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Govindan Krishnan and ors. Vs. Sirkar Prosecutor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala
Decided On
Judge
Reported inAIR1950Ker20; 1950CriLJ833
AppellantGovindan Krishnan and ors.
RespondentSirkar Prosecutor
Cases ReferredIn Narayanan v. Sirhar
Excerpt:
- - among those who were in the habit of committing such thefts were the labourers emplayed in the estate and also the poor folk who lived in the neighbourhood. this also bad enraged the agitators against the watchers, and as they were being retained in service in spite of resolutions passed at the meetings of labourers that they should be dismissed, it was alleged by the prosecution that accused 8 to 6,10 to 12 and 21 assembled in the tea shop of accused 11 at the kalanjoor junction on the morning of 2.5-1123, for the purpose of forming a plan to murder them. their presence in the estate was stated to have been meant for the purpose of terrorising the poor coolies who were doing work in the estate. 84 at the time in which he was arrested on the next day after the occurrence, these.....koshy, j.1. the accused twenty two in number were charged before the sessions court, quilon, with the offence of rioting armed with deadly weapons, for haying caused the death of two persona mahamad sha and alim khan and for having attempted to cause the death of one azim khan (p.w. 6) in furtherance of their common object. charges were laid against each for the offences punishable under asection 140, 801 and 307, travancore penal code. excepting accused 1 and 12 who have been acquitted, the others have been convicted and sentenced a3 follows, accused 2 to 11 and 18 to 22 have been convicted for the offence of murder and in respect of the conviction for each of the two murders committed by them they have each been sentenced to undergo rigorous imprisonment for life. they have also been.....
Judgment:

Koshy, J.

1. The accused twenty two in number were charged before the Sessions Court, Quilon, with the offence of rioting armed with deadly weapons, for haying caused the death of two persona Mahamad Sha and Alim Khan and for having attempted to cause the death of one Azim Khan (P.W. 6) in furtherance of their common object. Charges were laid against each for the offences punishable under aSection 140, 801 and 307, Travancore Penal Code. Excepting accused 1 and 12 who have been acquitted, the others have been convicted and sentenced a3 follows, Accused 2 to 11 and 18 to 22 have been convicted for the offence of murder and in respect of the conviction for each of the two murders committed by them they have each been sentenced to undergo rigorous imprisonment for life. They have also been convicted Under Section 140, Penal Code, and they have each been sentenced to undergo rigorous imprisonment for one year. Accused 2 to 10 and 17 and as have been found guilty Under Section 307, Penal Cods and they have each been sentenced to undergo rigorous imprisonment for three - years. The sentences are to run concurrently. Criminal Appeals 5 to 24 have been filed in their order by accused 2 to 11 and 13 to 24 and the sentence of imprisonment for life awarded to each of them has been submitted to this Court for confirmation in Referred Trial No. 7 of 1121. The acquittal of accused 1 and 12 is assailed in appeal by the Sirkar in Criminal Appeals 52 and 53 of 1124.

