Prathapan & Ors. vs State Of Kerala

The judgment in S.C.No.300/2002 on the files of the Additional Sessions Court (Adhoc) III, Thalasserry is under challenge in this appeal filed by accused Nos. 1 to 5, who are the appellants herein.

Heard the learned counsel for the appellants/accused as well as the learned Public Prosecutor. Perused the judgment under challenge along with the records of the Sessions Court.

The prosecution case is that accused Nos. 1 to 7 formed themselves into an unlawful assembly, armed with deadly weapons knowing fully well that they were all members of the said assembly and caused grievous hurt to PW1 – Sureshbabu with intention to do away him. Though PW1 survived, he sustained serious injuries in the occurrence and on the said premise, the prosecution alleges commission of offences punishable under Sections 143, 147, 148, 326, 307 read with 149 of Indian Penal Code (for short 'IPC'), by the appellants/accused Nos.1 to 5.

On receipt of the final report, the learned Magistrate committed the case to the Court of Session. The learned Additional Sessions Judge, upon committal, completed the pre-trial formalities and framed charge for the said offences. Thereafter, PW1 to 9 were examined and Exts.P1 to P10 as well as MO1 to MO5 series were marked on the side of prosecution. DWs 1 and 2 were examined and Exts.D1 to D6 were marked on the side of the defence, out of which, Exts. D1 to D3 are contradictions extracted during examination of PW1. On an evaluation of the evidence, the learned Sessions Judge found that accused Nos.1 to 5 committed offences punishable under Sections 143, 147, 148, 326 and 307 read with Section 149 of IPC while acquitting A6 and A7 for want of evidence. Accordingly, A1 to A5 are sentenced as under:

The learned counsel for the appellants/accused Nos. 1 to 5 submitted that the prosecution mainly relied upon the evidence of PW1, the injured, PW2, who alleged to have witnessed the occurrence, and PW5, who was cited as a chance witness, while recording conviction and sentence on the appellants. According to the learned counsel for the appellants, on scrutiny of the evidence tendered by PW1, the same would show that he had identified A1 Prathapan as the person who stabbed him with a weapon and A2 Sumesh and A5 Sasidharan, as the persons who facilitated the attack by caught hold of him. As far as accused Nos.3 and 4 are concerned, PW1 not identified them. The learned counsel for the appellant submitted that PW2 also did not identify A4 and A5. It is pointed out that PW5 alone identified all the accused among the persons who assembled at the scene of occurrence as assailants by stating their names as Prathapan, Sunilkumar, Pramod, Sumesh, Sundaram and Sasi, who were at the dock without specifically identifying them individually.

The learned counsel submitted that in Mohanan v. State of Kerala, (2025 KHC OnLine 662) this Court considered the mode of identification of the accused in Court, as stated in paragraph 16 and held that if the role of each accused is not specifically deposed by pointing a particular accused at the dock, the identification is insufficient to hold that the particular accused involved in the crime by doing particular overt acts. It is relevant to note that the identification of A1 to A5 as the assailants without specifically stating their overt acts and without identifying the accused by pointing them individually at the dock, would not be sufficient to prove the identity of the accused as the assailants. Therefore, the identification of accused Nos. 1 to 5 by PW5 does not satisfy the legal requirements of identification and therefore, the findings against A3 and A4 are liable to be interfered with by this Court. The learned counsel also submitted that PWs 1, 2 and 5 are interested witnesses being the members of the same political party and the occurrence, as alleged by the prosecution, was the result of political rivalry between them. The learned counsel for the appellants therefore submitted that the accused are entitled to benefit of doubt.

The learned Public Prosecutor zealously opposed interference in the verdict impugned and supported the findings of the trial court. It is submitted that the evidence of PW1 to PW3 would categorically establish the involvement of A1 to A5 in the crime. It is further submitted that PW5, who gave Ext.P4 FIS on 18.11.1999, had identified all the accused and, therefore, the contention raised by the learned counsel for the appellants regarding the identity of accused Nos.3 & 4 cannot be accepted.

Addressing the rival submissions, the points arise for consideration are:

whether the Sessions Court is justified in holding that appellants/accused Nos. 1 to 5 committed offence punishable under Section 143 read with 149 IPC ?

whether the Sessions Court is justified in holding that appellants/accused Nos. 1 to 5 committed offence punishable under Section 147 read with 149 IPC ?

whether the Sessions Court is justified in holding that appellants/accused Nos. 1 to 5 committed offence punishable under Section 148 read with 149 IPC ?

whether the Sessions Court is justified in holding that appellants/accused Nos. 1 to 5 committed offence punishable under Section 326 read with 149 IPC ?

whether the Sessions Court is justified in holding that appellants/accused Nos. 1 to 5 committed offence punishable under Section 307 read with 149 IPC ?

Whether the trial court verdict requires interference?

