that there was a segmental fracture on both bones of right leg. The doctor opined that the above injuries could be caused by using a ‘sword stick’. Anyhow, the weapon alleged to have used to attack PW2 neither recovered nor produced. 15. The interesting question in this case to be decided first is whether prima facie offence under Section 143 series would attract in the instant case. Section 143 of IPC provides that whoever is a member of an unlawful assembly, shall be punished with imprisonment. Anyhow, the weapon alleged to have used to attack PW2 neither recovered nor produced. 15. The interesting question in this case to be decided first is whether prima facie offence under Section 143 series would attract in the instant case. Section 143 of IPC provides that whoever is a member of an unlawful assembly, shall be punished with imprisonment. The term ‘unlawful assembly’ is defined under Section 141 of IPC and as per which unlawful assembly means, an assembly of 5 or more persons, if the common object of the persons composing that assembly is discernible. In the instant case, even though in the First Information Statement, the presence of more than 5 persons stated by the brother of PW2 who gave Ext.P1 statement, during evidence, he also stated that only 4 persons were present during the occurrence. None of the witnesses examined on the side of the prosecution, including PW2 and PW4, otherwise stated that five or more persons were present at the scene of occurrence. In order to attract the offence of unlawful assembly, the ingredients are (i) there was an assembly of five persons, (ii) the assembly had a common object and (iii) the said common object was to consist one or more of the five illegal objects specified in section 141 IPC . Thus, in the instant case, the prosecution miserably failed to prove that there was an unlawful assembly of five or more persons, sharing common object to commit crime and therefore, the trial court went wrong in finding that accused Nos.1 and 2 committed offences punishable under Sections 143 , 147, 148, 326 and 308 r/w 149 of IPC and therefore, the said conviction and the corresponding sentence shall not sustain in the eye of law. It is true that as per the evidence of PW2 and that of PW9 (the doctor), PW2 sustained fracture to both legs. Segregating the overt acts, the first and second accused did not beat on the leg of PW2. PW2 or any other witness gave evidence supporting who beat on his leg which resulted in fracture. Thereby the other accused were acquitted by the trial court. Segregating the overt acts, the first and second accused did not beat on the leg of PW2. PW2 or any other witness gave evidence supporting who beat on his leg which resulted in fracture. Thereby the other accused were acquitted by the trial court. When unlawful assembly by involving five or more persons could not be found on evidence, the impact of Section 149 of IPC providing that every member of unlawful assembly is guilty of offence committed in prosecution of common object also would not apply. 16. It is interesting to note that in order to fasten criminal culpability upon an accused, there must be identification of the accused with certainty. It is true that A1 is the father of A2 and according to PW2, they were familiar to each other since they worked in Kuttikkad Devi Temple committee. But on perusal of the evidence of PW2, it could not be found that PW2 identified the accused persons specifically, instead of PW2 identified A1, A2, A3 and A4 at the dock in common. When more than one accused involved in a crime, the victim or the occurrence witness must identify them specifically with certainty. That is to say, the identification must be by deposing the specific overt act/s done by the particular accused after pointing him at the dock specifically. Mere evidence given by the victim or witnesses stating that A1, A2, A3 etc., the accused at the dock, committed the offence is not proper way of identification. If the role of each accused is not specifically deposed by pointing a particular accused, the identification is insufficient to hold that the particular accused involved in this crime by doing particular overt acts. It is relevant to note that the identification of A1 to A4 as the assailants without specifically saying who had beaten on the legs and head of PW2, without identifying the accused by pointing him specifically at the dock, could not be sufficient to prove the identity of the accused. It is true that PW4 testified that he was so familiar with the 2 nd accused when he witnessed the departure of the assailants in a car after the occurrence. But PW4 did not witness the occurrence. Then the crucial evidence of PW2 is relevant in the matter of identification of the assailants. It is true that PW4 testified that he was so familiar with the 2 nd accused when he witnessed the departure of the assailants in a car after the occurrence. But PW4 did not witness the occurrence. Then the crucial evidence of PW2 is relevant in the matter of identification of the assailants. PW2 did not identify accused Nos.1 and 2 or other accused specifically as already observed. Thus in the instant case, though the ingredients to attract the offences under Sections 326 and 308 of IPC could be gathered, the identity of accused Nos.1 and 2 not established so as to fasten the criminal culpability upon them. It is interesting to note that the other accused, who involved in the incident and who caused fracture to both bones of PW2, were acquitted while convicting accused Nos.1 and 2 alone, though their complicity in the matter is much lesser than the other accused, where offences under Sections 143 and 149 of IPC could not be found. Since the identity of accused Nos.1 and 2 was not established to hold that he had committed the offences, conviction for offences punishable under Sections 326 and 308 of IPC also would not stand in the eye of law. In such view of the matter, the verdict under challenge would require interference. 17. It is true that the 1 st accused is no more in a case where the court imposed imprisonment and fine against the 1 st accused also. Since the 2 nd accused is his son, he deemed to be representing the 1 st accused. Therefore, I am inclined to set aside the conviction as well as the sentence imposed against accused Nos.1 and 2 in this case. In the result, this appeal succeeds and the conviction and sentence under challenge, imposed against the 1 st and 2 nd accused, stand set aside. The 2 nd accused is set at liberty forthwith. The bail bond of the 2 nd accused is cancelled. Realisation of fine from the assets of the 1 st accused also does not arise as a sequel thereof. Registry is directed to forward a copy of this judgment to the trial court forthwith for information and compliance.