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2005 Supreme(Ker) 804
IN THE HIGH COURT OF KERALA
K. PADMANABHAN NAIR, V. RAMKUMAR, JJ.
Suresh - Appellant
Vs.
State of Kerala - Respondent
Crl. A. No.182 of 2003
Decided On : 06-09-2005
For the Appellants : P. Vijaya Bhanu & Tony Mathew.
For the Respondent: Sujith Mathew Jose (Public Prosecutor).
Headnote:
Criminal Procedure Code, 1973 - Sections.232, 239 & 240 - Penal Code 1860 - Section. 66 - Description of imprisonment for non-payment of fine - When accused shall be discharged - Framing of charge - Sessions Case No. 143/98 on the file of the Addl. Sessions Judge (Adhoc I), Thalassery are the appellants in this appeal. They challenge the conviction entered and sentence passed against them by the aforesaid Court for offences punishable under Ss.143, 147, 148 and 302 I.P.C. read with Ss.3 and 5 of the Explosive Substances Act.- Held, The act of framing charge is not an empty formality. It is the basic record which gives notice to the accused on what accusation he is going to be tried by the court so that he could shape his defence accordingly. When there is no charge and no charge has been read over and explained to the accused as well, legally the accused has no notice on what accusation he is being tried. In such cases, there is no trial at all in the eye of law and the so-called trial, if any, is vitiated. No prejudice need be proved in such cases nor is it a case of irregularity which could be cured either under S.464 or under S.465 Cr.P.C. - The Trial judge did not post the case for hearing under S.232 Cr.P.C. which is also not an empty formality. After examining the accused under S.313 Cr.P.C., the trial Judge straightaway called upon the accused to enter on their defence. That was certainly not the stage at which the accused were to be asked whether they had any defence evidence to be adduced. Non-compliance of S.232 Cr.P.C. is also an infirmity that goes to the root of the matter with regard to the procedure followed by the trial judge - Failure to award any punishment for the conviction under Sections 143 and 147 is another illegality committed by the learned Sessions Judge. Law does not envisage a person being convicted for an offence without any sentence being imposed on him. The rule is that a sentence should follow a conviction - In a case where substantive sentence of imprisonment which the Court can impose for an offence is only rigorous imprisonment, then, the imprisonment for non-payment of fine imposed for the said offence, can only be rigorous imprisonment and not simple imprisonment - Question of setting off the period of detention undergone by an accused as an under trial prisoner against the sentence for life imprisonment, can arise only if an order is passed by appropriate Government either under S.432 or under S.55 IPC read with S.433(b) - Persons not armed with deadly weapons cannot be convicted under S.148 with the aid of S.149 for the mere reason that they were members of an unlawful assembly - Appeal set aside
V. Ramkumar, J.
Accused Nos. 1 to 9 in Sessions Case No. 143/98 on the file of the Addl. Sessions Judge (Adhoc I), Thalassery are the appellants in this appeal. They challenge the conviction entered and sentence passed against them by the aforesaid Court for offences punishable under Ss.143, 147, 148 and 302 I.P.C. read with Ss.3 and 5 of the Explosive Substances Act.
2. The case of the prosecution can be summarised as follows:--
On 10-3-1995 at about 9 p.m. the accused who are C.P.M. loyalists, out of their enmity towards Chembattarathinmel Kelu, P.W.1 (Krishnan), P.W.3 (Raveendran) and C.W.3 (Gopi) who are workers and sympathisers of B.J.P., formed themselves into members of an unlawful assembly, the common object of which was to commit rioting armed with deadly weapons, to cause hurt to the aforesaid persons using country bombs and to commit the murder of the said persons who were sitting on the steps leading to Koovendavalappil house at K.C. Mukku in Puthur amsom, Kootteri desom belonging to P.W.1 and in prosecution of the aforesaid common object of the said assembly, the accused threw bombs at the aforementioned persons. Kelu referred to above sustained fatal injuries on account of the explosion of the bomb and he succumbed to the same in the same night and P.W.3 sustained injuries. The accused have thereby committed offences punishable under Ss. 143, 147, 148, 324, 307 and 302 read with S.149 I.P.C. and Ss. 3 and 5 of the Explosive Substances Act, 1908.
3. On the accused pleading not guilty to the charge framed against them by the Court below for offences punishable under Ss. 143 I.P.C. S. 5 of Explosive Substances Act read with S.149 I.P.C. S.302 read with S.149 I.P.C. and S.3 of the Explosive Substances Act read with S.149 I.P.C., the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 15 witnesses as P.Ws 1 to 15 and got marked 14 documents as Exts.P1 to P14 and 7 material objects as M.Os 1 to 7.
4. After the close of the prosecution evidence, the accused were questioned under S.313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. The first accused stated as follows:--
He is innocent. There is absolutely no connection with the occurrence and himself. On the relevant dates he was an inpatient in the Medical College Hospital, Kozhikode. The case was foisted out of political enmity.
5. The 2nd accused stated that he is a C.P.M. Worker and he was falsely implicated out of political enmity.
6. The 3rd accused stated that they are B.J.P. workers and the opposite party belong to the C.P.M. and the case was taken out of political enmity.
7. The 4th accused stated that he has not committed any offence.
8. The 5th accused stated that during the time of occurrence he was in his own medical store and that he has not committed any offence.
9. The 6th accused stated that he is innocent and he was falsely implicated due to political enmity.
10. The 7th accused also toed the line of the 6th accused.
11. The 8th accused stated that at the time of the alleged occurrence he was at his own residence and the younger brother of deceased Kelu was in his house and he was falsely implicated out of political enmity.
12. The 9th accused stated that he is innocent and he was made an accused out of political enmity.
13. After the examination of the accused under S.313 Cr.P.C., the learned Addl. Sessions Judge without hearing the prosecution and the defence under S.232 Cr.P.C., called upon the accused to enter on their defence. They examined three witnesses as D.Ws 1 to 3 and got marked as Exts.D1 to D3.
14. The Court below, after trial, as per judgment dated 9-1-2003 found all the accused guilty under Ss. 143, 147, 148 and 302 read with S. 149 I.P.C. and Sections 3 and 5 of the Explosive Substances Act. For the conviction under S.302 I.P.C. the first accused was sen
