Allowed

C.K.Gopalan v. State of Kerala

Kerala HC15 Nov 2013CRL.A/1124/2008

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal filed by ten accused convicted for offences under IPC sections 143, 147, 323, 342, 355, and 435. The judgment held that the prosecution miserably failed to establish the identity of the appellants amidst a large mob and acquitted them due to investigative defects.

What did the court decide?

Appellants acquitted of all charges; conviction set aside; bail bonds cancelled; appellants set at liberty; depósito released.

C.K.Gopalan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935

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CRL.A.No. 1124 of 2008 ( )

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AGAINST THE JUDGMENT IN SC 39/2005 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA, DATED 04-06-2008

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APPELLANT(S)/ACCUSED 1 TO 10 (UNDER JUDL.CUSTODY EXCEPT A2 AND A6):

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1. C.K.GOPALAN, S/O.KUNHAPPAN, POOTHADI, WAYANAD.

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2. M.KABEERDAS, S/O.BALAN, PARAPPANGADI, MALAPPURAM.

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3. M.MADHAVASN, S/O.SOMAN, NADAVAYAL, WAYANAD.

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4. E.M.SHANAVAS, S/O.MUHAMMED KALIKAVU, MALAPPURAM.

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5. M.K.VIJAYAN, S/O.KULLAN, KENICHIRA, WAYANAD.

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6. P.J.VARGHESE, S/O/JOSEPH, MANANTHAVADI.

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7. THANKAMMA, D/O.VELUKKAN, NOOLPUZHA.

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8. BINDU, D/O.MUKUNDAN, NADAVAYAL,

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WAYANAD.

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9. SARADA, D/O.NARAYANAN, KALPETTA.

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10. BINDU, D/O.THOLAN, NADAVAYAL,

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WAYANAD.

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BY ADVS.SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA

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RESPONDENT(S)/COMPLAINANT:

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1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. S.I. OF POLICE, MANANTHAVADI POLICE STATION.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/

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V.K.MOHANAN, J.

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Crl.A.No.1124 of 2008

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Dated this the 15^th day of November, 2013.

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J U D G M E N T

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The appellants, who are accused nos.1 to 10 in S.C.No.39/05 of the court of Additional Sessions Judge (Ad hoc)-II, Kalpetta, preferred this appeal, as they are aggrieved by their conviction and sentence imposed on them for the offence under sections 143, 147, 323, 342, 355 and 435 r/w 149 of IPC, by judgment dated 4.6.2008 in the above sessions case.

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The prosecution case is that at about 1.45 p.m. on 5.8.2004, the accused themselves formed into an unlawful assembly in front of the Village Office, Mananthavady, with the common object of causing the death of CW1, and committed rioting with dangerous weapons and dragged PW1 out of his jeep and beat him with stick and caused simple hurt to PW1 and garlanded him with chappals and

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took him through Mananthavady town and also set fire to his jeep and thus caused a loss of `5,000/- and thus according to the police, the accused 10 in numbers have committed the offences punishable under sections 143, 147, 148, 308, 324, 342, 355, and 435 r/w 149 of IPC. On the above allegation, Crime No.231/04 was registered in the Mananthavady Police station.

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On completing the investigation in the above crime, a formal report was laid in the court of Judicial First Class Magistrate-II, Mananthavady, wherein C.P.No.43/04 was instituted and the learned Magistrate subsequently by his order dated 4.12.2004 in the above proceedings, committed the case to the Sessions court and thus instituted S.C.No.39/05 and thereafter the case was made over to the present trial court for disposal. Thus when the accused appeared, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offences punishable under sections 143, 147, 148, 342, 324,

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355, 308, 435 r/w 149 of IPC and when the said charge was read over and explained to the accused, they denied the same and pleaded not guilty which resulted in further trial, during which Pws.1 to 5 were examined and Exts.P1 to P6 documents were produced from the side of the prosecution. M.Os.1 to 5 were also identified and marked as material objects. No evidence whatsoever is adduced from the side of the defence.

