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State Of Kerala v. K.J Thomas And Others

Kerala High Court
Aug 25, 1960
Judgment
Subsequent
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Case Information
CITATION CODES
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CASE NO.

Criminal Appeal No. 424 of 1958, from order of Addl. S.J, Kottayam, in S.C No. 60 of 1958

Attorney(S)

V.Narayana Menon

C.J.Antony

K.M.Joseph

Varghese M.Mathew

K.T.Thomas

JUDGES

S. Velu Pillai

T.C Raghavan, JJ.

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Summary of Opinion: Raghavan, J. (Appeal by the State against acquittal — S.C. No. 60 of 1958, Sessions Judge of Kottayam)

Factual and Procedural Background

This is an appeal by the State against the acquittal of 25 accused persons by the Sessions Judge of Kottayam in S.C. No. 60 of 1958. The accused were charged under various provisions of the Indian Penal Code including Sections 147, 341 read with 149, 427 read with 149, 148, and 307 (some accused under specific additional sections). The prosecution alleged that the accused, opposing the Kerala Education Act, conspired with about 50 others to murder the Hon'ble Minister Sri T. A. Majeed and Sri P. T. Punnoose, M.P., on 26 September 1957. The ministers and other witnesses (Pw. 1, Pw. 2, Pw. 11, Pw. 12 and others) were travelling in the car K.L.K 999; the prosecution's narrative describes a crowd blocking the car near the Lincoln Motor Shop at Kanjirapally, attempted attack by several accused (including an alleged attempt to open the car door where the Minister sat), damage to the car and various investigations by police officers (Pw. 10 — Sub-Inspector, Pw. 13 — Circle Inspector, Pw. 9 — Traffic Sub-Inspector). The Sessions Judge acquitted the accused; the State appealed.

Legal Issues Presented

  1. Whether the acquittal of the accused by the Sessions Judge was correct and should be interfered with on appeal.
  2. Whether the prosecution proved the existence of an "unlawful assembly" with a common object to commit offences (relevant to Section 147 and Section 149 IPC) on the evidence led.
  3. Whether the prosecution established that any particular accused had the requisite participation or culpability for the acts charged (damage to the car, attempt to murder, etc.).
  4. Whether material lapses and alleged irregularities in the police investigation (including timing and contents of reports, search proceedings and witness examination) undermined the prosecution's case.

Arguments of the Parties

Prosecution's Case (as presented in the opinion)

  • The 25 accused and others opposed the Kerala Education Act and had a common object which included murdering the Minister (Pw. 11) and Sri P.T. Punnoose (Pw. 12) to upset the Government.
  • The accused and associates waited near the Lincoln Motor Shop at Kanjirapally on 26 September 1957 and followed the Minister's car (K.L.K 999) in a jeep; a crowd of about 75 blocked the car, some holding black flags and sticks.
  • Accused persons (specifically accused 7 to 11) allegedly rushed with daggers and tried to open the car door where the Minister was seated; accused 1 allegedly shouted "kill him".
  • Police (Pw. 10) reached the scene shortly after the occurrence; a mahazar (Ext. P-1) and first information report (Ext. P-4 naming accused 1–13) and a subsequent report (Ext. P-5 naming accused 14–25) were prepared and sent to the Magistrate. Pw. 13 later investigated, conducted house searches and filed the charge sheet.

Defence's Contentions

  • The defence contended that Pw. 2 and Pw. 12, in consultation with Pw. 2's sister (a lawyer), foisted a false case against the accused. Some of the accused had lawfully attended a black-flag demonstration and the Sub-Inspector (Pw. 10) colluded in fabricating charges.
  • The defence challenged the timing and authenticity of Ext. P-5 (which names accused 14–25), pointing out that Ext. P-5 bears a Magistrate's receipt date much later than Ext. P-4, undermining the prosecution's claim that both reports were despatched on the night of the occurrence.
  • The defence argued that the searches conducted by Pw. 13 were suspicious and practically impossible to have been carried out as described (eight searches across different localities within a narrow time window), and that search lists contained repeated and non-local witnesses, raising doubts about their veracity.
  • The defence highlighted the prosecution's omission to examine the driver of the car (a critical witness as to whether and why the car stopped) and emphasised lack of specific evidence attributing any particular damaging act to a particular accused.
  • The defence maintained that the black-flag demonstration was lawful and that there was no common object to commit offences; thus, mere presence in the crowd could not render the accused criminally liable under Section 149 IPC.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court reviewed the facts and focused extensively on the quality and credibility of the police investigation before addressing the substantive merits. The analysis proceeds in distinct strands:

  1. Investigation irregularities and timing discrepancies:
    • The occurrence happened on 26 September 1957; Pw. 10 (Sub-Inspector) reached the scene shortly after and prepared documents. Ext. P-4 (FIR naming accused 1–13) and Ext. P-5 (report naming accused 14–25) are said by the prosecution to have been despatched on the night of the occurrence.
    • However, Ext. P-4 appears to have been received by the Magistrate on 28 September (initialled that day), whereas Ext. P-5 bears the Magistrate's initial and a date of 8 October. The court found it inexplicable why Ext. P-5 would be received ten or eleven days later if it had been despatched the same night as Ext. P-4.
    • The court accepted the defence contention that this discrepancy casts serious doubt on the prosecution's account and suggests that Ext. P-5 may have been prepared and despatched later (and possibly fabricated or otherwise unreliable).
  2. Reliability of search proceedings:
    • Pw. 13 (Circle Inspector) is said to have taken up the investigation on the evening of 27 September and to have conducted eight searches on 28 September. Pw. 10 stated that he and Pw. 13 were together much of the 28th, making it implausible that Pw. 13 personally conducted all searches between 7:30 and 9:30 a.m.
    • The court found it improbable that eight house searches across different localities could have been conducted within that short window. The presence of identical witnesses across multiple search lists (including witnesses not resident in the relevant localities) further heightened suspicion.
    • The court inferred that Ext. P-5 and the search lists were likely assembled and sent together and not on the dates the prosecution asserted, undermining their reliability.
  3. Evidentiary gaps and omissions:
    • The prosecution failed to examine the driver of the car — a key witness who could have explained why the car stopped and whether the crowd actually blocked it. The court regarded this omission as unexplained and significant.
    • The documents describing damage to the car (Ext. P-1, the mahazar, and Ext. P-3, the condition certificate) were found not to be conclusive as to the nature or extent of damage. Even if damage were accepted, the evidence did not permit attribution of that damage to any particular accused person.
  4. Inference on unlawful assembly and common object:
    • The court considered whether the crowd constituted an "unlawful assembly" with a common object to commit offences. It concluded the evidence was neither sufficient nor satisfactory to establish an unlawful assembly or a common object to commit illegal acts.
    • The court accepted that the crowd's purpose could have been to demonstrate with black flags — an act that, by itself, is lawful — and found no reliable evidence of a shared criminal intention among the crowd to commit offences.
    • Accordingly, even if one person in the crowd committed an illegal act, that single act could not, without evidence of a common object, render all present criminally liable under Section 149 IPC.
  5. Overall assessment:
    • Considering the suspicious timing and content of Ext. P-5 and the search lists, the implausibility and inadequacy of the searches, the omission to examine critical witnesses (driver), and the absence of specific evidence linking individual accused to specific acts, the court found the prosecution case thoroughly unsatisfactory in material respects.
    • The court agreed with the Sessions Judge that the prosecution had not discharged the burden of proving the offences beyond reasonable doubt and that significant lacunae in investigation further compromised the prosecution's case.

Holding and Implications

Holding: The court affirmed the decision of the Sessions Judge and dismissed the State's appeal. The core ruling is:

DISMISSED — the appeal fails and is dismissed.

