IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 487 of 2002() 1. AYADATHIL SADANANDAN, S/O. RAMA KURUP, Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY THE Respondent For Petitioner :SRI.P.S.SREEDHARAN PILLAI For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice P.Q.BARKATH ALI Dated :16/10/2009 O R D E R [ENTITY], J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= [CASE NUMBER] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16th day of October, 2009 O R D E R
The revision petitioner is the first accused in [CASE NUMBER] of the Asst. Sessions Court, Kozhikode Division and the appellant in [CASE NUMBER] of the Court of the Addl. District and Sessions Judge, Fast Track Adhoc-II, Kozhikode. He was convicted under [SECTION] [ACT] and sentenced to undergo rigorous imprisonment for a period of five years by the trial court. On appeal, the lower appellate court altered his conviction to [SECTION] [ACT] and modified the sentence to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for three months.
2. The case of the prosecution as shaped in evidence before the lower court was that the revision petitioner, who is the first accused, along with accused 2 to 5 formed themselves into an unlawful assembly armed with deadly weapons on November 27, 1994 at about 10.30 A.M. on the public road at Mangattupara and the revision petitioner stabbed PW1 and CW1 with a knife with an intention to murder them and thereby committed the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT].
3. When accused 1, 2, 3 and 5 entered appearance before the committal court, copies of documents relied on by the prosecution were furnished to them. Accused No.4 absconded. Therefore, the case against him was split up and refiled. As the offence under [SECTION] [ACT] is exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court for trial and disposal. On appearance before the trial court, the accused persons pleaded not guilty to the charge under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT]. PWs.1 to 11 were examined and Exts.P1 to P10 and MOs.1 to 3 were marked on the side of the prosecution before the trial court. When questioned under [SECTION] [ACT], the accused persons denied the incident. No defence evidence was adduced.
4. On an appreciation of the evidence, the trial court found the revision petitioner/first accused guilty of the offence punishable under [SECTION] [ACT], convicted him thereunder and sentenced him as aforesaid. The trial court acquitted accused 2, 3 and 5. On appeal, the lower appellate court altered the conviction imposed against the first accused to [SECTION] [ACT] and modified the sentence as aforesaid. Now the first accused has come up in revision challenging his conviction and sentence.
5. The counsel for the revision petitioner arguing the revision submitted that no test identification parade was conducted in this case and witnesses Pws.1, 3 and 4 identified the first accused for the first time in court and that therefore their, identification could not be accepted without conducting a test identification parade. It is further submitted by the counsel for the revision petitioner that PW6, the Doctor who examined PW1 and CW1 testified that the injuries sustained by them could not have been inflicted by MO1 weapon and that on this ground alone, the revision petitioner should have been acquitted.
6. The Public Prosecutor appearing for the prosecution supported the findings of both the courts below.
7. The following questions arise for consideration:
1. Whether the conviction of the revision petitioner by the lower appellate court under [SECTION] [ACT] can be sustained?
2. Whether the sentence imposed by the lower appellate court is excessive or unduly harsh?
8. PW1, one of the injured, testified in terms of the prosecution case. CW1 [ENTITY], another injured, died about 1 = years after the incident. I have gone through the evidence of PW1. Nothing was brought out during his cross-examination to discredit his evidence. He identified the first accused in court who inflicted the injuries on him. He also identified MO1 as the weapon used by the revision petitioner to stab him. PWs.2 to 4 are the eye witnesses to the incident. PWs.3 and 4 identified the first accused who assaulted PW1 and CW1. I have gone through their evidence. They corroborated each other and PW1 on all material particulars. PW4 is also a witness to the recovery of MO1. The trial court as well as the appellate court discussed the evidence of PWs.1 to 4 in detail and chosen to believe their evidence. I find no reason to disbelieve their evidence. PW5 is a witness to Ext.P2 seizure mahazar regarding the seizure of MO1. PW6 is the doctor who examined PW1 and CW1 and issued the wound certificates. Ext.P3 is the wound certificate of PW1 and Ext.P4 is the wound certificate of CW1. Ext.P3 would show that PW1 sustained very serious injuries in the incident. PW7 is the then Head Constable of Vatakara Police Station who prepared Ext.P5 F.I.R. PW8 is the then Constable who recorded F.I.S. of CW1. PW9 is the then Addl. Sub Inspector of Vatakara Police Station who conducted the investigation. PW11 is the then Circle Inspector of Police Station who verified the investigation conducted by PW9 and laid the charge before the committal court. On an appreciation of the evidence, the trial court found that the first accused inflicted injuries on PW1 and deceased CW1, which was confirmed by the lower appellate court. I find no reason to come to a different conclusion.