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Finally, the learned Judge of the trial court found that the charge under section 308 r/w 149 of IPC is not proved as there was no sufficient evidence to establish the same, particularly from the acts of the accused, according to the learned Judge, they had no intention to cause death of PW1. Consequently, the trial court found that the accused are not liable to be convicted for the offence under section 308 of IPC. However, the learned Judge has found that the accused themselves formed into an unlawful assembly with an intention to cause hurt to PW1 and had

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used force against him. As the weapon used is not a deadly one, according to the learned Judge, the offence attracted is only under section 143 r/w 149 of IPC. It is also found that the accused have physically restrained PW1 and therefore committed the offence under section 342 r/w 149 of IPC. As the accused has volunteered to cause hurt to PW1, they have also committed the offence under section 323 r/w 149 of IPC. As there is no evidence to show the use of the weapon which could have caused death, no offence under section 324 is attracted. Considering the allegation that the accused had garlanded PW1 with chappals, the intention was to dishonour him and so they committed offence under section 355 of IPC. Considering the damage to the jeep, it is held that the accused has committed the offence under section 435 of IPC. Thus, all the accused are found guilty for the offence under sections 143, 147, 323, 342, 355 and 435 r/w 149 of IPC and accordingly they are convicted. On the basis of the finding, which I mentioned

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earlier, all the accused are acquitted of the offences alleged under section 308 r/w 149 of IPC. On conviction of the accused for the above mentioned offences, the learned Judge sentenced them to undergo simple imprisonment for 3 months u/s.143 of IPC, simple imprisonment for 6 months u/s.147 of IPC, 6 months u/s.342 of IPC, 6 months u/s.323 of IPC, 1 year u/s.355 of IPC and for 1 year and fine of 500/- u/s.435 of IPC r/w. S.149 of IPC. If fine is not paid, they shall undergo simple imprisonment for 1 month. It is also ordered that if fine is realised, 2,000/- shall be paid to the de facto complainant. It is also ordered to run the sentences concurrently and set off is allowed. It is the above finding and conviction and sentence that are challenged in this appeal.

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I have heard Adv.Sri.K.S.Madhusoodanan, the learned counsel for the appellants and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.

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The prosecution case is that on getting information

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that PW1 was surrounded by a mob, PW5-the then sub Inspector of Police attached to Mananthavady Police station reached at Gandhi Park in Mananthavady at about 2 p.m. on 5.8.2004 and on seeing the incident, he took PW1 as well as the 10 persons out of the mob that was seen surrounded PW1 and thus he obtained Ext.P1 FI statement from PW1 and registered Ext.P1(a) FIR in the above police station on 5.8.2004. According to the prosecution, the accused belonged to an organisation namely, “പ��ര�ട�” and PW1 was prevented from moving according to his whims and he was compelled to go along with the accused from the Mananthavady panchayat office premises to the Gandhi park, in their protest against PW1 as he was realising exorbitant interest from common people. The entire steps, beginning from registering the FIR till the filing of the final report are done by PW5-the then Sub Inspector of Police.

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PW1 is the de facto complainant and when he was examined, he had deposed before the court about the

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incident in terms of the prosecution allegation and thus when PW1 was examined, Ext.P1 FI statement was identified by him and he had also identified M.O.1 stick which is allegedly used by the accused to beat PW1. Pws.2 and 3 are two independent witnesses cited and examined by the prosecution to prove the occurrence. Suffice to say, though they have deposed before the court about the incident, both the witnesses did not depose before the court that the persons, who were on the box, were the persons involved in the commission of the offences and thus they had miserably failed to identify the accused. PW4 is an attestor to Ext.P2 mahazar prepared by PW5. But, PW4 deposed before the court that he had affixed his signature in Ext.P2 scene mahazar from the Police station. He identified M.O.2 flag, M.O.3 series of placards, M.O.4 series of glass pieces and M.O.5 partially burned seat cover.