2. Mahamad Shah, AliKhan and Azim Khan are three of the Panjabi Mussalmans who were at the time of the occurrence emplayed as watchers in the Skinner puram Estate situated near the Kalanjoor junction near about the 23rd mile-atone on the road from Kayenkulam to Funalur. They were there for about two years before the occurrence and their main task was to prevent theft of cocoanuts, arecanuts and other crops from the several portions of the extensive area of land which comprised the estate. Among those who were in the habit of committing such thefts were the labourers emplayed in the estate and also the poor folk who lived in the neighbourhood. The posting of these Mussalmans as watchers was therefore resented by the labourers. There was a Labour Union formed under the president ship of accused 1 who was formerly a Kankani in the estate, to represent the cause of labour in the locality. The Union had its office at the Elamannoor Market at the Kalanjoor junction, Accused 3 and 3 were the secretaries of the Union, On the part of the labour in the estate there was a demand for higher wages and increased supply of rice and there were attempts to organise strikes to force the management of the estate to accede to their demands. Several meetings were held under the auspices of the labour union and on 9-4-1123, there was a procession composed also of such of the labourers that struck work and they wanted to enter the estate and persuade the labourers inside the estate to join them. The management had instructed the Musalman watchers to be careful, not admit any of the demonstrators inside the estate and they were found equal to their task, Not one of those who composed the procession was allowed to enter the gates of the estate. This also bad enraged the agitators against the watchers, and as they were being retained in service in spite of resolutions passed at the meetings of labourers that they should be dismissed, it was alleged by the prosecution that accused 8 to 6,10 to 12 and 21 assembled in the tea shop of accused 11 at the Kalanjoor junction on the morning of 2.5-1123, for the purpose of forming a plan to murder them. Before taking a final decision they wanted to consult accused l, the president of the labour union. He came to the place a little later and with his approval they decided to do away with the Mussalman watchers that evening itself when they as usual would come to the tea shop of P.W. 1 at the same Kalanjoor junction. Accused 1 left for A door by a bus immediately afterwards and the others made preparations by collecting sticks and other weapons for the attack that was contemplated against the watchers. The accused and certain others numbering in all about a hundred collected at the junction armed with sticks and choppers at about 4-30 p. m. on 2-5-1123, Mahammad Shah, Ali Khan and Azim Khan came to the tea shop of P.W. 1 to drink their evening tea as usual and when they were returning to the estate after tea, the accused and their companions followed them and fell upon them on the road near the 23rd mile-stone, Accused 8 beat Mahammad Shah on his head with a stick and asked the others to beat Ali Khan and Azim Khan. Accused 4 beat Ali Khan on his head with a stick. This was followed by a severe and indiscriminate beating of these two persons by accused 2 to 22 and others in their company and they fell down on the road side near to the 23rd mile-stone. The crowd then attacked Azim Khan P.W. 6 beating him with sticks and he struck back with a stout cane that was in his hand. One Kunjan in the company of the accused caught hold of P.W. 1 in a tight grip round his waist and P.W. 5 then took out a knife and stabbed Kunjan on his abdomen. An. other person Vasu then beat P.W. 5 on his arm causing the knife in his hand to fall down, When the knife dropped from his hand, P.W. 5 considered it dangerous to fight against a crowd of men armed with sticks and he ran southwards in the direction on the estate. Accused 2 to 10 pursued him and when P, W. 5 ran to a distance of about a furlong, accused 2 threw a chopper at him which missed its aim and fell on the road, When p, W. B tried to pick it up, the pursuers were able to surround him and prevent him from running any further. Accused 2 caught hold of him from behind and held him as that the other accused were able to beat him rather brutally. But P.W. 5 managed to out accused 2 with the chopper that he picked up from the road, P.W. it was beaten even after he fell down and believing that he was dead, accused 2 to 10 returned to the place where Mahammad Shah and Ali Khan were lying injured. These accused and others then struck them again with their sticks. Kunjan lay at the scene fatally injured. Accused 12 bandaged his wounds and removed him to the Kalanjoor road about 20 feet east of the junction where he died soon afterwards. Accused 1 arrived at the scene just at this time in a bus coming from Adoor and when he alighted from the bus, he was told by accused IS that one of their men, Kunjan was killed. To the question from him where the Punjabi Mussalmans were, accused 1 was told that they were lying nearby injured. He then asked the accused not to leave them alive. The accused therefore beat them again until they were dead. P.W. 5 was able to find his way to the estate with the help of P.W. 2 after the accused had left him taking him to be dead. This in brief is the case put forward by the prosecution,

3. The earliest information about the occurrence was given to the police by Vasu who was injured in the course of the riot. He was taken in a cart to the Police Station at 8-30 p. m. on 2-5-1123 and there he gave the statement; marked as Ex. A. H. In it be said that the four Punjabi watchers along with 50 other employees in the Bkinnerpuram Estate went to the Kalanjoor junction accompanied by P.W. 34 the Superintendent of the Estate and threw stones at a ration shop owned by one Narayanan. Those who were responsible for the management of the estate had reason to be inimical towards Narayanan as he had supplied tapipoa to the coolies of the estate who were dismissed from service on account of their association with agitators against the management. Vasu tried to prevent the throwing of stones and he was stabbed with a dagger by a Punjabi watcher. Seeing that Vasu was stabbed, accused 2 came up and he was stabbed on his back, shoulder and head by another of the watchers. One Kunjan came there next and he was stabbed by one of the Punjabis and Kunjan died as a result of the injuries sustained by him. A statement Ex, AG in almost the same terms was given by the 2nd accused at 9 P. M, the same night. The 17th accused had also sustained an injury on bis head and a statement of his Ex. AS was recorded at 10 A- H. on 8- 6-1123. The injured persons Vasu and accused a were sent to the hospital at Adoor. But as the condition of Vasu was serious, he was sent for treatment to the District Hospital, Mavelikara where he died on the next day as a result of the injuries sustained by him.