Order to be passed.

The prosecution case is that at about 9.45 a.m on 18.11.1999 the accused Nos.1 to 7 formed themselves into an unlawful assembly with deadly weapons with intention to do away PW1 Sureshbabu in prosecution of their common object and they jointly assaulted him to accomplish their goal. Even though Sureshbabu had sustained serious injuries in the incident, he survived. The injuries sustained by him were spoken to by the doctor who examined as PW7, and Ext.P5 Wound Certificate got marked in evidence through him.

PW1 is the injured victim in this case. He had deposed that he was a Teacher at Thalassery St. Joseph High School. He was the Local Secretary of CPM and Area Committee member and Thalassery Area Secretary of Puroogamana Kala Sahithya Sangham. According to him the occurrence was on 18.11. 1999 at about 9.45 am at Аzad library in National Highway. The exact place of occurrence according to him was north of the Fort and south of the quarters of Fire station. He testified that when he was going to the school, he was assaulted and the place of occurrence is on the way to the School. According to him, since DEO was coming to the School that day he was walking towards the School. When he reached the Junction near the house of one Doctor Sebastian he found two persons in front of him whom he knew earlier. Those two persons were A7 Kunnummal Rajeevan and A6 Sundarm. He found that Rajeevan was pointing out him by raising his hand. By then a car stopped there and 5-6 persons got out from the car held him on his two sides and another person stabbed him with weapons having sharp edge on two sides, on his stomach. Then he became half conscious and raised hue and cry. He identified the person standing third in the accused dock as the person who stabbed on the left side of his stomach (witness had pointed out A1 Prathapan). Pointing out A2 Sumesh and A5 Sasidharan. Witness had deposed that they caught hold him. Thereafter he was cut with sword on his head on both sides back, left leg, hand etc. He had seen sword in the hands of A5 Sasidharan. There was a weapon like sword billhook and weapon having sharp edge on both sides of the blade in the hands of six persons. He had further deposed that one person in that gang assaulted him not present in court. Thereafter he regained conscious at Thalassery Co-operative Hospital. He did not know who took him to the hospital. He testified that he was attacked with an intention to kill him and in the occurrence his lunch box and answer papers, kept in a plastic cover were lost. He did not notice whether anybody had seen the incident. Apart from these accused persons there were some others also who came there hearing his hue and cry. According to PW1, political enmity led to this occurrence as he was the Local secretary of CPM, during the time of occurrence and the accused were BJP/RSS workers. After few days of the occurrence he had handed over the clothes that he worn at the time of the occurrence to the police from the hospital. He identified MOs 1 to 3, his shirt, baniyan and trouser as the dress he had worn at the time of occurrence. Since the Dothi he wore at the time of occurrence was lost at the hospital, he could not produce the same before the police. After he regained conscious Magistrate had come to the hospital and recorded his statement. He had admitted Ext P1 as the said statement and his signature therein. Thereafter also he had given a statement to the police from the hospital when he handed over MOs 1 to 3 to the police.

Coming to the evidence of PW2, he testified that at the time of the occurrence he was working in a Bus Body Building Workshop in Eranholipalam and that he witnessed the occurrence. According to him, the occurrence was at 9.45 am on 18.11.99 in front of Tellicherry Fort behind the quarters of Fire Service. He had gone near Azad Library near Tellicherry Fort to see one Ramachandran who was a driver of Pick Van Mahindra which engaged in picking children to School. He reached near Azad library by about 9.30 am. He did not find Ramachandran there. On enquiry he came to know that Ramachandran had gone towards St Joseph School side with vehicle taking the school children. So he went to the School by the side of the Fort. Doctor Sebastian's house was on the way to the School. He deposed further that he was a patient of Dr Sebastian for the treatment of Allergy and Isnophilia and he consulted him 1½ weeks before the occurrence. So on the way to the School he went to the Doctor's house. Then there were some other patients in that Doctor's house and he found one Usman there who was known to him. While so when he was talking with Usman he heard a sound of cry from the way by the side of the Fort. So he and Usman ran to that spot. Then from a distance of about 20 metres he saw about 5-8 persons circling PW1 who was known to him and cutting PW1 with weapons. He identified A2 Sumesh and A5 Sasi. Then he saw one person holding a dagger like thing having length of about 8-9 inches having blood. He identified the said person as accused No.1 Prathapan, who was so holding that weapon with blood. When PW2 and Usman went near PW1 the assailants ran towards School side. Then one Chandran came from Azad library side and Usman and Chandran took PW1 to hospital in an autorickshaw. After the incident he went to his workshop and told the incident to his colleagues. Then he went to the hospital to see PW1. But he could not see PW1 as he was at the ICU. By then Usman also came to the Hospital. Then both himself and Usman went to the Police Station and told the incident to the police. Then police asked them to show the place of occurrence. As such they went to the place of occurrence along with the police. Then police inspected the place of occurrence and prepared Ext P2 scene mahazar in which he has signed as a witness. He had seen police seizing chappals, lunch box, pieces of granite stones etc, from the place of occurrence. He identified MOs 4 and 5 as the chappals, lunch box and pieces of stones that were seized by the police from the place of occurrence.