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As I indicated earlier, PW5 is the then Sub

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Inspector of Police who recorded Ext.P1 statement from PW1, on the basis of which, he registered Ext.P1(a) FIR. According to him, he had also filed Ext.P3 report dated 6.8.2004 furnishing the correct address of the accused. He had deposed before the court that he had arrested the accused as identified by PW1 and the arrest was effected by preparing arrest memo and thus Ext.P4 series of arrest memos were marked through PW5. Though the Doctor who is said to have examined PW1 was not examined, the wound certificate issued by the said doctor, who was cited as CW7, is marked through PW5 as Ext.P5. According to PW5, the entire material objects were produced before the court through a property list, which is identified by him as Ext.P6. It is on the basis of the above referred materials and evidence, the trial court found that the prosecution has succeeded in proving all the allegation against the accused, except the offence under sections 324 and 308 and 149 of IPC and consequently imposed sentence, which I

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mentioned above.

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Learned counsel for the appellants, after taking me through the evidence of prosecution witnesses, has strenuously submitted that in the present case, the prosecution has miserably failed to establish the identity of the appellants/accused and in support of his contention, the learned counsel placed reliance upon the decision of the Honourable Apex court in Mohanlal Gangaram Gehani Vs. State of Maharashtra (AIR 1982 SUPREME COURT 839) . It is also the submission of the learned counsel that the wound certificate allegedly issued by CW7 is not properly proved and as such, there is no evidence to hold that PW1 sustained injuries. It is also contended that absolutely there is no evidence to attract the offence under section 438 of IPC, as the prosecution has not produced any reliable evidence to prove mischief of fire and not even a mahazar was prepared by the prosecution with respect to the jeep that is said to have set fire by the appellants/

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accused. It is pointed out that, the prosecution has miserably failed to examine the material witness-CW2, who was the driver of PW1 at the relevant point of time and who was present in the jeep at the alleged time. It is also contended that the evidence of Pws.2 and 3 cannot be believed to prove the occurrence, since they are highly interested and they are planted witnesses, who belonged to very distant place. Another contention advanced is that the alleged occurrence had taken place at a very busy place, but the police did not question any witness from the locality and none of them are cited and examined. In support of the first point urged, it is contended that the prosecution has miserably failed to conduct any test identification parade and according to the learned counsel, the same is absolutely necessary in the light of the prosecution allegation, particularly when the appellants/ accused were arrested among the people who gathered at the alleged place of occurrence. So according to the

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learned counsel, the findings of the court below are factually and legally incorrect and are liable to be interfered with and the appellants are entitled to get an acquittal. Per contra, the learned Public Prosecutor submitted that the evidence of the prosecution are supported by contemporary documents, which establish the case alleged against the appellants and the court below has rightly accepted the evidence which form the basis for the conviction recorded by it against the appellants and therefore no interference is warranted.

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I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor and I have perused the evidence and materials on record.

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In the light of the rival contentions and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellants for the offence

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alleged by the prosecution. The case of the prosecution is that the accused at about 1.45 p.m. on 5.8.2004, themselves formed into an unlawful assembly in front of the Village Office, Mananthavady, and restrained PW1 and forcibly garlanded him with chappals and took him along the public road right from Mananthavady Panchayat office premises to the Gandhi Park. Suffice to say, though none of the independent witnesses had stated that the appellants/accused belonged to the organisation, namely “പ��ര�ട�”, PW5 deposed during his chief examination that,

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“PW1-ന� പ��ര�ട� പ�വര�കര�യ പ�ത�കള അട�ച� �ര�ക� ഏല��ച� കകനകട� ന�ര��മ�ല അണ�യ�ച� ട"ണ�ല#നട �ട��നക�ണ% പ��വ%നത�യ� വ�വര� ക�ട�.” The de facto complainant has no such case, either in his Ext.P1 FI statement or during his evidence before the court. The only case put forwarded by PW1 in Ext.P1 statement as well as during the deposition before the court, is to the effect that at the relevant point of time, about 6 male persons and 4 female persons shouted

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slogans as, �ക)ല*�ര� )�ന�*�ദ. So, the above version of PW5 is not supported by any of the independent witnesses and thus the very basis of the prosecution case itself has been shaken.