4. The Inspector of Police, P.W. 35, after recording the above statements went to the scene of occurrence and he remained there the whole night with his men guarding the dead bodies of Muhammad Shah, AH Khan and Kunjan, Early, the next morning he went to the Skinnerpuram Estate and recorded the statement of P.W. 5, Ali Ehan which is marked as Ex. O. The time when the statement was taken was not noted in Ex. G. P.W. 35 stated in evidence that he recorded the statement at 6 a.m. on 3 5-1123. P.W. 6 was not able to give the names of any of the assailants. He stated that while he, Muhammad Khan and Ali Khan were returning to the estate after drinking tea at P.W, l's tea-shop on the evening of 2-5-1123 they were followed by about 25 persons who were armed with sticks and choppers. When they reached the SSrd milestone on the Kayenkulam Funaloor Boad, P.W. 5 was beaten first with sticks on the head and the arm and as a result he fell down on the road. The assailants then turned against Muhammad Ehan and Ali Khan and while they were being beaten, P.W. 5 stood up and ran for his life. He was pursued by some of the assailants and he was caught by his pursuers when he ran for about a furlong along the road to the south. There he was beaten with sticks and cut with a chopper and the assailants left him believing he was dead. P.W. 5 stated that some of the assailants were those who were formerly emplayed in the estate and who were dismissed from service.

5. After recording the statement of P.W. 6, the Inspector of Police proceeded to the scene of occurrence to hold the inquest over the dead bodies of Muhammad Shah, Ali Khan and Kunjan. The inquest over the dead body of Muhammad Shah was started at. 7 a.m. on 3-6-1123 and was over by 10 A. M. The report is Ex. P. The inquest reports over the dead bodies of Ali Khan and Kunjan are respectively Exs. E and W P.Ws. 2, 12, 25 and 30 are the witnesses who were examined at the inquest.

6. The first information report Ex. AL was prepared by the Inspector of Police at 9 P. M. on 3-5-1128 and a case was registered as Grime No. 62 of 1123 against 26 persons named in Ex. Ali. It was stated that about seventy others who were not identified had participated in the crime. All the accused except accused 11, 12, 20 and 22 were among the 28 persons against whom the case was registered. When the charge-sheet was filed in Court after investigation ten persons were omitted from the original list of 23 and accused 11, is, 20 and 22 were added making up the present list of accused 1 to 22. On the information given by the deceased Yasu and accused 2 Krishnan, a case was registered against P.W. c as crime no. 51 of 1123. P.W. 5 was after investigation charged with the offences punishable Under Sections 301 and 821, Travancore Penal Code, for having caused the death of Kunjan and Yasu and for causing hurt to accused l and 17 in this case. That led to Sessions case No. 40 of 1123 and it was tried together with this case. The accused (P.W. 5) in that case has been acquitted on the ground that he was only exercising his right of defending himself when he caused injuries to bis assailants. Criminal Revision Petition No. 166 of 1121 is filed against the judgment of acquittal in the case by witness 3 for the prosecution who is accused 2 in the present case.

7. There were four Panjabi Musaalmans emplayed as watchers in the Skinnerpuram Estate. Although initially they were appointed for the purpose of preventing petty thefts of cocanuts, arecanut and other crops in the estate, they were found useful to the management in the matter of guarding the gates of the estate against the intruders who wanted to create discontent and organise strikes on behalf of the labour emplayed in the estate. There was general discontent among the labourers in the estate against the management and there was regular demand for increased wages and increased rations. As the management did not accede to these demands there have been several attempts to organise strikes among the labourers. There was a labour Union in the locality with accused 1 as its president. Accused 3 and 8 were the secretaries of the Union. Under the auspices of the Union public meetings used to be held in the premises of the Union Office at the market place at the Ealanjoor junction. P. W 22 is the superintendent of a small estate in the neighbourhood and he gave evidence that he attended a meeting of the labourers held on 29-3-1123 at the said market place under the president ship of the 1st accused. Accused l, 6 and 8 were the speakers at the meeting. The 1st accused in his speech reiterated the demand of the labourers that they be given enhanced wages and an increased supply of rice. P.W. 22 stated further that 1st accused referred to the conduct of the management in retaining the services of the Punjabi Mussalmans in spite of the repeated requests of the labourers that they should be dismissed from the estate. Their presence in the estate was stated to have been meant for the purpose of terrorising the poor coolies who were doing work in the estate. The president, therefore, exhorted the labourers to strike work in the estate. P.W. 34 is the Superintendent of the Skinnerpuram Estate and and be gave evidence that the 1st accused was a Kankani in the estate during the years 1920-1922 and 1942-1944 and that be was interested in creating labour trouble in the estate. Accused 6, 6,12,15 and 19 are also persons who were former-ly emplayed in the estate in some capacity or other. There was an attempt to organise a strike in the estate on 9-4.1123 and when a set of discontented labourers marched to the estate in procession on the said day the Punjabi watchers under instructions from the management barred their entry into the estate. Accused 6, 8 and 19 were among those who were prevented from entering the estate on that day. On the same day a notice was published marked as Exs. and stating that there will be a public meeting at the central maidan at Adoor to protest against the conduct of the Punjabi watchers in obstructing the entry of the labourers into the estate on the morning of that day. It was stated in the notice that the 'Punjabi Rowdies' attempted to molest the labourers who sought entry into the estate for their work on the morning of 9-4-1123. This incident was stated to be a part of a campaign on the part of the management to suppress the peaceful agitation of the labourers to redress their legitimate grievances and to continue in their usual method of oppressing the labourers by coercing them to do work for low wages. This notice was issued by accused 8 who was the secretary of the labour union. Exhibit AE is another notice issued by accused 1 as president of the union announcing a public meeting at the market place at Kalanjoor junction on 26-4-1133 to devise means to relieve the labourers from the highhanded oppression that the management were resorting to for the purpose of preventing the labourers from making even the moat constitutional agitation against the management for getting the grievances of the labourers redressed. It has come out in evidence that there was a meeting of the labourers at Parakode on 21- 4-1133. Some of the labourers who were returning home after the meeting were assaulted on the road and p, W. 84 and some of his employees were accused of having committed the assault. That case was pending at the time of the occurrence and among the accused was one known as Sandom Mathai em- ployed as a cartman under P.W. 3d. There was another case pending against P.W. 84 at the time in which he was arrested on the next day after the occurrence, These circumstances show that there was a good deal of animosity towards P.W. 34 who was the person directly in charge of the estate, on the part of some of the labourers and ex-employees of the estate and that there were complaints against him that he was utilising the services of the Punjabi Mus-salman and Sandow Mathai to terrorise and intimidate the labourers from pursuing any sort of agitation against the manner in which the estate was being managed by P.W. 3i. If therefore the accused had a motive to act in the manner they did towards the Punjabi watchers, the manage, ment had also the motive to include among the accused all those who were engaged in carrying on an intensive agitation against the management, irrespective of the fact that they participated in the commission of the offence or not, The learned Sessions Judge has likewise observed that

