VIJAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant, who was the first accused at the trial before the Sessions Court of Kottayam, and nineteen others were tried for offences alleged to have been committed by them as members of an unlawful assembly. THE appellant alone was convicted, the convictions being for offence under S. 326 read with S. 149 I. P. C. , and under S. 148 I. P. C. ; he was sentenced to undergo rigorous imprisonment for two years for the former, and for one year for the latter conviction.

(2.) THE charge was laid by the Police after investigation against twenty persons of whom one died before the trial commenced in the sessions Court. It would appear that on the 3rd June, 1958, Pw. 6 had filed a petition, Ext. P. 5, at the Vaikom Police Station, complaining of thefts of agricultural produce in his property by certain tenants. Pw. 2, a Police constable on duty at the Vaikom Police Station, proceeded to the spot on the 4th June, 1958, for investigating into the petition on complaint and was accompanied by Pw. 1, another Police Constable, attached to the same Police station. THEy learnt, that Pw. 6 had gone to Alwaye and therefore they came to thevalakkattu Purayidom, in which Pw. 3, the son of Pw. 6, was attending to the plucking of cocoanuts from the trees. Pws. 1 to 3 had their meal in thevalakkattu Purayidom and when Pw. 1 was about to have a chew, a few men stated to be accused 1 to 7 and deceased Krishnan came there and belaboured Pw. 1. THEy were soon joined by others. Some of them attacked Pw. 2 as well. Pws. 2 and 3 then ran away from the place to the opposite bank of a thodu or canal on the northern side; but Pw. 1 was bound hand and foot, and lay there injured. THE accused soon left the place. Pw. 2 hurried to the Police Station and gave the first information, Ext. P2, upon which Pw. 13, the Sub-Inspector of Police, registered a case and proceeded to the scene of occurrence and investigated the case. This is the substance of the case against the accused.

(3.) IT was first contended on behalf of the first accused, that on the findings, the convictions under S. 148, and by applying under S. 149 i. P. C. , cannot be sustained, in view of the acquittal of the other accused, and reliance was placed on the decision of the Supreme Court in Prabhu Babaji v. State of Bombay, A. I. R. 1956 S. C. 51, where it was held, that a conviction applying S. 34, I. P. C. cannot be sustained in the nature of the charge levelled against the convicted persons and others, that they had acted in pursuance of a common intention, when the others were acquitted; but the law has been laid down differently in the case of an unlawful assembly in Dalip Singh v. State of punjab, A. I. R. 1953 S. C. 364 and in Kapildeo Singh v. The King, A. I. R. 1950 federal Court 80. IT has been ruled in these cases, that notwithstanding the acquittal of some of the accused, if the court is able to find, that the convicted person and some others, though known or unknown, were members of an unlawful assembly, then the conviction of the known or identified person can stand. This was the finding of the learned judge in the present case, and no exception can be taken to the conviction, on the ground of the acquittal of accused 2 to 19.