KELU NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused 1, 3, 4 and 6 in C. C. 48/90 on the file of Judicial First Class Magistrate, Kasaragod who were appellants 1, 3, 4 and 6 in Crl. A. 21/94 on the file of Sessions Court, Kasaragod are the revision petitioners. They are challenging the conviction and sentence passed by the learned Magistrate as confirmed by the learned Sessions Judge. Including the revision petitioners 11 accused were charge sheeted by the Sub Inspector of Police, Adhoor for the offences under S.143, 147, 148, 341, 427 and 326 read with S.149 of IPC. The 7th accused absconded and therefore only the remaining 10 accused were tried by the learned Magistrate. The charge against them was that they were all members of an unlawful assembly and the common object of the assembly was to cause grievous hurt with dangerous weapons to PW 5. He was the accused in the murder of Krishnan Nair, the brother of the revision petitioners 1 to 3. The prosecution case was that in compliance with the conditions of bail granted to PW 5, he had to appear before the Circle Inspector of Police, Kasargod on every Sunday and PW 5 was returning back from the Circle Inspector's Office on 23-7-99. When he got down from the bus at Vannachadavu, all the accused were waiting for him in furtherance of the common object of the unlawful assembly and finding them PW 5 ran towards his house followed by the accused who were armed with dangerous weapons like knives and the sticks. PW 5 ran towards the house of PW 3 and though he got into the house by the accused and they brought him to the road and some of the accused caught hold of his neck and others the legs and made him lie on the road and thereafter inflicted grievous injuries with the knife and sticks and thereby committed the offences. It was further alleged that when PW 5 cried, hearing the cry his mother PW 1 Narayani rushed to the spot from her house and she was also attacked by the accused and they inflicted injuries on her with knife and thereafter the accused threw stones at the house of PW 1 and 5 and destroyed several tiles and then disbursed from the spot. PW 6 Kunhiraman Nair, the father of PW 5, reached the spot and he took them first to the Government Hospital, Kasaragod from where PW 9 the doctor examined PW 5 and PW 1 and prepared Exts. P6 and P7 wound certificates and thereafter referred them to Wenlock Hospital, Mangalore from where PW 7, the doctor examined them at 7 p.m. and prepared Exts. P2 and P3 wound certificates and treated them as inpatients. Intimation was sent from the Wenlock Hospital, Mangalore to Pandeshwar Police Station, Mangalore from where it was informed over phone to Adhoor Police Station and the original intimation was sent by post separately. PW 10, the Head Constable went to Wenlock Hospital, Mangalore and recorded Ext. P1 First Information Statement of PW 5 and on returning back to the Police Station prepared Ext. P8 First Information Report and registered Crime 98/89 of that Police Station, PW 11, the Sub Inspector conducted the investigation including preparation of Ext. P4 scene mahazar and seizure of MO 1 and 2 dresses worn by PW 5 at the time of the incident and seizure of MO 3, series of stones and pieces of tiles at the time of preparing Ext. P4 scene mahazar and laid the charge. All the accused pleaded not guilty before the learned Magistrate. Prosecution examined 11 witnesses and got marked Exts. P1 to P10 and got identified MOs. 1 to 3. On the side of the defence, DWs 1 and 2 were examined. On this evidence, the learned Magistrate found accused 1 to 6 and 8 to 11 guilty of the offences and convicted and sentenced them which was challenged before the Sessions Court, Trivandrum. The learned Sessions Judge reappreciated and reevaluated the entire evidence and found that though PW 1 was relied upon by the learned Magistrate, it is not sage to rely on her evidence. But the evidence of PW 5 could be relied on though not fully but partly. The learned Sessions Judge finding that PW 5 had named the revision petitioners as the assailants to PW 7, the doctor who recorded it in Ext. P2, held that the evidence of PW 5 as against the revision petitioners could be relied on and the prosecution case as against the other accused was not proved. Therefore the conviction of accused 2, 5 and 8 to 11 were set aside and they were acquitted. The learned Sessions Judge found that though revision petitioners were numbers of the unlawful assembly only the first petitioners was armed with dangerous weapon and therefore he alone could be convicted for the offence under S.148 of IPC. The learned Sessions Judge also found that all the revision petitioners were guilty of the offences under S.143, 147, 341 and 427 read with S.149 and S.326 read with S.149 of IPC. The learned Sessions Judge therefore partly allowed the appeal and while acquitting accused 2, 5 and 8 to 11 convicted the revision petitioners confirming the sentence passed by the learned Magistrate for the offence under S.143, 147, 341, 427 and 326 read with S.149 of IPC. The conviction of petitioners 2 to 4 for the offence under S.148 IPC was set aside and the conviction and sentence passed by the learned Magistrate as against the first petitioner was confirmed. This judgment is being challenged by accused 1, 3, 4 and 6 in this revision.

(2.) Revision petitioners would contend that though there were 11 accused, 6 accused were already acquitted by the learned Sessions Judge and the absconding 7th accused was subsequently apprehended and tried by the learned Magistrate and was also acquitted and therefore the conviction of the revision petitioners with the aid of S.149 of IPC is unsustainable as the four revision petitioners themselves constitute an unlawful assembly. It is therefore contended that the very conviction is unsustainable. They also contended that the learned Sessions Judge should not have convicted the revision petitioners when the subtraction of the prosecution case was disbelieved and the Sessions Court is not entitled to reconstruct a new case when the prosecution case is found to be unbelievable and therefore the conviction is bad in law. It was also contended that the learned Sessions Judge should have noted that the witnesses and the petitioners are on bitter enmity for the last several years and therefore the petitioners are falsely implicated and the First Information is a belated and fabricated document and though the incident took place on 23-7-89 at 2 p.m. it was recorded only on 9 p.m. on the next day and the delay was not explained and it reached the court only after four days and therefore the court should not have relied on the first information to corroborate the evidence of PW 5 and on the evidence the court below should have acquitted all the petitioners.

(3.) Heard Advocate Sri. M. K. Damodaran, learned counsel appearing for the revision petitioners and the Public Prosecutor.