it appears to me that the defence contention that the management of the Skinnerpuram Estate had a motive to falsely implicate the 1st accused and his associates is entitled to as much weight as the prosecution case that the accused had a motive foe murdering the Punjabi watchmen.

This observation should be applied to find out whether all the accused were participants in the commission of the offences alleged against them.

8. The case of the prosecution that accused 3 to 6,10, 11,12 and 21 met at the tea-shop of accused on the morning of the day of the occurrence and had decided to murder the Punjabi watchers after consulting the first accused, has been discarded by the learned Judge as false. P. W- 16 and P.W. 17 were examined to prove the conspiracy and they have been disbelieved. It cannot, therefore, be true that the accused started collecting weapons even from the morning. It is disclosed from the evidence that the accused were not armed with any sharp weapons. The witnesses have only stated that sticks and stones were used. The sticks that were recovered from the scene of occurrence are Bo big and unwieldy that nobody could have intended to use them as offensive weapons. There is evidence that at the time of the occurrence new sticks were out and big portions of lopped off branches found near the scene of occurrence were picked up for using them against the victims. After the victims had fallen down big pieces of stones were also used to hit them with and these must also have been picked up from the spot. These circumstances tend to show that there was no previous preparation on the part of those who committed the crime. If really the murders were committed as a result of premeditation and design, the assailants could well have armed themselves with sharp and deadly weapons and could have easily accomplished their act without danger to themselves. In the present case, however, even before they started the fight, two in the party of the assailants so-called, were injured fatally and two others were seriously injured. This is a clear indication that the fight started suddenly and unexpectedly and that the Punjabi Mussalmans concerned in the fight were not slow to attack in return. It was very close to the market place and there were a number of shops on either side of the road where the oocurrance took place. The Punjabis should have been conscious that it would not be wise on their part, foreigners as they are, to start a fight at the place where at a moment's notice- any number of men might assemble against them. There was also a general feeling of animosity against them so that it was possible for any one to provoke them and drag them into a fight, We are, therefore, definitely of the view that the Punjabi watchers Mohammad Shah, Ali Khan and Azim Khan were attacked at the scene of occurrence not exactly as the result of a premeditated plan, but on account of some provocation offered at the spot by the watchers to persons who had reasons to bear a grudge against them. As the prosecution alleged that the accused conspired and had prepared to attack the Punjabis, there was no need for them to prove how exactly the fight started except that one of the accused gave the signal to begin the assault. The learned Judge has found against the previous design set up by the pro-secution, it was therefore incumbent on him to consider on the materials available and on the broad probabilities arising from the circum-stances of the ease as to which party started the fight. Two Punjabi watchers of the Skinner-puram Estate were brutally beaten to death and another was very seriously beaten and two of the other party met with their death and two others were seriously injured as a result of stabs inflicted on them by one or other of the Punjabis. These are facts we know for certain.