The Judicial First Class Magistrate, Thalassery who recorded Ext. P1 statement of PW1 from Thalassery Co-operative Hospital at 5.40 pm on 18.11.99 was examined as PW3 and he fully supported the prosecution in this regard.

PW4 was an attesior to Ext.P3 seizure mahazar as per which MOs 1 to 3 blood stained clothes were seized by the police.

PW5 is the first informant. He had deposed that he had seen the incident and that the incident was at 9.45 am in the month of November 1999 in front of Thalassery Fort. He had found 5-6 persons cutting PW1 Suresh Babu with weapons. He knew PW1 Suresh Babu as he was the local secretary of New Mahe and CPM Area Committee member. PW1 was working as a Teacher at St. Joseph School. According to him, the place of incident is the way by the side of the Fort leading to that School. When he went to the place of incident he found PW1 Suresh Babu, was assaulted by using weapons exhorting "കൊട്ടാര". When he reached there the assailants left the place towards Beach side stating "അവന്റെ കഥ കഴിഞ്ഞു". He could identify the assailants as Prathapan, Sunilkumar, Pramod, Sumesh, Rajeevan, Sundaram and Sasi. One Suresh was also there at the place of occurrence. He knew all of them before the occurrence and he generally identified accused Nos.1 to 5 as the assailants without pointing them from among A1 to A5. Then Suresh Babu Master (PW1) went towards Azad library road and PW5 went behind him. Then PW1 was taken to Thalassery Co-operative hospital in an autorickshaw and admitted there. Thereafter he went to his house to change his dress. When he was waiting for the doctor Prajith was also there in Sebastian Doctor's courtyard. Prajith had also come to the place of occurrence. Thereafter by 3 pm he went to Thalassery Cooperative Hospital. Then PW1 Suresh Babu was at the ICU. Then a hospital staff told him that as an eye witness to the occurrence, he had to inform the incident to the police. As such he and Prajith went to the police station and that police recorded what he stated. He identified Ext.P4 F.I. Statement so given by him. Thereafter as directed by the police he went to the place of occurrence and shown the place of occurrence to the police.

The Head constable at Thalassегу Police station was examined as PW6. He deposed that while working so at about 16.00 hours on 18.11.1999, PW5 Usman came to the station and told about the occurrence. He recorded F.I statement of PW5 and on that basis registered Ext P4(a) FIR u/s 143, 147,148,307 r/w 149 IPC. 16. Ext.P5 in this case is the wound certificate issued by Dr.K.P.T Abdulla, while working as the Chief Medical Officer at Co-operative Hospital, Thalassery. Since Dr.K.P.T Abdulla passed away, Ext.P5 tendered in evidence through PW7, who worked along with Dr.K.P.T Abdulla, by identifying the handwriting and signature of Dr.K.P.T Abdulla in Ext.P5.

The CI, Thalassery who investigated the case got examined as PW8. According to him he had investigated the case from 18.11. 1999 to 9.6.2000. On 18.11.99 he had inspected the place of occurrence and prepared Ext.P2 scene mahazar. As per Ext. P2 scene mahazar he had seized M04 chappals, M05 pieces of stones, a black rexin hand bag and a plastic bag. He had questioned witnesses and recorded their statements. During investigation on 19.11.99, he had arrested the accused Sundaran and produced him before the court. Ext. P6, the arrest memo prepared by him while arresting A6 Sundaram was tendered in evidence through him. On 29. 11. 99 he had seized MOs 1 to 3 bloodstained clothes of PW1 as per Ext.P3 seizure mahazar. During investigation he had submitted the original of Ext P7 forwarding note for sending the MOs for chemical examination. It was through him, Ext.P8 the chemical analyst report obtained in this case was tendered in evidence. Ext.P9 report to add Sec. 326 IPC also was tendered in evidence. During investigation it was revealed that V.P.Suresh named in FIR was not involved in this crime and accordingly he had filed Ext. P10 report to delete him from the array of the accused. PW9 was the C.I who completed investigation and submitted charge sheet in this case. He supported the prosecution case in the above line.

On the side of the defence, DW1 and DW2 were examined and Exts.D5 and D6, which are a few complaints submitted by the people in the locality were marked in evidence. In fact, A6 and A7 were acquitted and the learned counsel for the appellants did not point out anything in the evidence of DW1 and DW2 in support of the appellants.

