IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 539 of 2002() -------------------------------- SC.492/2001 of SESSIONS COURT, THRISSUR .................... APPELLANT(S): ACCUSED: ----------------------- UNNIKRISHNAN, S/O. KALAPARAMBATH PANKAJAKSHAN, KIZHAKKUMPATTUKARA DESOM, CHEMBUKKAVU VILLAGE. BY ADVS. MR.P.K.IBRAHIM MR.D.B.BINU SMT.K.A.ANGEL TREENA SMT.K.P.AMBIKA RESPONDENT(S): COMPLAINANT: ----------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.539 OF 2002 ------------------------------ Dated this the 21st day of May, 2009 JUDGMENT This appeal is preferred against the conviction and sentence passed by the Sessions Judge, Trichur in S.C.No.492/2001. The appellant was charge sheeted by the police under Sections 448,323,354 and 325 of the I.P.C as well as under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. After the trial, the trial court found the accused guilty under Sections 325 of the I.P.C and 323 and 448 of the I.P.C and sentenced him to undergo imprisonment for three months under Section 325 and to pay a fine of Rs.1,000/= and also directed to pay a sum of Rs.500/= each under Sections 323 and 448 of the I.P.C and in default, S.I for a period of 15 days. It is against that decision, the appellant has come up in appeal. The complainant in this case is a Superintending Engineer of the PWD and the injured are himself and his wife. The accused is a contractor. It is the case of the prosecution that on 18.3.1997 at about 8 p.m the accused entered into the compound of the defacto complainant and rung the bell Crl.A.NO.539/02 2 and when the defacto complainant came out, the accused removed his spectacles and fisted him. On hearing the hue and cry of him, when his wife namely Sarasu (PW4) came, she was also fisted by the accused which resulted in fracture of the nasal bone of her and both had undergone treatment. In the trial court, PWs 1 to 6 were examined and Exts.P1 to P6 and Exts.D1 and D1(a) were marked. The trial court excluded the accused from the charge under Section 354 as well as under the provisions of the Atrocities Act. 2. The learned counsel for the appellant would submit that the evidence available in the case is not proper enough to end in a conviction and therefore, prayed for interference at the hands of this Court. At the outset, I may like to point out some incident which had admittedly taken place in the premises of the house of the Superintending Engineer. It is the case of the Superintending Engineer (PW3) that the accused rung the bell and the moment door was opened, the accused removed PW3's spectacles and he was fisted and when the wife came to his rescue, she was also fisted which resulted in the case. On the contra, the accused would Crl.A.NO.539/02 3 submit that annoyed with the complaint which he made against the subordinates of PW3, PW3 pushed him outside the house and at that time when the wife came to separate PW3, PW3 pushed her and that resulted injuries to her. So, which is the probable version is the short question that arises for determination. It has been pointed out that PW3, when he made First Information Statement, did not allege anything regarding the injury sustained by the wife. But it can be seen from Exts.P1 and P2 that both the husband and wife went to the very same hospital and they were examined by the doctors even before the First Information Statement was recorded by the police. In the anxiety, PW3 had stated about his injury whereas PW4, the wife had clearly stated that she had been given a blow by the accused which had resulted in her nasal injury. So, even before the recording of the First Information Statement, materials had been supplied before the hospital authorities regarding the injury sustained and the complaint which they made. So, mere non- mentioning of the injury to the wife by PW3 in the F.I. Statement, cannot militate against the case of the Crl.A.NO.539/02 4 prosecution. The learned Sessions Judge had also considered the probability of the case that had been raised by the accused. The learned Sessions Judge in Para-4 of the judgment deals with the same. “If PW3 had pushed her away on catching him and she had fallen down on account of the push made by him, she would not have fallen down in a serpentine position, but only in a prone position. Force would have been applied only from the front towards back and not from the back towards front. Certain injury would never be caused if she had fallen back to her and touching the back on the ground”. 3. The injury sustained to PW4 is a nasal bone fracture and it can be only on account of an action that had taken place in front of her. Either she would have been hit on the nose or she should have fallen with the nose touching the ground. Since no case is there regarding the fall with the nose touching the ground, the other sure possibility is hit on the nose by a person. 4. Now the next question is who would have been the aggressor. One has to bear in mind that the present Crl.A.NO.539/02 5 appellant had gone to the house of PWs 3 and 4 and he would not have gone there without any purpose. When one is holding the position of Superintending Engineer and just because a complaint is made about his subordinates, I do not feel such an experienced officer would get agitated so as to start a criminal action against the person who had come especially when they had a previous acquaintance. So, analysis of the materials available with the factual circumstance would only indicate that it was the accused who had gone to the house of the complainant and it is he who had started the action. I feel, the learned Sessions Judge was perfectly justified in arriving at a decision that the accused had committed the offences under Sections 325, 323 and 448 of the IPC. I do not find any ground to interfere with the finding of guilty by the Sessions Court. 5. Now the question of sentence under Section 325 of the Indian Penal Code, imprisonment is mandatory with fine. Under the other provisions namely Sections 323 and 448, it can be imprisonment or fine. It is only on account of some departmental animosity against the complainant, things Crl.A.NO.539/02 6 should have taken place. Therefore, I am inclined to reduce the quantum of sentence to 15 days instead of three months with retention of fine of Rs.1,000/= as well as a fine of Rs.500/= each under Sections 323 and 448 of the IPC. 6. In the result, finding of the guilty is confirmed. But sentence is modified, whereby the accused namely, the appellant herein is directed to undergo S.I for a period of 15 days and pay a fine of Rs.1,000/= under Section 325 of the IPC and to pay fine of Rs.500/= each under Sections 323 and 448 of the IPC and in default of payment of fine to undergo default sentence for a further period of 15 days. If he had been in remand for any period, he is entitled to get set off. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE cl Crl.A.NO.539/02 7