of Kerala Vs.
Nazar  Insc 716 (24 November 2004)
B.P. SINGH & ARUN KUMAR ( With appln(s) for stay ) WITH Crl.Appeal No. 1044 of 1999
(With Appln.(s) for exemption from filing c/c of the impugned Judgment) Date: 24/11/2004 These Appeals were called on for hearing today.
HON'BLE MR. JUSTICE B.P. SINGH HON'BLE MR. JUSTICE ARUN KUMAR For
Appellant(s) Mr. Ramesh Babu M.R.,Adv.
Mr. Ranbir Singh Yadav,Adv.
For Respondent(s) Mr. Sanjay Parikh,Adv.
In Crl.A1043/99 Mr. K.Rajeev, Adv.
UPON hearing counsel the Court made the following O R D E R The appeals are
dismissed in terms of the signed judgment placed on the file.
(Sheetal Dhingra) (Asha Joshi) Court Master Court Master [Signed judgment is
placed on the file] IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL Nos.1043 OF 1999 STATE OF KERALA Appellant (s)
VERSUS NAZAR Respondent(s) WITH CRIMINAL APPEAL NO.1044/1999
Criminal Appeal No.1043/99 has been preferred by the State of Kerala while
Criminal Appeal No.1044/99 has been preferred by YesuDas @ Tommy, who was
accused No.1 in the trial. Both the appeals are directed against the common
judgment and order of the High Court of Kerala at Ernakulam dated 22.7.1998
whereby the High Court disposed of several appeals preferred by different
accused including appeal filed by YesuDas @ Tommy, the appellant in Criminal
Appeal No.1044/99. It appears that during the pendecy of the appeal before this
Court, appeallant YesuDas @ Tommy was released on parole but he committed
suicide. The appeal preferred by him, therefore, abates. The appeal preferred
by the State of Kerala was originally preferred against A2, A3, A5 and A7. This
Court granted special leave only against A2 and dismissed the special leave
petition as against A3, A5 and A7. We may only notice at this stage that 13
accused had been put up for trial before the court of sessions, Alappuzha in
Sessions Case No.39/96. The trial court by its judgment and order dated
11.12.1997 convicted A1 of the offence under Section 302 IPC and sentenced him
to death. A2, A3, A5 and A7 were convicted of the offence punishable under
Sections 302 read with Section 149 IPC and sentenced to imprisonment for life.
They were also found guilty of some other minor offences. On appeal, the High
Court declined the death reference but finding A1 YesuDas @ Tommy guilty of the
offence punishable under Section 302 IPC sentenced him to imprisonment for
life. So far as A2, A3, A5 and A7 are concerned, it found that there was no
evidence to prove that there was an unlawful assembly, and, therefore,
acquitted them of all the charges levelled against them.
As noticed above, the appeal preferred by YesuDas @ Tommy has abated and the
appeal of the State of Kerala is confined only against A-2 Nazar.
We have gone through the judgments of the courts below. The learned counsel
for the parties have brought to our notice the relevant evidence on record. We
are satisfied that the High Court has correctly recorded the finding, that Section
149 has no application in this case.
The facts clearly disclose that the accused did not act pursuant to a common
unlawful object, because there was in fact, no unlawful assembly. Each one of
the accused was acting on his own and, therefore, could be held guilty only for
his individual act.
So far as the allegations against A2 are concerned, he is alleged to have
injured PWS 1 and 2. PW2 has turned hostile and did not support the case of the
So far as PW1 is concerned, there was a simple injury on his back of a very
insignificant nature. PW1 is also the first informant, but while lodging the
first information report, he had stated that he had suffered a scratch on his
back at the hands of some unknown persons. In his deposition, he admitted that
he knew A2 from before. It was found that he had not named A2 as his assailant
nor had he named him at all in the first information report. The High Court
taking all these facts and circumstances came to the conclusion that the
prosecution had not make out a case against A2 and the other accused persons,
who were appellants before the High Court. We find that the conclusion reached
by the High Court is based on the evidence on record and we find no error in
the appreciation of the evidence by the High Court. The High Court has taken a
view which could reasonably be taken on the basis of the evidence on record.
The conclusion reached by the High Court appears to be reasonable. In such
circumstances, it would not be proper for this Court to interfere with the
order of acquittal recorded by the High Court. Even if another view may be
possible, the order of acquittal must be sustained, if the finding of the High
Court is a finding based on the evidence on record and is a possible reasonable
view of the evidence.
We, therefore, dismiss Criminal Appeal No.1044/99 as having abated and
Criminal Appeal No.1043/99 preferred by the State of Kerala as devoid of merit.