IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 Crl.Rev.Pet.No. 349 of 1999() ----------------------------- CRA.16/1996 of ADDL. SESSIONS COURT, ALAPPUZHA CC.47/1993 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI .................... REVISION PETITIONER(S)/APPELLANT/ACCUSED: --------------------- SOMARAJAN, ERUPATHIL CHIRA VEEDU, KUNNAMKARY, VELIYANADU, ALAPPUZHA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.M.SUNILKUMAR RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No.349 of 1999 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 3rd day of October, 2008 O R D E R -------------- Revision petitioner faced trail in the court of learned Judicial First Class Magistrate, Ramankaray in C.C. No.47 of 1993 for offences punishable under Section 324 and 326 of the Indian Penal Code (for short, the “Code”), was found guilty under Section 326 of the Code, convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/-. Appeal preferred by him was dismissed. Hence this revision. 2. Heard. Perused the records. 3. It is submitted by the learned counsel for revision petitioner that the courts below were not justified acting upon the solitary evidence of P.W.4, injured in the light of the defence version and the evidence of D.Ws.1 and 2 corroborated by the circumstances proved in the case. Learned Public Prosecutor submitted that the evidence of P.W.4 is sufficient in the case to warrant a conviction. 4. Case is that on 12.5.1992 at about 9.00 p.m. revision petitioner voluntarily caused hurt/grievous hurt to P.W.4, Manager of a toddy shop by cutting with M.O.1. The incident is alleged to have occurred in the shed near that toddy shop. P.Ws.1 to 3 did not CR. R.P. No.349 of 1999 -: 2 :- support the prosecution. P.W.4 stated that on the relevant day, time and place revision petitioner inflicted injuries on him with chopper. P.W.6 prepared the mahazar for scene of occurrence (Exhibit P4) on 14.5.1992. He searched the house of the revision petitioner on 14.5.1992 and seized M.O.1, chopper. P.W.7 examined P.W.4 on 12.5.1992 and issued Exhibit P9, wound certificate. It is seen from Exhibit P9 that P.W.4 has sustained 9 incised wounds. He came with the history that toddy tapper Somarajan inflicted cut injuries on him at the toddy shop at 10 p.m. P.W.7 opined that the injury could be caused as alleged. P.Ws.8 and 9 conducted investigation. 5. On the defence side, D.Ws.1 and 2 were examined. D.W.1 is the salesman of the toddy shop where the alleged incident occurred. His version is that the toddy tappers attached to that shop were on strike during the relevant time and on the day of the incident at about 10.00 p.m., 8-9 persons came to the toddy shop and abused P.W.4. P.W.4 went out and the persons who had gathered there attacked P.W.4. On hearing the hue and cry himself and others came to the place. There was no light. They asked P.W.4 what had happened but P.W.4 was not able to identify the assailants. D.W.2 also gave similar evidence. Courts below were not impressed by the evidence of D.Ws.1 and 2 and accepting the evidence of P.W.4 found CR. R.P. No.349 of 1999 -: 3 :- revision petitioner guilty. According to the counsel for revision petitioner, the broad aspects of the case were not taken into account by the courts below. 6. It is admitted by P.W.4 also that there was strike by the toddy tappers on a dispute over payment of provident fund contribution. According to P.W.4, that dispute was settled by the evening of the day of incident. His case is that on the day of incident he had been to attend a funeral and on the way he lost Rs.2,000/- from him which was picked up by the revision petitioner but the latter refused to return it. Some of the employees compelled revision petitioner to return it. That, according to P.W.4 was the motive for attacking. 7. None of P.Ws.1 to 3 supported the prosecution and what remained is only the evidence of P.W.4. It is true that the solitary evidence of injured is sufficient to warrant a conviction but only when that evidence is acceptable. Though in Exhibit P1, P.W.4 stated that revision petitioner when entered the shed where the incident occurred, threw away the burning kerosene lamp and inflicted injuries on him with chopper, in the evidence he stated that there was a burning petrolmax hanging on the roof of the shed. He admitted having told the police in Exhibit P1 that revision petitioner threw away the CR. R.P. No.349 of 1999 -: 4 :- burning kerosene lamp. But he had not stated in Exhibit P1 that the petrolmax was burning in the shed. According to the learned counsel if a burning pertrolmax was hanging in the shed there was no necessity at all for the revision petitioner to throw away the burning kerosene lamp. P.W.6 who inspected the scene of occurrence the next day could not see any hook on the roof of the shed to hang a petrolmax (as claimed by P.W.4). Existence of a burning petrolmax in the shed was not disclosed to the police at the earliest of point of time. On the other hand, D.Ws.1 and 2 stated that there was no light at the place of occurrence. Even if the evidence of D.W.2 who is not attached to the toddy shop is kept aside, the presence of D.W.1 who was a salesman in that toddy shop during that time, at the place of occurrence cannot be ruled out. Thus, there is weight in the contention of the revision petitioner that a petrolmax at the place and time of incident was introduced in the evidence. 