Until Charges Proven Beyond Reasonable Doubt, Question Of Punishing Accused Doesn't Arise Merely Due To Heinous Nature Of Crime: Kerala HC

The Kerala High Court recently acquitted five RSS/BJP activists alleged of assaulting a CPI (M) worker due to political rivalry, on noting the absence of evidence to prove the identity of such persons beyond a reasonable doubt.

The conviction of respondent no 1 was, however, upheld. 

The Single Judge Bench of Justice P.G. Ajithkumar relied upon the Apex Court decision in Ashish Batham v. State of Madhya Pradesh (2002), which laid down that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the accused. 

"Until the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed," the Court reiterated. 

The prosecution case is that the appellants, who were RSS/BJP activists, formed an unlawful assembly, and in prosecution of their common object, attacked the injured (PW2) using choppers and inflicted various injuries on him. He alleged that the 1st accused uttered the phrase "kill him", and assaulted him, followed by the other six accused persons. PW2 averred that the assailants fled the spot when they noticed people coming to the place. 

The victim alleged that he was assaulted on grounds of political rivalry. 

It is noted that there was a police picket in the area, wherein PW1 was the police personnel on duty. PW1 stated that he knew about the incident as told by a jeep driver while on duty and that he along with other policemen on duty rushed to the spot where they saw PW2 with bleeding injuries. The police officer submitted that PW2 told him that the 1st accused along with six others had attacked him, following which the FIR was registered. 

The Court below, on perusal of the evidence, found the appellants guilty of offences under Sections 143 ('Punishment for Unlawful Assembly'), 147 ('Punishment for rioting'), 148 ('Rioting, armed with deadly weapon') and 307 ('Attempt to Murder') read with Section 149 ('Every member of unlawful assembly guilty of offence committed in prosecution of common object') of the IPC. 

Advocate S. Rajeev appearing on behalf of the appellants submitted that the evidence tendered by PW2 was insufficient to prove the identity of the accused persons. He asserted that when there was no evidence to render support to the identification of the appellants before the court by PW2, the latter's sole evidence could not be acted upon, particularly when the reason for the attack was alleged to have been political rivalry. 

The counsel further stated that since PW2 could not identify the appellants before the court by pointing out each of them with reference to their overt acts, his identification of the appellants before the court could not be acted upon. The counsel emphasized that the court below had not considered the evidence tendered by the prosecution in an appropriate manner, which resulted in a miscarriage of justice.

The Court took note that the injured PW2 had not identified each of the appellants by pointing out each of them from among those present in the dock during the examination, but that he had only deposed the overt acts of accused Nos.3, 4 and 5 that they along with the 1st accused had assaulted him using choppers causing injuries.

As regards the evidence rendered by a prosecution witness (PW3) that he had seen the appellant-accused persons leaving the scene in a perplexed mood while the former was passing by, the Court said, 

"Of course, if the assailants were spotted soon after the incident near the place of occurrence in an agitated mood, that may be a subsequent conduct having nexus to the offending act. The version of PW3 is that while he was passing along the road, the accused were seen leaving the place of occurrence. But his other version is that at the time when he reached the place of occurrence police personnel and others were there. Going by the version of PW1, he along with other policemen reached the spot after getting information from a jeep driver. He came from a distance of half-a-kilometre. It was after his reaching near PW2 only, PW3 came there. If so, he could have seen the appellants fairly at a distant place. His evidence cannot then be used to connect the appellants with the alleged incident". 

It thus determined that the question before it was as to whether the evidence of PW2 along with other circumstances was sufficient to establish the identity of the assailants. 

The Court however dispelled the arguments raised by the appellants regarding the delay in registration of FIR by PW1 police personnel. 

Taking note of the Apex Court decision in Shahid Khan v. State of Rajasthan (2016) that when statements of witnesses to the occurrence were recorded after three days, and no explanation for that delay was forthcoming, the possibility of a deliberate shaping of the case cannot be ruled out, the Court observed:

"...the said principle has bearing in this case also, since the name of none of the assailants, except the 1st appellant, was disclosed any time before submitting Ext.P8 report in the court". 

Noting that the names of all the assailants did not find a place in the F.I.R., the Court stated that the delay in recording the statements of witnesses, who could have identified the assailants, created doubts about the identification of accused Nos. 2 to 6 by the prosecution witnesses.

On such analysis, the Court was of the considered view that the prosecution could prove beyond doubt the complicity of the 1st appellant alone and not that of the other appellants. 

"The evidence tendered by PW2 that he was attacked by Shinoj and his companions is devoid of any infirmity. His version that he knew Shinoj even earlier can certainly be believed. When he stated soon after the incident to PW1 that seven persons, including Shinoj were the assailants, there cannot be any doubt about his complicity to the offence. Although PW2 identified other appellants also before the court as the assailants, there is no other evidence to corroborate that version. None of such assailants was identified by PW2 during the investigation. Based on the claim of PW2 that he knew appellant Nos.2 to 6 before, there cannot be a finding that they were the parties to the unlawful assembly of the assailants. In the circumstances, I am of the view that the court below went wrong in holding that besides the 1st appellant, the persons formed the offending group were appellant Nos.2 to 6," it observed. 

The conviction of the 1st appellant was thus confirmed, while the other appellants were set at liberty.  

Public Prosecutor Seena C. appeared on behalf of the State. 

Citation: 2024 LiveLaw (Ker) 90

Case Title: Shinoj Singh & Ors. v. State of Kerala 

Case Number: CRL.APPEAL NO. 1656 OF 2006

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