9. The earliest information regarding the occurrence was carried to the police station about three hours of the occurrence by Vasu and accused 2 who sustained injuries at the hands of the Punjabis. They stated that the four Punjabi watchers accompanied by about 50 employees in the estate started the trouble by throwing stones at the ration shop of one Narayanan situated at the Kalanjoor junction, Yasu, Kunjan and accused 2 were stabbad by the Punjabi watchers as they went near one by one to prevent the throwing of stones. It was not the game Punjabi who stabbed Vasu that stabbed accused 2. They were not able to mention the names of the Punjabis who stabbed them. P.W. 85 the Inspector of Police reached the scene of occurrence in the night after recording the statements Bs3. A n and a j of Vasu and accused 2 and it is said that he then learned that the version given in Exs. A H and A j was not the true one. He took the statement Ex. G of the Punjabi watcher P.W. 5 early the nest morning and in it P.W. 5 stated that about 60 persona armed with sticks and choppers attacked the Punjabis and that he was attacked first. It was at this juncture and before the preparation of the inquest report that P.W. 36 the Assistant Superintendent of Police and the District Superintendent of Police Mr. Usman reached the scene of occurrence. The inquest over the dead body of Mahammad Shah Ex. was begun first at 7 A. M. and the first witness examined at the inqueat was P.W. 30. He was a tapper in the estate and the learned Judge those to accept it as the earliest version given by a witness and he believed the evidence of the eye-witnesses except that of P.W. 20 and P.W. 29 only to the extent it was corroborated by the statement of P.W. 80 at the inquest. Even the evidence of P.W. 30 was accepted only to the extent it was corroborated by his statement in Ex. F.Mr. Malloor Govinda Pillai.'the learned advocate for the appellants argued that it was illegal to have used the statement of a witness at the inquest to corroborate the evidence given by him at the trial. Several decisions were cited by the learned advocate. We shall refer to some of them. It was held in Sirhar v. Kunju Eunju, 9 Tr. L.T. 629 that statements made by a witness at the inquest cannot be used to corroborate earlier statements made by him. They may be used to contradict a witness if he denies specific statements made therein. In Narayanan v. Sirhar, 9 Tr, L, T. 1408 it was held that it is well-settled law that statements of witnesses at the inquest cannot be used aa corroborative evidence and that such statements could only be used by the accused for the one purpose of contradicting them. The learned Government Pleader who appeared for the Sirkar argued that what tha Sessions Judge meant was that he believed the version of the witnesses only to the extent that it corresponded to what P.W. 30 stated in Ex. F. The statement of a witness at the inquest can be used by the accused to contradict any portion of the evidence given at the trial and it will be wrong to test the truth of the evidence by the statement given by the witness to the police during the investigation of the case. The learn, ed Judge went a step further to say that the evidence of a witness which is intrinsically not trustworthy could be believed to the extent it was the same as the statement of another person at the inquest.

10. It was argued on behalf of the appellants that before starting the inquest on the morning of 3-5-1123 there was sufficient time for the police to confer with the management and shape a case so as to counteract the effect of the statements made earlier by 'Vasu and accused 2 regarding the occurrence. The first witness examined at the inquest was P.W. SO a tapper in the estate. Being a tapper in the estate, it was argued that it was possible for the management and the polios to make him give a distorted version of the occurrence so that it would prevail over the defence version made by Vasu and accused in Exs. A II and A J. It was further stated that P.W. 30 would have been persuaded to mention among those who participated in the occurrence all those persona against whom the management bore a grudge on account of the systematic agitation that was carried on by the Labour Union against the management. These matters have to be considered while dealing with the evidence in the case.

11. The eye-witnesses examined for the prosecution are P.W. Section 1 to 4,9,13, id, 20,21,23 to 55 and 26 to so. Of these P.Ws. 4, 12, 26 and 30 were examined at the inquest. The learned Sessions Judge discarded the evidence of P.Ws. 3, 21, 28 and 26 as unreliable. Regarding P.Ws. l and 4 the learned Judge stated that the tea shop of P.Ws. l and 4 was situated in a property in the possession of the Skinnerpuram Estate. P.W. 2 was stated to have been a dependent of the Manager of the Estate and his son was employed under him in his estate at Adoor. P.W. 14 lived in a compound belonging to the Skinnerpuram Estate. P.W. 24 was the son of a watcher in the Skinnerpuram Estate. P.W. 28 had a charcoal business and he was supplying charcoal to the estate. The learned Judge made these observations about these witnesses and suspecting their capacity to give a disinterested version of the occurrence, he nevertheless believed them to the extent their evidence was corroborated by the statement of P.W. 80 in Ex. F and by the evidence of P.W. SO and P.W. 29. P.W. 20 and P.W. 29 are according to the Judge reliable and disinterested persons who can well be believed in toto.