Implications:

  • The acquittal of the accused by the Sessions Judge is upheld; the prosecution's appeal against that acquittal is dismissed.
  • The immediate legal consequence is that no conviction follows from this appeal; the accused remain acquitted on the charges as considered by the Sessions Judge and this appellate court.
  • The opinion notes no establishment of a new legal principle or precedent; the decision rests on the particular evidentiary facts and perceived investigative deficiencies in this case rather than on an alteration or creation of law.

(Order reported in the opinion: "There are the appeal fails and is dismissed." / "Appeal dismissed.")

Show all summary ...

Raghavan, J.:— This is an appeal by the State against the acquittal of the accused by the learned Sessions Judge of Kottayam in S.C No. 60 of 1958 on his file. There were 2-5 accused persons in the case and all of them were charged under Secs. 147, 341 or 341 read with 149 and 427 and 427 read with 149, I.P.C Accused persons 2, 4, 7 to 11, 13, 18 and 19 were also charged under Sec. 148, I.P.C Accused persons 7 to 11 were further charged for an offence under Sec. 307 I.P.C All the 25 accused persons were further charged with an offence under Sec. 307 read with Sec. 149, I.P.C

2. The prosecution case is that the 25 accused person and others were against the passing of the Kerala Education Act and they wanted to murder the Hon'ble Minister Sri T.A Majeed and Sri P.T Punnoose, M.P, and thereby upset the Government. With thus common object the accused persons with about 50 others waited near the Lincoln Motor Shop at Kanjirapally on the 26th of September, 1957. The Minister had a programme that day to go to Koratty through Kanjirapally for opening a bridge. The Minister, who is Pw. 11 in the case, reached Kanjirapally Travellers' Bungalow at about 12-30 p.m on that day. Pw. 12. Sri P.T Punnoose, and his brother-in-law, Pw. 2, went to the Travellers' Bungalow a little after the arrival of the Minister to invite him for lunch at the residence of Pw. 2. They went to the Travellers' Bungalow in a car, K.L.K 999, and took the Minister in the case along with Pw. 1, who was found waiting on abverandah of the Travellers' Bungalow. The about said four persons proceeded in the car to the house of Pw. 2 Pw. 1 was sitting in the front seat of the car beside the driver and the others were in that back seat. Pw. 11, the Minister, was on the right hand side of the back seat. When the car reached the gate of the Travellers' Bungalow, the inmates of the car saw a jeep waiting on the road. The prosecution case is that the 5th accused was in the jeep and the jeep followed the car, in with the Minister and the others were travelling. On the way the jeep tried to overtake the car. But Pw. 2 instructed the driver not to allow the, jeep to overtake them. The car came near the Lincoln Motor Shop, when the inmates of the car saw a crowd of people about 75 strong standing in either side of the road. Some of them had black flags in their hands and others had sticks. At that time Pw. 1 looked back and saw the 5th accused standing in the jeep and showing signs to the ??? waiting there indicating that the persons, a whom they were waiting, were in the car. The crowd on the road stopped the car and some of them hit with sticks on the lop and bonnet of the car and they also shouted slogans against the government.

3. The 1st accused is alleged to have shouted “kill him”, on which accused persons 7 to 11 rushed, with daggers in hand, to the right side of the car where the Minister was sitting and tried to open the door of the car. At this juncture Pw. 2 directed the driver to proceed and the driver raised the engine of the car, when the crowd standing in front of the car dispersed and allowed the car to proceed. Thereafter the car proceeded to the residence of Pw. 2. Mrs. Rosamma Punnoose, wife of Pw. 12, was also at the residence of Pw. 2

4. After lunch by about 3-45 p.m in the evening Pw. 11 and Mrs. Punnoose proceeded to Koratty in the State car for the function and returned by about 5-30 p.m to Kanjirappally Travellers' Bungalow, Then Pw. 11 went to Kottayam and stayed at the Government House there for the night. Pws. 3 to 6 are alleged to have witnessed this occurrence besides the inmates of the car. Pw. 10, the Sub-Inspector of Police at Kanjirappally was, patrolling the area within his jurisdiction because the Union Minister the Hon'ble Sri Nanda was also passing through Kanjirappally on that day.