8. Exhibit P9 shows that P.W.4 sustained as many as 9 incised wounds, some of which even affected the bones. P.W.4 sustained hurt which could be classified as “grievous” under Section 320 of the Code. Interestingly, though P.W.4 claimed that he had fallen down in the shed also and there was much blood flow in the shed where the incident allegedly occurred, P.W.6 who prepared the scene mahazar CR. R.P. No.349 of 1999 -: 5 :- has not reported that there was even a drop of blood in the shed whereas, he noticed blood clot in the courtyard, about 2.46 metres away from the shed. Since inside the shed and in the courtyard sand was spread on the floor, if blood had fallen in the shed, it should have been there on the next day as in the case of courtyard (of course P.W.4 has a case that he had fallen in the courtyard also) while D.W.1, the salesman says that the whole incident was in the courtyard and there was no light there. Since according to P.W.4 the shed was being used to measure the toddy brought by tappers, there was no possibility of customers entering the shed and that destroying the presence of blood in the shed. If blood could be seen in the courtyard the next day, it could have been seen in the shed also, had it been there. Absence of even a drop of blood in the shed really causes doubt regarding the place of incident. On the other hand, presence of blood clot in the courtyard is in conformity to the version of D.W1 that the incident occurred in the courtyard. 9. According to P.W.4, with the same dhothi he was wearing at the time of incident, he was taken to the hospital. He does not know whether it was torn. Police took it at the hospital. But P.W.6 who prepared the scene mahazar claimed to have taken the dhothi, severely torn, from the courtyard. Thus, along with the presence of CR. R.P. No.349 of 1999 -: 6 :- blood in the courtyard and absence of blood in the shed strongly suggest that the incident was not in the shed as claimed by the prosecution and spoken by P.W.4. Was the place of occurrence shifted to the shed to introduce light at the time of incident? 10. Though M.Os.1 and 2 were seized by P.W.6 from the house of the revision petitioner as per Exhibit P6, search list on 14.5.1992, the same were not subjected to chemical examination to ascertain presence of blood stains. There is also no mention in Exhibit P6 that there was blood stains on M.Os. 1 and 2. Failure of the prosecution to send M.Os.1 and 2 for chemical examination was taken note of by the learned magistrate also but in the light of the evidence given by P.W.4, that was not given much importance. But there is another important factor which should be taken along with that failure of the prosecution. Evidence of P.W.7 (doctor) and Exhibit P9 would show that there is difference in the dimention of the injuries. According to P.W.4, all the injuries were inflicted with M.O.1. It was suggested to P.W.7 that the difference in the dimention indicated that different types of weapons were used. P.W.7 did not rule out that possibility. He only stated that it need not necessarily be so. Moreover, it is the version of P.W.7 that the investigating officer had not questioned him with reference to M.O.1. If M.O.1 was the weapon of offence, would the revision CR. R.P. No.349 of 1999 -: 7 :- petitioner keep it in his own house till P.W.6 seized it on 14.5.1992? Whether M.O.1 is the weapon of offence is really doubtful. To hold that M.O.1 is the weapon of offence, one has to bluntly believe the identification made by P.W.4 alone and that too in the backdrop of doubt regarding the presence of light at the time of incident. 11. Courts below observed that the revision petitioner was closely known to P.W.4 and there is no possibility of P.W.4 excluding the involvement of the actual culprits in case he was assaulted by anybody other than the revision petitioner. Courts below also observed that in Exhibit P1 itself, P.W.4 had indicated the revision petitioner as the assailant. 12. Certainly that is one aspect to be considered while considering the acceptability of the evidence of P.W.4. But the possibility of P.W.4 suspecting the involvement of revision petitioner is also there since according to P.W.4, he had a dispute with the revision petitioner concerning the refusal to return of the sum of Rs.2,000/- he lost during the day of the incident. In a case of this nature evidence of D.W.1 cannot be ignored. The possibility of the incident occurring in the courtyard in the manner stated by D.W1 as against the version of prosecution that it was inside the shed cannot be ruled out. Exhibit P4 states that there are houses nearby the place of CR. R.P. No.349 of 1999 -: 8 :- occurrence. P.W.8 who investigated the case would say that none from those houses are witnesses in the case. Viewed in that line I am inclined to think that evidence of P.W.4 without any sort of corroboration is not sufficient to convict the revision petitioner. The possibility of the incident occurring in the manner stated by the revision petitioner cannot be ruled out. Revision petitioner therefore is entitled to the benefit of doubt. Revision petition is allowed. Conviction and sentence imposed on the revision petitioner are set aside and he is acquitted of the charges against him. Bail bond shall stand discharged. Criminal Miscellaneous Petition No.1448 of 1999 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.349 OF 2001 =================== O R D E R 3RD OCTOBER, 2008