12. The learned Sessions Judge examined the evidence of the witnesses only for the purpose of ascertaining whether accused l and 12 participated in the commission of the offences charged against them In the statement of P.W. 80 in Ex. F, he did not implicate accused 1 and 12 while at the evidence he stated that ac cused 1 came to the scene towards the last stage of the occurrence and then he was told by accused 12 what had happened there so far. Accused l then asked the other accused not to leave the Punjabis alive. The accused did again beat Mahammad Shah and AH Khan till they were dead. This version was discredited by the learned Judge and he, therefore, said that the evidence of P.W. 30 could be believed only to the extent that it was corroborated by the statement of P.W. 30 at the inquest. The other witnesses examined at the inquest did not then implicate accused 1 and 12 in the manner they did while they gave evidence at the trial. In the case of the other witnesses also whose veracity the learned Judge had reason to suspect he was anxious to discredit them only to the extent they implicated accused l and 12. It was the clear duty of the Judge to examine on the evidence not only whether accused l and 12 were properly joined as accused but also whether each one of the accused did form a member of the unlawful assembly that committed the riot and the murders attributed to the assembly. The earliest version so called of the tapper in the estate could not be accepted as the true version, and it cannot be said that the tapper under the influence of the management did not implicate persons who did not actually take part in the riot. We have, therefore, no doubt that the version given by p, w. SO in Ex. F did not represent the correct version of the occurrence and that the learned Judge was wrong in accepting that as the true version and in testing the reliability of the witnesses with reference to that version. In a case of this kind, where a' motive can be attributed to the witnesses to falsely implicate persons to whom they bore a grudge, it will he unsafe to place any reliance on such witnesses in deciding whether any of the accused did participate in the offence. The Court should be guided in the matter only by the evidence of such witnesses whose veracity is beyond question.

13. As no conspiracy or previous design was proved in the case, the learned Judge's conclusion that the accused formed themselves into an unlawful assembly armed with deadly weapons with the common object of murdering the Punjabis employed as watchers in the Skinner, puram Estate was only an inference arising from the events that actually happened. At the earliest point of time after the occurrence, the prosecution was interested in including among the accused as many of the persons engaged in creating labour trouble in the estate and who were carrying on a mischisvous propaganda against the management of the estate. Even according to the prosecution, there were as many as 93 persons who collected themselves with sticks and choppers to attack the Punjabis. Twenty eight of them only were included in the first information report and P.W. 35 the Inspector of Police who investigated the case dropped ten of them and included four others at the time when the charge-sheet was filed in Court. This is a clear indication that the information available to the police either by the statements taken at the inquest or collected otherwise was not definite as to who at all participated in the commission of the crime. Under such circumstances it will be unsafe to assume that any of the ac cused was a member of the unlawful assembly unless it is proved by unimpeachable evidence that he did an over act in furtherance of what may be called the common object of the unlawful assembly. The common object of the assembly is not to be fixed with reference to what actually happened. It has to be ascertained with reference to the evidence regarding the manner in which the fight started and the broad probabilities arising from all the circumstances relating to how the fight developed.

14. We have read through the evidence of all the eye-witnesses, P. Ws. 1 to 4, 9, 12, 14, 20, 31, 23 to 25 and 28 to 30 and we have no hesitation to characterise the evidence of P.Ws. 8, 23 and 25 as totally unreliable, The prosecution witnesses 1, 2, 4, 9, 12, 14, 21, 25 and 30 were connected with the Skinnerpuram Estate in one way or other and the learned Judge observed that their testimony was acceptable only in so far as the story told by each one of them did accord with the statement of P.W. SO in Ex. F inquest. We are not satisfied that the statement of a tapper in the estate at the time of the inquest would have been true either as regards the details of the occurrence or as regards the particular persons who took part in the assault on the Punjabis. The circumstances under which the statements were recorded at the inquest to which we have referred above, were such that the prosecution had a motive to have a case made ready to meet the defence version which were given to the police Boon after the occurrence in the statements in exb. a h and A 3. If the veracity of the witnesses who were examined at the trial was questionable otherwise their testimony could not be accepted even lo the extent that it conformed to any particular statement made at the inquest. We, there. fore, reflect the evidence of these witnesses in toto. We are then left with the evidence of P.W. 20 and P.W. 29. They seem to be absolutely disinterested in the prosecution. P.W. 20 was living in a house 60 feet removed from the scene of occurrence and while he was in his house on the evening of 2-5 1123 his attention was attracted by the noise attending a fight that was going on near about the Kalan. joor: junction.... He stepped into the yard and found two Punjabi Watchers of the Skinner, puram Estate lying on the road-side near the 23rd milestone. He knew them previously and he mentioned their names as Mahammad Shah and AH Khan. He found all the accused excepting accused l and the deceased Kunjan and Vasu standing round and beating them with sticks. At that time P.W. 5 Azim Khan was standing alone at a distance of about 10 to 15 feet from that place. The accused then surrounded him and did beat him with sticks. He particularly noticed accusedl7 and 22 among those who beat him, Azim Khan did beat back with a cane that he had in his hand, Kunjan, it was stated, caught hold of Azim Khan who stabbed Kunjan with a knife that he took out at that time. Vasu then beat Azim Khan with a stick made of solid rubber and Vasu was also stabbed by Azim Khan. Accused 5 then struck at the hand of Azim Khan which held the knife and caused the knife to fall down. Azim Khan ran southwards when he lost his knife and the witness stated that accused 2 to 10 pursued him and caught him after he ran for about a furlong. There again he was beaten by his pursuers and the witness was not able to say what each of them did against Azim Khan. This witness was the Pakuthy Accountant and he identified the accused whom he implicated although the accused were not standing in the dock in the order of their numbers. The learned advocate for the appellant strenuously contended that as the witness did not inform the Police about the Occurrence, and as be was not available for examination at the time of the inquest it should be supposed that he did not witness the occurrence. It is true that he was not examined at the time of the inquest but it does not necessarily follow that he did not see the occurrence. He would naturally have desired to avoid giving evidence in a case of this kind so that he may not dis-please either the accused or the management of the estate. But when he was confronted by the Assistant Superintendent of Police one or two days after the occurrence he had to state to him all that he saw at the time of the occurrence. We accept his explanation that on the morning on the next day he had no time to wait at the place as he had to go for duty to the Pakuthy Office. We believe his oral evidence regarding that part of the occurrence which he witnessed.

