The court held that if the benefit of doubt is given to some accused, it must apply equally to all similarly situated, leading to the acquittal of the 1st accused.

JUDGMENT :

(A. BADHARUDEEN, J.)

This Criminal Appeal has been led under Section 374(2) of the Code of Criminal Procedure by the 1st accused in CC No.444 of 2002 arising out of Crime No. 315 of 1998 of Nemom police station, challenging the conviction and sentence imposed against the appellant as per judgment dated 11.09.2007.

2. Heard the learned counsel for the 1st accused/appellant as well as the learned Public Prosecutor in detail. Perused the case records.

3. For effective and easy discussion, the parties in this appeal will be referred to as ‘prosecution’ and ‘ accused’ hereafter.

4. The prosecution case is that, on 06.12.1998, a hartal was organized by a political party, and while the said hartal was in progress, accused Nos.1 to 7 formed themselves into an unlawful assembly knowing that they are all members of the said assembly, to commit crime, and thereafter in prosecution of their common object, they assembled at 08.30 p.m., in Karakkamandapam and pelted stones against the bus driven by PW1, which was owned by the Government of Tamil Nadu. The prosecution allegation further is that, due to pelting of stones, the front glass of the bus was broken, and due to contact with the broken glass, PW1 sustained injuries on his face and right clavicle. That apart, the Tamil Nadu Government sustained a loss of Rs.16,000/- due to breakage of the glass of the bus. On this premise, the prosecution alleged commission of offences punishable under Sections 143, 147, 148, and 333 r/w 149 of the IPC as well as Section 3(a)(e) of the PDPP Act, by accused Nos. 1 to 7.

5. When the matter was committed to the Court of Session, Thiruvananthapuram, the same has been made over to the Additional Sessions Court Fast Track – III, Thiruvananthapuram, for trial and disposal. The Additional Sessions Judge framed charge for the said offences and tried the matter. PWs 1 to 9 were examined, Exts. P1 to P12, and MOs 1 and 2 series were marked on the side of the prosecution. Thereafter, the accused was questioned under Section 313(i)(b) of the Cr.P.C. and explained all the incriminating circumstances against him brought in evidence. Although the accused was then provided with opportunity to adduce defence evidence, he did not adduce any defence evidence. Later, on appreciation of evidence, the trial court found that the 1st accused committed offences punishable under Sections 143, 147, 148, and 333 r/w 149 of IPC as well as Section 3(2)(e) of the PDPP Act, and accordingly, he was sentenced as under:-

“The 1st accused is sentenced to undergo rigorous imprisonment for 3 months u/s 143 of IPC, rigorous imprisonment for 6 months u/s 147 of the IPC, rigorous imprisonment for one year u/s 148 of the IPC, rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- in default to undergo further period of imprisonment for 6 months u/s 333 of the IPC r/w 149 of the IPC and to undergo rigorous imprisonment for 6 months and to pay fine of Rs.2,000/- in default to undergo further period of imprisonment for 3 months u/s 3(2)(e) of P.D.P.P. Act r/w 149 of IPC. Substantive sentences shall run concurrently. Set o allowed from 17.12.1998 to 16.12.1998.”

The trial court acquitted Accused Nos. 2 and 4 to 7 by giving them benefit of the doubt, while refiling the case of the 3rd accused.

6. It is pointed out by the learned counsel for the 1st accused that, in order to prove the occurrence, PW1 — the injured, who is the driver of the bus alleged to have been attacked by the accused, was examined. That apart, PWs 2 and 3, two more eyewitnesses, also were examined, but they turned hostile to the prosecution. It is pointed out by the learned counsel for the 1st accused that on scanning the evidence of PW1, he had spoken about the occurrence, but during cross-examination, he failed to segregate the overt acts at the instance of the accused persons with certainty. According to the learned counsel for the 1st accused, the evidence of PW1 is to the effect that someone from the mob pelted