9911796707
TMI Blog1998 (5) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... They assail the validity of the judgment of June 8, 1989 passed by a Division Bench of Kerala High Court in Criminal Appeal No. 87 of 1986 setting aside their acquittal by the trial court and convicting and sentencing them as follows: under Section 302 read with Section 34, I.P.C.- imprisonment for life; under Section 307 read with Section 34, I.P.C. - rigorous imprisonment for seven years and Section 3 of the Explosive substances Act, 1908 - imprisonment for five years. All the sentences were directed to run concurrently. In this case Trade Union rivalry between INTUC and CITU on the one hand and BMS on the other culminated into the atrocious incident of April 21, 1983 in which one Thanukuttan @ Nanukuttan died and three persons PW-1, PW-2, and PW-4, suffered injuries. In respect of this incident the police filed charge-sheet against the appellants and twenty other persons of whom A-13 dies and the remaining were tried on the following facts for offences under Sections 120B, 143, 147, 148, 149, 324, 307, 302 and 109 of the I.P.C. and Section 3 of the Explosive Substances Act, 1908. The headload-workers employed in the industrial Estate of Pappanamcode are members of either INTUC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record, the trial court acquitted all the twenty two accused by its judgment dated February 22, 1985. The State appealed against that judgement and confined its submissions to accused A-1 to A-3. The High Court having considered the evidence on record found A-1 to A-3 guilty of various offences, convicted and sentences them as mentioned above. Mr. U.R. Lalit, the learned senior counsel, appearing for the appellants, contended that the eye witnesses PWs 1 to 5 and PW-7 were interested witnesses being the members of the rival union, therefore, their evidence was rightly rejected by the trial court but the High Court did not take into account union rivalry between the two groups and the possibility of the complainant group falsely implicating the accused who belonged to the rival group and thus erred in relying upon their testimony. He argued that throwing of bombs in its very nature is so sudden that it was not possible that the witnesses could have actually seen the same; PWs 8 and 9 who are independent witnesses and came to the scene of occurrence did not say that they had seen any of the accused. persons there. In any event, submits the learned counsel, where two views are poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keepings with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not". We have perused the judgment under appeal to ascertain whether the High court has conformed to the aforementioned principles. We find that the High court has not strictly proceeded in the manner laid down by this court in Doshi's case (supra), viz; first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High court has rendered a well considered judgment duly meeting all the contentions raised before it. But then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the prosecution and against the accused; on point Nos. 4,5, 6,7 and 8 it recorded the finding in the negative, that is, in favour of the accused and against the prosecution. In view of the limited submissions made by the prosecution before the High Court we are not concerned with point Nos. 4,5 and 6; the points which are material for our discussion are point Nos.1 to 3 and 7 and 8. In answering the points noted above, the trial court considered each point in isolation and thus arrived at conclusions which are inconsistent and erroneous. having recorded the finding on point No.1 in the affirmative it held that Nanukuttan had not died a homicidal death at the place alleged by the prosecution. In drawing the above inference the trial court relied upon certain statements made by some of the eye-witnesses. The portions in the case diary statements marked as Exts. D-1 and D-1(a) on which the trial court placed reliance are to the effect that the deceased was sitting at the time of the incident whereas in the evidence given in Court it was stated that he was sleeping. The aforesaid contradictions are hardly material to decide whether he died of a homicidal death at the place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were present there. After hearing the sound of explosion, some persons no doubt came to the scene of occurrence, of whom PWs 8 and 9 have been examined and obviously they have spoken to the facts which they noticed only after the explosion of the bombs. The other witnesses, if any, would have been of no avail to the defence nor were they necessary for purposes of establishing the quilt of the accused. Therefore, union rivalry would not be a ground to brush aside their evidence after having found that the same is consistent and truthful. It is no doubt true that throwing of bomb is a sudden act but the witnesses have clearly stated from which direction the accused came and who among them threw the country-made bombs and who hit with bricks and sticks. It is not a case where the incident took place in wee hour of the night when everybody was sleeping and then they got up after the explosion and would not have been in a position to see the actual throwing of bombs. They were all sitting on the platform and were obviously conscious of what was happening in the surrounding as is evident from their statements. We also find no substance in the issue as to whether the deceased was sitting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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