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2020 Supreme(Ker) 936
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. ANIL KUMAR, J.
Shijil S/o Subramanian – Petitioner
Versus
State of Kerala Rep. by Public Prosecutor, High Court of Kerala – Respondent
Crl. Rev. Pet. No. 3160 of 2007
Decided On : 20-03-2020
Advocate Appeared:
For the Petitioner: Sri. S. Rajeev.
For the Respondent: Sri. M.S. Breeze.
Important points:
The court is competent to convict the accused with the aid of Section 149 of the IPC provided the prosecution is able to prove that one of the accused along with the other unidentified accused (5 or more persons) formed into an unlawful assembly, armed with deadly weapons for the purpose of rioting and in prosecution of their common object, committed the offence
Headnote:
Indian Penal Code-Section 148, Section 149, Section 300, Section 307-Whether the offence committed by the accused would fall within the parameter of Section 307 of IPC-Ingredients-Intention and knowledge-Intention of the accused was one of the three crimes mentioned in Section 300 of IPC- Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for the mere reason that they were members of an unlawful assembly.
Statement of facts:
Revision petitioners are the accused Nos. 2, 3 and 4 respectively -The offences punishable under Sections 143, 147, 148, 341, 324, 326, 307 read with 149 of the Indian Penal Code, 1860 and Section 27(2) of the Arms Act, 1959- By judgment dated 10.3.2005, the learned Additional Assistant Sessions Judge convicted and sentenced the revision petitioners - Crl. Appeal No. 194/2005 before the Sessions Court, Thrissur. By judgment dated 25.7.2007, the learned Additional Sessions Judge, Fast Track Court-II (ADHOC), Thrissur dismissed the appeal confirming the conviction and sentence imposed by the trial court. Thus, the accused 2 to 4 are before this Court in revision.
Finding of the court:
Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for the mere reason that they were members of an unlawful assembly. The prosecution could not collect probable evidence to substantiate the prosecution case. There is no independent evidence to prove the unlawful assembly and the alleged recovery effected- The bail bonds of the revision petitioners/accused 2 to 4, who were on bail, stand discharged
Result: Criminal Revision Petition allowed.
ORDER :
1. Revision petitioners are the accused Nos. 2, 3 and 4 respectively in S.C. No. 301/2003 on the file of the court of Additional Assistant Sessions Judge, Irinjalakuda. The case was initially registered against the revision petitioners and two others as Crime No. 672/2001 of the Mathilakam Police Station for the offences punishable under Sections 143, 147, 148, 341, 324, 326, 307 read with 149 of the Indian Penal Code, 1860 (for short ‘the IPC’) and Section 27(2) of the Arms Act, 1959 (for short ‘the Act’). By judgment dated 10.3.2005, the learned Additional Assistant Sessions Judge convicted and sentenced the revision petitioners under various spells including Rigorous Imprisonment for 5 years each and a fine of Rs. 5000/- each, in default to undergo Rigorous Imprisonment for one year more for the offence punishable under Section 326 read with Section 149 of the IPC. The above sentences were ordered to run concurrently.
2. Feeling aggrieved, the revision petitioners preferred Crl. Appeal No. 194/2005 before the Sessions Court, Thrissur. By judgment dated 25.7.2007, the learned Additional Sessions Judge, Fast Track Court-II (ADHOC), Thrissur dismissed the appeal confirming the conviction and sentence imposed by the trial court. Thus, the accused 2 to 4 are before this Court in revision.
3. The prosecution case in brief is as herein-below:
On 9.12.2001 at 1.30 p.m. at Chamakkala bus stop in Edathirithy Village, all the accused, five in number, formed themselves into an unlawful assembly, armed with deadly weapons for the purpose of rioting and in prosecution of their common object assaulted CW-1 and PW-8. It is alleged that when the CW-1 and PW-8 arrived at the scene of occurrence on a motor bike bearing Regn. No. KL-8M 4200, the fifth accused had given a signal to the other accused and all the other accused rushed to the place of occurrence and wrongfully restrained CW-1 and PW-8. Thereafter, the second accused cut the right wrist of CW-1 with a sword after which CW-1 and PW-8 fell down along with the motor bike. The first accused shouted to the others to kill PW-8 and on hearing that, the accused Nos. 2 and 3 inflicted cut injuries on his head and left shoulder with swords, as a result of which he sustained injuries and a fracture on the skull, left shoulder bone, neck and left ankle. All the other accused also had beaten PW-8 all over his body.
4. Final report was filed before the Judicial First Class Magistrate, Kodungallur for the offences enumerated above against accused Nos. 1 to 5. The first accused-Shibu had absconded during the committal stage. Hence, the case against him was split up by the learned Magistrate as C.P. No. 34/2003 by order dated 30.5.2003. Case against accused Nos. 2 to 5 was committed to the court of Sessions, Thrissur after completing the usual legal formalities.
5. The learned Sessions Judge took cognizance of the offences punishable under Sections 143, 147, 148, 341, 324, 326 and 307 r/w Section 149 of IPC and Section 27(2) of the Act as against accused Nos. 2 to 5 as against accused Nos.1 to 4 in S.C. No. 301/2003 and made over the case for trial and disposal to the Additional Assistant Sessions Judge, Irinjalakuda. After the trial, the learned Sessions Judge convicted and sentenced accused Nos. 2 to 5 (Accused Nos. 1 to 4 in the sessions case) for the offences punishable under Sections 143, 147, 148, 341, 324, 326, 307 read with 149 IPC. Accused Nos. 2 to 5 preferred Crl. Appeal No. 194/2005 before the Sessions Court. The learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. After the dismissal of the appeal, the second accused (the first accused in the sessions case) passed away. Hence the accused Nos.3 to 5 have preferred this Criminal Revision Petition.
6. Crl. M.A. No. 2/2020 has been filed before this Court under Section 482 of Cr.P.C. by the revision petitioners to implead the victim/PW-8 as additional second respondent in the Crl. R