15. P.W. 29 is another disinterested witness. He was reading a newspaper on the verandah of the Chitty Office of one Nilacantan at the Kalanjoor junction at about 6 P. M. on 2-5-1123 when he heard somebody calling out 'Strike' and the sound of a beating that followed. The witness stood up and saw all but accused l standing together and beating the two de. ceased Punjabi Watchers of the Skinnrepuram Estate. Two of the Punjabis fell down at the place where they were beaten. The other Punjabi P.W. 6 was standing four or five feet apart. Five or eight of the accused turned to him followed by the others and they beat him. Accused 17 and 22 beat him with stricks. He also struck back with the cane that be had. Kunjan then caught hold of P.W. 5 and P.W. 5 took out a knife and stabbed Kunjan. Kunjan fell down there as a result of the stab inflicted on him. Yasu then beat f. W. 5 with a stick made of rubber and he was also stabbed by P.W. 5. One of the accused then struck at the hand of P.W. G and the knife dropped, P.W. S ran southwards and some of the accused followed him. This witness saw the occurrence only so far.

16. It is seen from the evidence of these two witnesses that the three Punjabis were standing almost together and two of them standing a few feet away from the third, was attacked first. P.W. 29 who was sitting in a shop close by did not see any crowd previously preparing to attack the Punjabis. To him it appeared to be a sudden attack and his attention was attracted by the sound of beating when somebody called out to strike. Those two Punjabis fell down as a result of the beating and all the accused turned to P.W. 5 and beat him. It was from this stage that F. W. SO saw the events that followed including the later part of the beating of the disabled Punjabis. P.W. 20 was able to identify accused 17 and 22 among those who beat P.W. G and accused 2 to 10 among those who followed P.W. 5 when he ran after inflicting stab injuries on Kunjan and Yasu, Believing these witnesses we have to hold that accused 2 to lo and 17 and 22 deceased Kunjan and Vasu were among those who attacked the Punjabis on the evening of 2.5-1128 at the 23rd mile stone on the Kayen-kulam Punaloor Eoad. Although the prosecution would allege that there were about a hundred persons, there is no reliable evidence to implicate any one except the accused above mentioned. These witnesses have not been able to say how exactly the beating began, but it will not be un-reasonable to conclude from the evidence of these witnesses that the accused were the aggressors. As has been stated already these persons had not armed themselves with any sharp weapons previously. They picked up crude sticks from near about the place and they used it brutally against the victims.

