SUBASH Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is the sixth accused in Crime No. 151 of 2001 of Nooranadu Police Station and SC No. 966 of 2003 of the Court of learned Additional Sessions Court, Fast Track (Ad hoc), Mavelikkara for offences punishable under Sections 143, 147, 148, 149, 323, 324, 447 and 307 read with Section 149 of the Indian Penal Code. Case is that petitioner and others on account of political enemity towards PW1 formed unlawful assembly on 13/05/2001 at about 7 p.m., committed rioting armed with deadly weapons, attacked PWs 1 and 2 to 7 and thereby committed the said offences. All the accused other than petitioner and accused 8 were acquitted as per Annexure 4, judgment of learned Additional Sessions Judge. PETITIONER seeks benefit of that acquittal. Learned counsel has contended that in view of Annexure 4, judgment proceeding with prosecution of petitioner is of no use since that judgment affected the substratum of prosecution case. Learned Public Prosecutor has submitted that petitioner was not available for trial and hence benefit of Annexure 4, judgment need not be extended to him.

(2.) PETITIONER was not mentioned by name in the first information report. He comes among the 'identifiable persons' referred to therein. No doubt, it is not necessary and not the requirement of law also that all the accused must be named or mentioned in the FIR. It is the responsibility of Investigating Officer to trace out all persons who are involved in the commission of the crime. But if the substratum of prosecution case is affected by Annexure 4, judgment whereby all accused other than petitioner and accused 8 were acquitted, certainly there is no reason why request of petitioner shall not be accepted. It is profitable to refer to the relevant observations in Annexure 4, judgment. In paragraph 40, learned Additional Sessions Judge has observed referring to the Mahazar prepared by the police, that it does not mention about any source of light (to witness the occurrence during night) and even the evidence of PW 5 is against the version of prosecution that the house where alleged incident took place was electrified on the date of occurrence. In paragraph 41 it is stated that MOs 1 to 3 were not recovered in accordance with law and those material objects were produced before Court long after the (alleged) recovery of the same and hence it is not possible for the Court to arrive at a finding that PWs 1 and 3 sustained injuries with MOs 1 to 3. Learned Judge observed that recovery of MOs 1 to 3 is doubtful. In paragraph 42 it is observed that though it has come out in evidence that there are several houses near the place of incident, no independent witness was cited by the prosecution to prove the incident. PWs 1 and 3 to 7 examined are not definite about the occurrence. Learned Sessions Judge also observed that their evidence will eloquently show that a group clash took place at the relevant day, time and place. In paragraph 43, it is observed that 5 persons were arrayed as accused along with 10 other identifiable persons and there was no proper identification made to identify the identifiable persons (petitioner allegedly comes among them). In paragraph 45 it is stated that in the absence of reliable evidence to prove the factum of possession of property where the occurrence took place, a charge under Section 447 of the IPC cannot stand. In paragraph 46 it is observed that prosecution failed to bring out the source of light to prove the occurrence and there is nothing to show that the accused formed into an unlawful assembly as alleged by the prosecution. Further observation is that fight took place between two political groups in which both sides sustained injuries. Though, before commencement of trial parties filed a compromise petition to compound the offences, witnesses turned round and deposed in favour of prosecution and all these circumstances according to learned Sessions Judge would indicate that prosecution witnesses could not be believed as such. In paragraph 47 it is held that prosecution has not succeeded in proving the offences beyond reasonable doubt and accused are entitled to get the benefit of acquittal.