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The first point raised by the learned counsel for the appellants is about the failure of the prosecution to establish the identity of the accused. According to me, having regard to the facts and circumstances involved in the case, the identity of the accused is a very relevant and pertinent fact to be established by the prosecution with clear and clinching evidence. The allegation of the prosecution is that PW1 was surrounded by about 50 persons when PW5 reached at the spot on the basis of the information received by him. Suffice to say, no details are forthcoming from PW5 as to how he received the information and whether such an information is recorded in any of the documents maintained by him or in the Police Station. According to PW1 and PW5 and other witnesses,

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on the arrival of PW5, he had seen PW1 surrounded by a mob consisting of 50 persons and accordingly PW1 as well as the 10 persons among the mob were removed to the Police Station. Under the above factual input, according to me, it is an unshifted burden of the prosecution to positively establish that, the persons who were removed from the place of occurrence to the Station, are the persons exclusively involved in the overtact alleged against PW1, by ruling out the involvement of any other person. In this juncture it is also relevant to note that PW5 made an unsuccessful attempt to show that the accused was arrested as identified by PW1. Now let us examine the prosecution evidence in this regard. In the cross examination, it is stated by PW1 that, “പ�ത�കന- എ��ക� മ%ന�ര��യ� ഇല1 . പ��ല2സ അവനര ക�ണ�ച� എനന പ��ദ5� ന�യത�ട�ല1.” In Ext.P1 FI statement itself, PW1 has also stated that, “.......എന7 ജ2��ല കയറ�യ )മയ� ഉപ;ശ� 2 മണ�പയ�നട 6 �%ര%ഷനമ�ര%� 4 സപത2ക-�� ക#ട� '�ക)ല*�ദ� )�ന�*�ദ' എന%�

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മറ�� മ%പദ�വ�ക5� വ�-�ച�നക�ണ� എന7 ജ2�� വ-ഞ� ....” It is also

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recorded that, “ഗ�ന��രക�നല��യപ��പ-ക%� പ��ല2സ സല�� വന� എനന രക�ക%കയ�ണ%ണ�യത .” It is also seen recorded

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that, “)�ഭവ� �ടക%പG�ള എന7 ജ2��കപHവര മണ� ജ2��ക�� ഉണ�യ�ര%ന%. എനന ആപകമ�ചവനര ആനരയ%� എ��ക� മ%ന�ര��യമ�ല1 . എനന ആപകമ�ചവനര എ��ക� കണ�ല അറ�യ��.” When PW1 was examined towards the identity of the accused, he has not stated anything more than what stated in Ext.P1 FI statement. Even in the chief examination, he has not stated that he can identify the accused and no evidence is given for identifying the accused who were in the docket. Rendering the claim of PW5, the sole Police Official, who took the steps, as false and incorrect, PW1 has in an unequivocal terms deposed before the court that the accused were not shown to him or he identified and pointed them to PW5. So, the evidence of PW1, who is the alleged victim is not helpful for the prosecution to establish the identity of the accused. To prove the occurrence, besides

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PW1, the alleged victim, the prosecution has also examined Pws.2 and 3, though there is contradiction between the evidence of Pws.1 and 2 that, they never deposed before the court that the persons on the docket are the persons involved in the alleged occurrence. In short, the prosecution has failed to prove the identity of the appellants/accused even through the evidence of PW1-the victim and other independent witnesses namely Pws.2 and 3.

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Thus the above discussion, particularly in view of the available evidence, shows that the prosecution has miserably failed to positively establish by adducing substantial evidence that it was the accused, who were among the mob had committed the overtact as alleged against PW1 in which PW1 sustained injury etc. So, the finding of the court below that the appellants/accused committed the offence as alleged by the prosecution cannot be approved.

