STATE OF KERALA Vs. SUSEELAN PILLAI

JUDGEMENT

(1.) This appeal is filed by the State against the acquittal of the accused. Respondents herein were accused Nos. 1 to 9 and 11 to 13 in Sessions Case No. 32 / 93 on the file of the Additional Sessions Court, Patanamthitta. The Circle Inspector of Police, Thiruvalla filed a charge sheet against 13 accused alleging offences punishable under S.143, S.147, S.148, S.149, S.447, S.324, S.109, S.307, S.302 and S.120 - B of the Indian Penal Code. Since tenth accused was absconding the case against others were committed and tried by the Sessions Court.

(2.) According to the prosecution, all 13 accused persons were RSS workers. The 13th accused was the Chengannur District Organiser of RSS. On 1-4-1991, at about 8.30 pm. while A 13 was riding a scooter, one hand cart, owned by PW 1 dashed against his scooter at Aykarapadi Junction, Kallooppara, which resulted in an altercation with PWs 2, 11, 21 and 22. During the altercation, PW 2 gave a slap on the face of A13. So, in order to take revenge on PW 2 at the instigation of A13, the other accused unlawfully assembled in the office of Sasthankal temple, Kallooppara at 9.30 p.m. on 7-4-1991 and decided to kill PW 2 when he comes to his Cocoa Plantation situated on the eastern side of the temple. In prosecution of the common object of the unlawful assembly, on 8-4-1991 at 9.00 a.m. A1 to A7, armed with deadly weapons, trespassed into the Cocoa Plantation in order to guard A1 to A7. On seeing PW 2, A6 shouted to kill him. Then A1 to A7 confined PW 2, A2 cut his right hand with a dagger, A3 stabbed his chin, A4 caused a contusion on his forehead by hitting with a stone. Hearing the hue and cry of PW 2, PW 1 and his father George came to the scene of occurrence. On seeing them A6 ordered others to kill them. A6 pelted a stone at PW 1. It hit on his back and he sustained injuries. A1 stabbed on the chest of George and he sustained a penetrating injury and died. There by they committed the offence punishable under S.143, S.147, S.148, S.149, S.447, S.324, S.109, S.307, S.302 and S.120 - B of the Indian Penal Code. All accused denied their involvement in the crime. Contention taken up by the defence was that there was no evidence to prove criminal conspiracy. It is not even proved that A1 to A12 are RSS workers or A13 abetted A1 to A12 to commit any offence. They never formed any unlawful assembly and case was charged against them on mistaken identity. PWs 1 and 2 were the only occurrence witnesses. PW 1 is the son of the deceased. PW 2 is the brother of the deceased. They were injured also. PW 1 gave Ext. P1 first information statement before PW 25 Sub Inspector of Police on the same day. Ext. P1(a) is his body note. Ext. P22 FIR was sent to the Magistrate on the same day. Ext. P1 FI statement and Ext. P22, FIR on 8-4-1991 did not mention names of the accused. Ext. P25 report was filed stating the names of the accused. PW 26 Circle Inspector of Police investigated the case.

(3.) PW 1 who gave Ext. P1 first information and who is the son of the deceased deposed that there was a Cocoa Plantation on the southern side of their property which belonged to PW 2. On 8-4-1991 at about 9.30 am. while he was digging pits for planting plantains in their property, he heard a cry from the southern Cocoa Plantation. Hearing the cry, he and his father went to the plantation. Then, they saw some six or seven persons standing around PW 2. One among them shouted to kill PW 2. He identified A4 as the person who shouted to kill PW 2. Then, one among them cut PW 2 with a long knife. He warded off the cut with his right hand. So, his index finger of right hand sustained injury. He identified A2 as the person who cut PW 2. Then, another person among the seven, stabbed on the chin of PW 2 and he sustained injury on chin. He identified A3 as the person who stabbed PW 2. Another person threw a stone at PW 2. He was standing in the northern road of the Cocoa Plantation. Seeing him, four persons went towards him. One among them threw a stone at him. It hit on his back. At that time another person among them stabbed his father. His father fell down . He cried loudly, People in the locality gathered. They took PW 2 and his father to Government Hospital, Mallappally. At 11 .00 a.m. one Babykutty came and told him that his father died. At 11. 30 am. he went to Keezhuvaipur Police Station and gave Ext. P1 FI statement before the Sub Inspector of Police. He identified his signature in Ext.P1 FI statement. He identified the person who stabbed George, his father, as A1. During cross examination, he deposed that when he went to the Cocoa Plantation, PW 2 was surrounded by a group of six or seven persons. Cocoa Plantation in the property were having thick growth as they were 22 years old plants. He never knew the accused earlier. He also stated that his father also came to the plantation and four persons came near his father. He did not notice whether they had any weapon with them. He did not look at them. Out of fear, he went back to his compound as soon as he was hit by a stone. "(Vernacular matter is omitted)." While he was running, he saw his father was surrounded by three persons. But, he affirmed that he saw his father was being stabbed while he stood on the road even though this factor was omitted to be mentioned in Ext. P1 FI statement. He also stated that he did not enter into the Cocoa Plantations and did not go near PW 2. "(Vernacular matter is omitted)". He also stated that he did not remember the dress worn by the accused. He knew the names of persons from the people of the locality after the incident. He also deposed that he had only hearsay information that the accused were RSS workers.