17. It is now necessary to consider what exactly was the common object of those persons who, it may be inferred from what they did, had formed themselves into an unlawful assembly. The common object of these persons should also follow from what exactly they did. Alter they beat Mahammad Shah and Ali Khan until they fell down on the road, they turned to P.W. 5 and beat him. But P.W. S was armed with a knife and he was found to be a formidable enemy when he stabbed two of their companions and inflicted fatal injuries. They pursued him when he ran and although they were able to catch him he was not beaten to death at the spot where he fell. It was alleged by the prosecution that the accused left him there believing he was dead. It is difficult to suppose that they could have believed he was dead when really he was alive, The injuries substained by P.W. 5 were also very serious. We are therefore led to conclude that they had no idea of killing the Punjabis, Even after they beat Hahammad Shah and Ali Khan for some time until he was disabled, all oi them turned to P.W. 5 and beat him. If they had the idea of killing Mahammad Shah and Ali Khan some of them could have continued the assault on them deputing the rest of them to beat P.W. The idea was not, therefore, to murder the Punjabis but to give them a sound thrashing for all the insolent conduct on their part in supporting the management of the estate against the labourers. It may be that the crowd that assembled there numbering about a hundred, might have got indignant over the death of one of their men Kunjan and over the fatal injury sustained by Vasu and might have assaulted the disabled Punjabis until they died. There is no reliable evidence in the case to connect the particular accused who started the fight, with any molestation of Mahammad Shah and Ali Khan after they returned from pursuing P.W. 6. By the time they returned there were probably other persons round Mahammad Shah and Ali Khan beating them to avenge the death of Kunjan and the serious injury caused to Vasu. We, therefore, find that accused 2 to 10, 17 and 22 and the deceased Kunjan and Vasu formed themselves into an unlawful assembly armed with sticks and caused hurt to Mahammad Shah, Ali Khan and P.W. 5. The other accused have not been proved to have been members of the said assembly.

18. Mahammad Shah has fifteen injuries in all of which five were stripe marks on the back and the others were contused wounds above the neck and on the head. The skull was fractured at three places. Ali Khan had 23 injuries of which nine were stripe marks on the neck and the leg. The others were contused wounds above the neck and the skull was fractured in three places. P.W. 6 bad fifteen injuries of which five were stripe marks, The other injuries were mostly contused wounds above the neck and there were two incised wounds on the band. If P.W. 5 had not run away from the scene at the junction near the market place where there was a crowd of men, he would also have been beaten to death. So far as P.W. IE ia concerned, we are certain that the injuries on him were caused by accused 2 to 10, 17, 22 and the deceased Kunjan and Yasu in furtherance of their common object to give him a severe beating. As against Mahammad Shah and Ali Khan also these persons had no other object. The prose, cution baa not by reliable evidence proved that any one of accused 2 to 10, 17 and 22 had taken part in attacking Mahammad Shah and Ali Khan subsequent to their leaving him in a disabled condition at the scene of occurrence. These accused are liable only for the first attack on Mahammad Shah and Ali Khan and for all the injuries caused on P.W. 5.

19. The defence examined one witness to prove the defence version that the trouble was started by the Punjabis and that they were the aggressors and that the accused acted if at all in defending the person of Kunjan and Vasu who met with their death at the hands of the Punjabis. We do not think that the witness is a reliable person and could be believed. The same version was put forward in his. ah and AJ the first information reports given by Vasu and accused l and it was stated to have been given under the directions of accused 2. We have no doubt considering all the circumstances brought out in evidence that accused 2 to 10, 17 and 22, Kunjan and Vasu were the aggressors and that they behaved rather brutally in beating the Punjabis till they were disabled and had fallen on the road.

20. As a result of the foregoing discussion we confirm the conviction and sentence against accused 2 to 10, 17 and 22 for the offence of rioting armed with sticks which, used as weapons of offence, were likely to cause death, Under Section 140, Travancore Penal Code. The convictions and sentences Under Sections 301 and 307, Penal code against these accused are hereby set aside. They are, however, convicted of the offence of causing hurt to Mahammad Shah, Ali Khan and p.w,5, Under Section 824, Travancore Penal Code, and each of them is sentenced to undergo rigorous imprisonment for three years. The sentences will run concurrently. The criminal appeals (Criminal Appeals Nos 5 to 13/H24,19 and 24) filed by these accused are allowed only to this extent, The charges against the other accused 11, 13 to 16 and 18 to 21 have not been proved and the Criminal appeals (Criminal Appeals Nos. Under Section 1124, 16 to 18/1124, 20 to 28/1124) filed by them are al-lowed. They are accordingly acquitted of the offences with which they were charged. Their bail bonds are cancelled and they are set at liberty forthwith. Referred Trial no. 7 of H24 is disposed of accordingly,

21. The appeal filed by the Sirkar against the acquittal of accused l and 12 cannot be sustained in view of our conclusions on the evidence in the cage. There is no evidence against accused l and 12 which can be relied on. Criminal Appeal nos. 52 and S3 are, therefore, dismissed.

22. Criminal Revision Petition No. 166 of 1124 is filed by P.W. 3 against the acquittal of the accused in Sessions case no. 40 of 1123 which was tried as a counter-case to the present case. P.W. s in this case was the accused there and he was acquitted on the ground that if ha caused injuries to Kunjan, Yasu, accused 2 and accused 17 he did so to defend himself when he had reason to apprehend that he will be done to death otherwise. Consistent with our finding in this case that Kunjan, Yasu and others had been the aggressors and had attacked him with sticks, we hold that P.W. 5 was completely justified in using bis knife against his aggressors in self-defence. There are no grounds to interfere with the judgment of acquittal and we dismiss the revision petition,


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