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Besides the above, there are some other fundamental defects in the investigation of the case alleged against the accused. As pointed out by the learned counsel for the appellants, the wound certificate, namely Ext.P5, is marked through PW5, which was subjected to further proof. But the Doctor, who is cited as CW7 and who allegedly issued Ext.P5certificate, is not examined and therefore the content of Ext.P5 cannot be treated as proved. The above deficiency in the prosecution case has got a relevance under another circumstances. In Ext.P1 FI statement, no body mahazar of PW1 is mentioned and the alleged wounds are not noted. Suffice to say, the endorsement contained in Ext.P1 FI statement or Ext.P1(a) FIR does not show that the injured was sent to the hospital accompanied by any police official. Under the above circumstances, according to me, the non examination of CW7, who allegedly issued Ext.P5 certificate goes against the prosecution and as such, the prosecution has miserably

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failed to prove the injuries of PW1.

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As rightly pointed out by the learned counsel for the appellants, no mahazar with respect to the seizure of the jeep, which is said to have destroyed by the accused, was either prepared or produced before the court. It is true, M.O.5 burned seat cover of the jeep was produced before the court. But there is no whisper in the evidence of PW1 or Pws.2 and 3 that any of the accused had removed the seat cover or detached the same from the seat either by cutting or by burning it. If M.O.5 is happened to be in the scene of occurrence, either of the way indicated above, supporting the same there should have been a mahazar, but there is no such mahazar. So, it cannot be said that M.O.5 is an essential part of the seat cover of the jeep belonging to PW1. It is also relevant to note that no witnesses from the locality is cited and examined by the prosecution though the alleged place of occurrence is a busy area where there are lot of shops, office buildings and

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presence of general public etc. But in the present case, Pws.2 and 3, who styled as independent witnesses, are belonging to far away from the place and they are having close acquaintance with PW1 for more than 7 years. So, there was a tendency on the side of prosecution to introduce interested witnesses, instead of getting witnesses from the locality. Suffice to say, as pointed out by the learned counsel for the appellants, though the prosecution case is that 10 accused persons were removed from the place of occurrence who were part of the mob, no test identification parade is conducted to establish the identity of the persons who involved in the commission of the crime. In the above circumstances, according to me, the failure on the part of the prosecution to conduct the test identification parade is fatal to the prosecution. So, in the light of the above defect in the investigation as well as due to the paucity of evidence to implicate the accused with the alleged offence, particularly when the prosecution has

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miserably failed to establish the identity of the accused, certainly the benefit of doubt will go in favour of the appellants/accused.

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In the light of the above discussions and in view of the defects pointed out earlier, particularly the thorough failure of prosecution to establish the identity of the accused, when the accused were taken from a crowd consists of about 50 persons, they have miserably failed in discharging the duty of strictly establishing the identity of the accused who involved in the commission of the offence and coupled with other defects in the investigation, according to me, the learned Sessions Judge ought to have acquitted the appellants extending the benefit of doubt. But the learned Judge has miserably failed in considering the above vital defect in the prosecution case and in extending the benefit of doubt. Therefore, in this appeal, by extending the benefit of doubt in favour of the appellants, I am inclined to acquit the appellants by setting

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aside the order of conviction recorded by the trial court. Accordingly, the conviction recorded by the trial court is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 4.6.2008 in S.C.No.39/05 of the court of Additional Sessions Judge (Ad hoc)-II, Kalpetta, and the appellants are acquitted of all the charges levelled against them and the bail bond if any executed by them shall stand cancelled and they are set at liberty. The amount if any deposited by the appellants on the basis of the order dated 9.6.2008 in Crl.M.A.No.5543/08 of this Court, shall be released to them forthwith on moving an application in this regard.

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Appeal is allowed accordingly.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

C.K.Gopalan v. State of Kerala

Case brief

What is this about?

What did the court decide?

C.K.Gopalan v. State of Kerala

Case brief

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What did the court decide?

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