9. It is submitted by the counsel for the revision petitioner that since MO1 is a crescent shaped weapon and by cutting with that weapon, it is not possible to cause the injuries described in Exts.P3 and P4 wound certificates. I am unable to agree. MO1 is a sharp edged weapon. PW4 has categorically stated that he has snatched MO1 from the hands of the first accused. PWs.1 to 4 have identified the said weapon. Therefore, I am of the view that the prosecution has succeeded in proving that with MO1 the first accused cut PW1 and CW1 and caused the injuries described in Exts.P3 and P4 wound certificates respectively.
10. The counsel for the revision petitioner arguing the revision petition submitted that PWs.1,3 and 4 have no prior acquaintance with the first accused, that no test identification parade was conducted in this case and therefore, the identification of the first accused by those witnesses in court for the first time cannot be accepted. He relied on a decision in Rajesh V. State of Maharashtra (2000(2) KLT SN 87 (Case No.93 . But the principles laid down in the above decision do not apply to the facts of the present case. In the present case, the incident occurred in broad day light and Pws.1, 3 and 4 have sufficient opportunity to see the first accused. Therefore, identification of the first accused by PWs.1, 3 and 4 in court cannot be doubted. That part, the first accused is previously known to PW4. The Apex Court in [PRECEDENT] held that the identification of the accused in the court without holding test identification parade earlier, and at the relevant point of time does not render the prosecution evidence wholly unreliable. Therefore, merely because the test identification parade was not conducted, the identification of the first accused by PWs.1, 3 and 4 in court cannot be disbelieved.
11. Another argument advanced by the counsel for the revision petitioner was that there is delay in recording the F.I.S. and registering the F.I.R. and also sending the same to the Committal Court, which casts serious doubt regarding the truth of the case of the prosecution. There is no force in the above argument. It is seen form the records that the incident occurred on November 27, 1994 at about 10.30 A.M. PW1 and CW1 were examined by PW6 Doctor at 11.10 A.M., as seen from Exts.P3 and P4 wound certificates. The statement of CW1 was recorded in the next day itself. On that day itself F.I.R. reached the court. Therefore, there is no delay in registering the FI.R. or sending the same to the court.
12. The trial court has relied on the evidence of PWs.1 to 5 and found that it was the the first accused who inflicted the injuries on PW1 and CW1. The lower appellate court has found that the prosecution has failed to prove that the first accused has any intention to murder CW1 and PW1 and therefore, acquitted him of the charge under [SECTION] [ACT], but convicted him under [SECTION] [ACT]. I find no reason to disagree with the above finding of the lower appellate court.
13. As regards the sentence, the trial court has sentenced the revision petitioner to undergo simple imprisonment for five years under [SECTION] [ACT], which is modified by the lower appellate court as rigorous imprisonment for one year and to pay fine of Rs.5,000/- under [SECTION] [ACT]. The incident occurred in 1994 and the revision petitioner/first accsued is aged now more than 50. Taking into consideration all these aspects, I feel that the substantive sentence imposed on the revision petitioner can be reduced to the period already undergone by him i.e, 28-11-1994 to 13-1- 1995. I also feel that a fine of Rs.15, 000/- would meet the ends of justice.
14. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under [SECTION] [ACT] rendered by the lower appellate court is confirmed. Substantive sentence imposed on him is reduced to the period already undergone by him i.e., from 28-11-1994 to 13-1-1995. He is further sentenced to pay fine of Rs.15,000/-, in default to undergo simple imprisonment for three months. The fine amount, if realized, shall be paid to PW1 as compensation as provided under [SECTION] of the [ACT]. Bail bonds of the revision petitioner are cancelled. Two months' time is granted for the payment of the fine amount.
[ENTITY], JUDGE mn [CASE NUMBER] 9 [ENTITY], J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=- =-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 16th day of October, 2009