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IN THE HIGH COURT OF KERALA
Pius C. Kuriakose, N.K. Balakrishnan, JJ.
Dineshan – Appellant
Versus
State of Kerala – Respondent
Crl. A. No.1040 of 2006 and Crl. R.P. No.1437 of 2007
Decided On : 12-04-2011
Criminal Law - Criminal Trial - Criminal Procedure Code, 1973 - Section 107 - Indian Penal Code, 1860 - Section 302 - Offence of Murder - Unlawful assembly - Appeal against conviction and Acquittal - Accused/appellants contend that the evidence adduced by the prosecution is not credible and that the complicity of the accused was not proved by the prosecution beyond reasonable doubt - Defence put up by accused was not properly considered by the learned Sessions Judge in its correct perspective - Whether the accused other than A1 to A3, A11 and A12 were also actually present at the scene of occurrence - Held, While appreciating that part of evidence the fact that incident took place at night may have be borne in mind. Though there was bright moonlight, the possibility of those accused being identified from a distance may not be that much easy - As regards A1 to A3, A11 and A12, they were actually seen at the place of incident itself doing the acts as mentioned earlier - Witnesses Pws.1, 2 and 4 were not asked as to what were the other named accused doing at the relevant time - It does not mean that only if some overt acts are attributed against those accused they can be fastened with the liability invoking Section 149 IPC - But that may be necessary to ensure and satisfy the judicial conscience that those accused were actually present there - But prosecution could prove that A1 to A3, A11 and A12 were members of that unlawful assembly - Prosecution could even prove beyond reasonable doubt that they actively participated in commission of crime - Since common object of that unlawful assembly was to cause the murder of BJP men or some of them who were on that bund at the relevant time and since murder of Sujeesh and Sunil was caused in prosecution of common object of that unlawful assembly, A1 to A3, A11 and A12 are found guilty of offences punishable under Section 302 r/w 149 IPC - It was vehemently contended by the defence that there was no specific case for PW1 and others that accused caused criminal intimidation putting PW1 or any other person in fear of death - Act of one or some of the accused done in furtherance of the common object of that unlawful assembly would be sufficient to attract offence punishable under Section 506(2) r/w 149 IPC - Conviction on that ground also has to be upheld as against those persons whose complicity could be proved by the prosecution - Conviction and sentence passed against A4 to A10, A13 and A14 are set aside and they are acquitted of all offences charged against them - Confirming the verdict of acquittal of A15 - Crl.R.P.No.1437 of 2007 is dismissed and Appeal partly allowed.
Out of the 15 accused who faced trial, accused Nos.1 to 14 were found guilty and convicted by the learned Sessions Judge, Thalassery for offences punishable under Sections 143, 147, 506(II) and 302 IPC r/w 149 IPC. Accused Nos.2, 3, 11 and 12 were convicted under Section 148 IPC also. Besides accused No.3 was convicted for the offence under Section 5 of the Explosive Substance Act. They were sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC r/w 149 IPC. Besides, they were sentenced to undergo imprisonment for various terms for other offences mentioned above. They were also directed to pay Rs.2,00,000/- each as compensation to the legal heirs of the deceased victims. Accused No.15 was acquitted by the learned Sessions Judge.
2. The gist of the prosecution case can be stated thus :- On 1.3.2002 there was a harthal called by VHP/RSS. At about noon, there was an altercation between members of CPI(M) and RSS people at a place near Kalamandhir in Dharmadom Amsom. In connection with that harthal there were clashes during the daytime between those two factions at Dharmadom and other places. Being afraid of CPI(M) people, 11 persons including the two victims - Sujeesh and Sunil decided to stay during night near a shed situated on the bund/'chira' situated by the side of Meloor river. After midnight, at about 1 AM, while those 11 persons were on the bund, they saw about 15 persons coming from the eastern side and also about another 15 persons coming from the northern side towards the place where the aforesaid 11 persons including PW1 were lying or sitting. In the moonlight PW1 and others saw those assailants approaching towards them carrying deadly weapons. All of them were alerted, but Sujeesh and Sunil were asleep. Others rushed towards the river while the assembly consisting of the assailants inflicted fatal injuries on Sujeesh and Sunil. After a short while, the assailants left the place. PW1 and others went near the shed where they found Sujeesh writhing having been inflicted with fatal injuries. Sunil was not seen there. The body of Sujeesh was taken by PW1 and others to the road near Kalamandhir where there was a police picket. From there, the body of Sujeesh was removed to the Co-operative Hospital, Thalassery in the police jeep. The doctor (PW3) examined and pronounced Sujeesh dead. The dead body of Sujeesh was thereafter removed to the Govt. Hospital, Thalassery. PW1 - Jithesh who had accompanied the dead body to the Co-operative Hospital and thereafter to Govt. Hospital, Thalassery went to the police station and gave the First Information Statement (Ext.P1), based on which Ext.P1(a), the First Information Report was registered by PW15, the A.S.I. of Police, Dharmadom Police Station. The investigation was conducted by PW19, the C.I. of Police. After completing the investigation the charge sheet was laid against 15 accused persons.
3. The learned Sessions Judge framed charges against the accused alleging commission of offences under Sections 143, 147, 148, 341, 506(II) and 302 IPC r/w 149 IPC and also under Section 5 of the Explosive Substance Act. The accused pleaded not guilty.
4. PW1 to PW20 were examined and Exts.P1 to P22(e) were marked. Besides, MO1 to MO8(a) were also identified and marked on behalf of the prosecution.
5. When examined under Section 313 Cr.P.C., the accused contended that the prosecution case is a fabricated one and that they were falsely implicated in this case. Two witnesses were examined on their side. Including the portions of the statements of prosecution witnesses marked as contradictions, Exts.D1 to D13(c) were marked. Exts.X1 and X2, the case diaries in two crimes of Dharmadom Police Station were also got marked on behalf of the defence.
6. Learned Sessions Judge found accused Nos.1 to 14 guilty of the offences and convicted and sentenced them fo
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