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2015 Supreme(Ker) 1650
IN THE HIGH COURT OF KERALA
K.T. SANKARAN, RAJA VIJAYARAGHAVAN V., JJ.
Sathyan - Appellant
v.
State of Kerala - Respondent
Crl. A. No.2004 of 2009
Decided On : 30-09-2015
Advocate Appeared:
For the Appellants :M.K. Damodaran (Sr. Advocate), Alan Papali, Sojan Micheal, Gilbert George Correya & Dhanya P. Ashokan
For the Respondent: Bindu Gopinath (Government Pleader)
Headnote:
Indian Penal Code, 1860 - Section 149 - Unlawful assembly - Acquittal of - Co-accused - Minor mistakes in procedure - Prejudice of - Eyewitness - Riot - Deadly weapons involved - Findings of - Held, If prosecution names five or more persons and alleges that they constituted an unlawful assembly and if out of the persons so named two or more are acquitted leaving before Court less than five persons to be tried, S.149 cannot be invoked - Minor mistakes in procedure cannot be projected as major violations to contend that trial is vitiated unless appellant is able to show substantial prejudice - No such prejudice is shown to have been made out in instant case - It should not be taken that Court have encouraged any laxity of procedure in matter of framing of charge - While judging question of prejudice, Court must act with a broad vision and look to the substance and not to technicalities, and its main concern should be to see whether accused had a fair trial, whether he knew what he was being tried for, whether main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself - No interference would be required - Court find that there is a ring of truth in oral testimonies of eye witnesses which cannot be discarded for reason that they owe allegiance to a particular political party - Minor discrepancies in their evidence are all but natural and merely because witnesses failed to specifically speak about overt acts of accused No.5 to 8 in Court cannot be regarded as sufficient enough reason to doubt their otherwise convincing testimony
RAJA VIJAYARAGHAVAN V., J.
1. The appellants are accused Nos.1 to 4 in S.C. No.617 of 2004 on the files of the Additional Sessions Judge (Ad hoc)-II, Kasaragode. They along with four others were charged for having committed offence punishable u/S.143, 147, 148, 341 and 302 r/w S.149 of the I.P.C. As per judgment dated 19.8.2009, the learned Additional Sessions Judge found the appellants guilty and they were sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/-each in default of which, rigorous imprisonment for one year each u/S.302 I.P.C. r/w S.149 I.P.C. They were also sentenced to undergo rigorous imprisonment for six months u/S.143 r/w S.149 I.P.C. Accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.5000 each and in default to undergo simple imprisonment for six months each for the offence punishable u/S.147 r/w S.149 I.P.C. Accused Nos.3 and 4 were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.10,000 each in default to undergo simple imprisonment for six months each for the offence punishable u/S.148 r/w S.149 I.P.C. The appellants were also sentenced to undergo imprisonment for one month each for the offence punishable u/S.341 r/w S.149 I.P.C. The accused No 5 to 8 were acquitted of all charges.
2. Crl. R.P.3475 of 2009 has been preferred by the father of deceased Devadasan against the acquittal of accused No 5 to 8 in the above case.
3. The facts giving rise to the instant appeal and also the revision petition are as follows:-
On 27.1.2001, Vinod Kumar, who is the 1st informant along with his friend, deceased Devadasan, were returning back after work in a bus. They alighted at Challingal Panchayat bus stop at 6.45 pm. They saw some persons standing there, huddled together, and on seeing the deceased, they exhorted that he be done away with. The accused Nos.1 and 2 wrongfully restrained Devadasan by holding the collar of his shirt and the 3rd accused inflicted injuries on him with a billhook on his head and various parts of his body. The 4th accused also inflicted injuries with a billhook on various parts of his body. There were about ten persons, including the accused, who participated in the perpetration of this act. On witnessing the incident, Vinod Kumar, who was examined as PW7, raised a hue and cry. Hearing the scream, the locals gathered. The deceased Devadasan, was made to lie on the lap of one Gopalan and he was given a soda. Devadasan was taken in a jeep driven by PW2 to the Kanjangad hospital. From there, he was shifted to the Mangalore Unity hospital where PW17, examined him and pronounced him dead. PW7 returned back and gave Ext.P4, FI statement before PW18, the Additional Sub Inspector of police, Hosdurg. In Ext.P4, the names of eight persons and two others who could be identified by sight were stated. Investigation was taken over by PW14, the Circle Inspector of police, Hosdurg, who arrested all the accused except the 5th accused, on 30.1.2001. The 5th accused was arrested on 1.2.2001. He also visited the place of occurrence and prepared Ext.P1 scene mahazar. Based on the disclosure statement given by accused Nos.3, 4 and 7, weapons allegedly used by the accused were recovered. Thereafter, investigation was taken over by PW15, the Circle Inspector of police, Kanjangad. PW16, the Circle Inspector of police, Hosdurg, verified and laid the charge sheet before the Judicial Magistrate of First Class, Hosdurg.
4. The learned Magistrate initiated the committal proceedings as C.P. No.175 of 2003 and after complying with the prescribed procedure under the Code, committed the case to the Court of Sessions.
5. The accused appeared before the Sessions Court on summons and the learned Sessions Judge after hearing the prosecution and the defence, framed a charge u/S.143, 147, 148, 341 and 302 of the I.P.C. r/w S.149 I.P.C.
6. On the accused pleading not guilty to the charge framed against them by th
