KOCHAYYAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision petition is by accused 5 and 6 in C. C. 322 of 1963 on the file of the Additional First Class Magistrate, Sherthallai. They along with four others were convicted under S.143, 147, 426 and 323 read with S.149 IPC. and sentenced to pay a fine of Rs. 40 each. Accused 1 to 4 have not come up in revision. The charge against the accused was that they formed themselves into an unlawful assembly with the common object of dismantling a part of the eastern fence and another part of the western fence of Kollan Parappu Thekkepuraidom in the supervision of Pw. 1, to gain easy access to the Bajana Madam in the property to the west. According to the prosecution all the six accused took part in dismantling the fence whereas accused 1 to 3 alone caused hurt to Pw. 1 by pushing him on the ground. All the accused pleaded not guilty. Accused 5 and 6 as also some of the others denied having been present at the spot. Accused 5 who is a man of 70 pleaded that he was bed ridden and under treatment and accused 6 who was employed as a supervisor in the Electrical Department, Ernakulam contended that he was at Ernakulam at the relevant time. The first accuseds case was that there was a path way leading from the road to the Bhajana Madam with gates on the eastern and western sides which were kept open and through which the public used to go to the Bhajana Madom. When Pw. 1 came to close the gate in the eastern fence accused 1 obstructed when Pw. 1 cut him with a chopper and a tussle ensued between him and accused 4 on the one side and Pw. 1 on the other in the course of which Pw. 1 fell down and sustained the injuries. Dws. 1 to 12 were examined in support of that version. On a consideration of the evidence the Magistrate has accepted the prosecution case and convicted the accused.

(2.) The points urged before me in revision on behalf of the revision petitioners are (1) that the conviction is unsustainable since the accused were only acting in the bona fide exercise of their right to use the pathway which was being used by them for a longtime past, (ii) that in any view the conviction of accused 5 and 6 under S.323 by calling in aid S.149 is not proper since the common object of the assembly was only to demolish the fence and not to cause hurt to Pw. 1 and in the circumstances of the case it cannot be held that the members of the assembly knew that hurt was likely to be committed in carrying out that object; and (iii) that the conviction of accused 5 is unsustainable as it is not likely that he, a sickly and aged man of 70, could have taken an active part in the incident, and at the worst he could have only been an innocent by stander.

(3.) The first objection is devoid of merits as it is proved by the evidence of Pws. 1 to 5 that access to the Bhajana Madom was through a gate on the western fence of Pw. 3s puraidom in which the Madom is situated and this was an attempt: on the part of the accused to get a more convenient passage. However there is some force in the other two objections.