5. He heard about this occurrence at Koovappilfy about 6 miles from the scene of occurrence ami straightaway proceeded to the scene. He got the scene mahazar, Ext. P-1, prepared at 2 p.m and also visited;he residence of Pw. 2, where Pws. 1, 2, 11 and 12 were at that time. The car was also there then. The Sub-Inspector questioned Pws. 1 and 2 there and Pws. 11 and 12 later. Pw. 11 was questioned at the Government House at Kottayam. According to the prosecution Pw. 10 registered a case and prepared the F.I.R, Ext. P-4, at 6-30 p.m on the same day. Ext. P-4 contained only the names of accused persons 1 to 13.

6. On the same day Pw. 10 sent another report, Ext. P-5, showing the names of accused persons 14 to 25 and seeking to include them also in the array of accused persons in the case. Pw. 9, the Traffic Sub-Inspector of Kottayam, as directed by the D.S.P, inspected the car, K.L.K 999, on 30th September, 1957, when the car was in Raman's Workshop at Kottayam. He issued a certificate, Ext. P-3, showing the damage to the car. Pw. 13, the Circle Inspector of Kanjirappally was informed about the incident at 5 p.m on 27th September, 1957. He verified, the investigation of Pw. 10 and questioned Pws. 3 to 6. He completed the investigation and filed the charge sheet in the case on 15th October, 1957.

7. (After indicating the versions of the accused his Lordships proceeded).

8. Before we enter into a discussion regarding the merits of the case we would consider some glaring laches in, and the unsatisfactory nature of, the investigation of the case by the Police. The occurrence is alleged to have taken place at about 1 or 1-30 p.m on the 26th of September, 1957. Within a short time the Sub-Inspector of Police, Pw. 10, reached the place and he went to the residence of Pw. 2. At that time Pws. 1, 2, 11 and 12 were there and the car alleged to have be in damaged was also there. Pw. 10 seems to have questioned only Pws. 1 and 2 and he says that he directed the head constable to prepare a mahazar regarding the damage to the car.

9. The mahazar prepared by the head constable is Ext. P-1. Pw. 12 was questioned by Pw. 10 later in the evening and Pw. 11 was questioned only in the night, while he was at the Government House at Kottayam. Ext. P-4, the first information report, was despatched to the Magistrate that night itself by Pw. 10. This document contains only the names of accused persons 1 to 13. Ext. P-5 is another report which also was sent by Pw. 10 the same night and this contains the names of accused persons 14 to 25.

10. According to Pw. 10, at the time of the preparation of Ext. P-4, the names of accused persons 1 to 13 alone were known to him and since he happened to ascertain the names of the other accused persons only subsequently, he prepared and sent Ext. P-5. One important thing that has to be noted in this connection is that Ext. P-4 seems to have been received by the Magistrate on the 28th of September, because it is initialled by him on that day, whereas Ext. P-5 bears the initial of the Magistrate and the date 8th of October, which indicate that document was received by the Magistrate only on the latter date.

11. The prosecution case is, we have already stated, that Exts. P-4 and P-5 were despatched on the night of the day of occurrence, i.e, 26th September, 1957. It is inexplicable as to how and why, if the prosecution version regarding the preparation and despatch of Ext. P-5 is correct, this document happened to be received by the Magistrate ten or eleven days after the receipt of Ext. P-4. The contention of the defence, in the lower court as well as here is that Pws. 2 and 12, who are brothers-in-law, the latter being the husband of the sister of the former, in consultation with the said sister, who is a lawyer, foisted this false case against the accused, some of whom, were present at the scene of occurrence in connection with a black flag demonstration against the Minister, which was quite a lawful purpose and the Sub-Inspector, Pw. 10, also helped them in so foisting the false case.