In the instant case, PW7, the doctor who issued Ext.P5 wound certificate after examination of PW1 noticed the following injuries:

The learned Sessions Judge found that commission of offence under Section 326 of IPC was established by the prosecution based on the evidence of PW7 stating that the injury No.3 falls under first part of the 8^th category of Section 320 IPC . On evaluation of evidence, it is found that some immaterial omissions were extracted during the cross-examination of PW2 and PW5. Even though two contradictions were marked, when PW1 was examined, the same are not so material to disbelieve the evidence of PW1. The evidence of PW1 otherwise appears to be convincing and reliable, even when considered along with the evidence of PW2. When considering the evidence of PW1, it could be gathered that while A2 and A5 caught hold of PW1, A1 inflicted the stab injuries to PW1. However, PW1 did not point out either A3 or A4 at the dock as the assailants. Even though PW1 generally stated their involvement in the assault, he did not attribute any overt act against A3 and A4, and he failed to mention their names as persons who were present as part of the unlawful assembly at the place of occurrence. The finding of the learned Sessions Judge is that A3 and A4 also involved in this crime as part of unlawful assembly. The legal position is not in dispute that the presence of a person at the place of occurrence as part of unlawful assembly even without any specific overt act alone is necessary to hold such person liable under Section 149 of IPC read with Section 143 of IPC, when such person's presence as part of unlawful assembly could be found from the evidence adduced. Here, PW1, the injured victim specifically testified about the overt acts done by A1, A2 and A5, but he did not speak any specific overt acts against A3 and A4 or he did not identify them. Thus, their role in this occurrence could not be found based on the evidence of PW1. This is the reason why the learned counsel for the accused argued to substantiate acquittal of A3 and A4 though he did not argue any sustainable contentions to record acquittal of A1, A2 and A5 other than pointing out the fact that the witnesses deposed in support of the prosecution are interested witnesses. Thus the argument as regards to A3 and A4 at the instance of the learned counsel for the appellants found to be sustainable while holding that the evidence of PW1 regarding the involvement of A1, A2 and A5 is credible and acceptable, which is well corroborated by the evidence of PW2 as well. But the evidence of PW5 supporting the evidence of PW1 and PW2 as regards to the occurrence though acceptable, PW5 failed to specifically identifying A1 to A5. Hence A3 and A4 were not specifically identified by PW1 to PW3 though the involvement of A1, A2 and A5 is specifically deposed by PW1 and PW2 describing their specific overt acts. Therefore, the finding of Sessions Court that A2 and A5 along with A1, A3 and A4 committed offences punishable under Sections 143, 147, 148 read with 149 and other offences under the IPC will not stand in the eye of law, though the finding of the Sessions Court regarding commission of offences punishable under Section 326 as well as 307 of IPC by A1, A2 and A5 would stand in the eye of law.

In so far as the contention raised by the learned counsel for the appellants citing the occurrence witnesses as interested witnesses and no independent witnesses either cited or examined by the prosecution, the said contention in the facts of the case, found to be not acceptable, since the presence of PW2 and PW5 at the place of occurrence as chance witnesses need not be disbelieved. Otherwise, the version of PW1, the injured witness as regards the overt acts of A1, A2 and A5 are wholly reliable and acceptable to enter into conviction, without corroboration.

Therefore, the appeal is liable to be allowed in part. Accordingly the conviction imposed by the learned Sessions Judge for the offences punishable under Sections 326 and 307 of IPC as against accused A1, A2 and A5 is confirmed while acquitting them for the offences punishable under Sections 143, 147 and 148 read with Section 149 of IPC. Accused Nos.3 and 4 are acquitted finding that they did not commit any offences alleged by the prosecution.

Coming to the sentence, the learned counsel for the appellants pressed for leniency in sentence, considering the present situation of the appellants 1,2 and 5. Accordingly, the sentence is reduced as under:

ii) Appellants 1, 2 and 5/Accused 1,2 and 5 are sentenced to undergo rigorous imprisonment for 3 years and a fine of Rs. 20,000/- (Rs Twenty thousand only) each and in default of payment of fine to undergo rigorous imprisonment for 5 (five) months each for the offence u/s 326 IPC r/w 149 IPC.

iii) Substantive sentence shall run concurrently, default sentence shall run separately. Set off is allowed u/s 428 of Code of Criminal Procedure (for short 'Cr.P.C'). If the fine amount would be paid and realized Rs.50,000/-(Rs.Fifty thousand only) shall be paid to PW1 as compensation u/s 357(1)(b) of Cr.P.C.

The bail bond of the appellants stands cancelled and appellants 3 and 4 are released forthwith. Appellants 1, 2 and 5/Accused 1,2 and 5 are directed to surrender before the Sessions Court, forthwith to undergo the modified sentence, failing which the Sessions Court is directed to execute the sentence without fail.

Registry is directed to forward a copy of this judgment to the Sessions Court forthwith for information and compliance.