12. According to the defence the first information report, Ext. P-4, itself was prepared several hours after Pw. 10 got the information and Ext. P-5 must have been despatched, not on the 26th of September, but on a subsequent date. There is considerable force in this argument because no explanation is forthcoming from the prosecution as to how Ext. P-5 happened to bear the date of receipt by the Magistrate as 8th of October, 1957. The learned Sessions Judge points out another circumstance also which adds strength to the defence contention. Pw. 11 did not know the names of any of the accused persons and Pw. 12 knew the names of only 4 or 5 of them, so that Pw. 10 must have ascertained the names of all the accused from Pws. 1 and 2.

13. According to Pw. 1.0, Pws. 1 and 2 were questioned by him before the preparation of the first information report, Ext. P-4. If that be so, Ext. Pw. 4 should have contained all the names of the accused and it is beyond one's comprehension why Ext. P-5 was prepared at all. There is one more circumstance, which adds to the suspicious nature of Ext. P-5. Pw. 13, the Circle Inspector of Police, who took up investigation of the case on 27th September, conducted searches of 8 houses on the 28th of September, and he sent search-lists regarding these searches to the Magistrate. These lists were also received by the Magistrate on 8th of October.

14. The irresistible conclusion from this is that Ext. P-5 and the search lists must have been sent together and that they could not have been sent earlier than the 28th of September, on which date the searches were made. In the above circumstances the learned Sessions Judge was only right in hesitating to accept the prosecution case. We are inclined even to observe that the non-mention of the names of accused persons 14 to 25 in the first information report and the suspicious nature of Ext. P-5 are by themselves sufficient for those accused persons to claim an acquittal.

15. Now that we are on this question regarding the unsatisfactory and suspicious nature of the investigation, we would further observe that the searches Conducted by Pw. 13 are also not beyond suspicion. Pw. 13 took up the investigation of the case on the evening of the 27th of September, 1957. According to Pw. 10, Pw. 13 and himself were together for the whole day on the 28th of September from 10 or 11 in the morning and no searches were made by Pw. 13 during this time. So that Pw. 13 had to depose that all the searches were made by him between 7-30 and 9-30 a.m on 28th September.

16. As stated already, 8 houses were searched, the houses being not in the same locality, but situated in different localities. The learned Advocate of the accused points out that it was not possible for Pw. 13 to have conducted these eight searches within two hours and this contention appears to have considerable force. He invites our attention to another fact, that three witnesses in all the search lists are the same and that the 4th witness is common in six of the search lists. It is also pointed out by him that these witnesses are not persons living in the localities, where the searches were conducted.

17. Now we come to the merits of the case. (His Lordship considered the merits and continued.)

18. Now we would consider one or two circumstances in the case which have been adverted to by the learned Sessions Judge for not believing the prosecution case. One is the failure of the prosecution to examine the driver of the car. He is the person most competent to speak as to why the are was stopped and as to whether anybody in the crowd stopped the car. No explanation for the omission to examine this witness is forthcoming from the prosecution.

19. Another circumstance is that there is no conclusive evidence as to the nature of the damage caused to the car. Ext. P-1, the mahazar prepared by the head constable, and Ext. P-3, the condition certificate of the car prepared by Pw. 9, do not rally regarding the damage to the car. Further, even if we hold that there was damage caused to he car, it is not possible in the circumstances of he case, to hold as to which of the accused per on actually hit on the car. In the absence of such specific evidence it is not possible to hold that any accused person was responsible for the damage caused to the car.

20. We would, in conclusion make one observation regarding the charge under Sec. 147 I.P.C

21. The evidence is neither sufficient nor satistacory to hold that there was an unlawful assembly. As we have by this time indicated, we are inclined believe that the purpose of the crowd was only demonstrate with black flags and this was not an ??? purpose. Therefore there is complete ??? of evidence to show that there was a common object to commit any offence or illegal act by the ??? and in the absence of such common object any act, even if committed by one of the crowd, could not make the others liable. It is also not ??? to hold, in the state of the evidence in the ??? case, that any particular accused person was responsible for any particular act.

22. In the above circumstances we have no hesitation in holding that the order of acquittal passed by the learned Sessions Judge is correct.

23. There are the appeal fails and is dismissed.

???/R.G.D

24. Appeal dismissed.

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