IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 211 of 2004(B) ------------------------------ CRA.101/2002 of ADDL.SESSIONS COURT, KOTTAYAM SC.23/1997 of ASSISTANT SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/3RD ACCUSED: ------------------------------------------- SHIBU, S/O CHACKO, COMPANAYANALAYIL HOUSE, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.211 OF 2004 --------------------------------------------- Dated 4th August, 2010 O R D E R Petitioner, the third accused in S.C.23/1997 on the file of Assistant Sessions court, Kottayam filed this revision challenging the concurrent conviction and sentence for the offence under Section 324 of Indian Penal Code. Prosecution case was that on 6/9/1995 at about 1.35 p.m, accused were travelling in a jeep along with PW8 and Pws.1 to 3 police constables were travelling in a bus driven by PW4 and at the scene of occurrence, bus and the jeep touched each other causing minor damages to the jeep. Vehicles were stopped. Accused got down and asked for damages from PW4. PW1 police CRRP 211/04 2 constable who was returning along with Pws.2 and 3, other police constables who were all on civil dress, asked the accused why matter cannot be settled by receiving Rs.100/- or Rs.150/-. Infuriated first accused asked to PW1 whether he is the owner and slapped on his cheek. Second accused asked whether he is the owner of the bus and then uttered kill him. Petitioner then stabbed PW1 with MO.1 Malappuram knife and caused injuries. It is alleged that five accused formed themselves into an unlawful assembly with the common object of causing death of PW1 and in furtherance of their common object, petitioner stabbed PW1 with MO.1 knife and voluntarily caused hurt and thereby committed offences under Sections 143, 147, 148, 323 and 307 read with Section 149 of Indian Penal Code. All the accused pleaded not guilty. Prosecution CRRP 211/04 3 examined 14 witnesses and marked 12 exhibits and identified Mos.1 and 2. When accused were called upon to enter on their defence and adduce evidence, DW1 was examined. Exts.D1 and D2 portions of the statement of Pws.2 and 4 recorded under Section 161 of Code of Criminal Procedure by the Investigating Officer were marked on the defence side. 2. Learned Assistant Sessions Judge on the evidence found the accused 1,2,4 and 5 not guilty and acquitted them of all the offences. Learned Assistant Sessions Judge also found not guilty and acquitted all the accused for the offence under Sections 143, 147, 148, 323 and 307 read with Section 149. But accepting evidence of Pws.1 to 4 it was found that petitioner voluntarily caused hurt to PW1 as proved by the evidence of PW14 and Ext.P11 wound certificate and he thereby committed CRRP 211/04 4 offence under Section 324 of Indian Penal Code. He was sentenced to rigorous imprisonment for two years and fine of Rs.2,000/- and in default simple imprisonment for three months. Petitioner challenged the conviction and sentence before Sessions court, Kottayam in Crl.A.101/2002. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for the petitioner argued that evidence was not properly appreciated by the courts below. It was argued that prosecution case is that petitioner stabbed PW1 when second accused asked to kill him and it was after the first CRRP 211/04 5 accused questioned PW1, whether he is the owner of the bus and hit on his cheek and when the learned Sessions Judge already disbelieved the portion of the evidence of Pws.1 to 4 as against the overt acts alleged against accused 1 and 2, their evidence as against the petitioner should not have been relied on. It was argued that in Ext.P1 FI statement, PW1 did not mention the names of any of the accused and it only shows that accused are known by sight and PW2, the other police constable though stated in Ext.D1 portion of the statement recorded under Section 161 of Code of Criminal Procedure that particular accused after naming him did particular overt act, denied that statement when cross examined and when Pws.1 to 3 have no previous acquaintance with the petitioner, their evidence that petitioner stabbed PW1 should not have been accepted. It CRRP 211/04 6 was pointed out that DW1, a resident of the locality who was an eye witness corroborated the defence case that the incident occurred after the dispute between the employees of the bus and passengers of the jeep settled their dispute by paying and accepting Rs.150/- as damages and PW1 taunted petitioner by declaring that they should leave after receiving the amount and thereafter there was a scuffle and in such circumstances, it should have been found that the incident occurred not as alleged by the prosecution but in a scuffle. It was argued that the injury noted by PW14 in Ext.P11 wound certificate could have been caused by falling in a sharp object during a scuffle and in any case, when the defence case is probable conviction is not sustainable. 5. Learned Public Prosecutor pointed out that learned Assistant Sessions Judge and CRRP 211/04 7 learned Sessions Judge appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction based on the factual findings. 6. Fact that PW1 sustained injuries noted in Ext.P11 wound certificate by PW14 the doctor cannot be disputed. Injuries noted in Ext.P11 and spoken to by PW14 are (1)lacerated wound on the left lower chest 2x.5x.5 c.m medially and (2)lacerated wound on the lower upper abdomen 1x.5x.5 c.m medially. In Ext.P11 itself the doctor has recorded that both the injuries are not penetrating. Alleged cause of injury disclosed to PW14 as recorded in Ext.P11 is that injuries were sustained by stabbing at 1.30 p.m on 6/9/1995 at Mannanam. This was disclosed by PW1, the injured. Ext.P1 FI statement was recorded on the same day at 3 p.m. In Ext.P1 FI statement, though PW1 CRRP 211/04 8 narrated the overt acts and alleged that one accused questioned him whether he is the owner of the bus to intervene and thereafter hit on his cheek and another accused asked to kill him and third accused stabbed him with a Malappuram knife continuously twice, he did not give any particulars of the respective accused, so as to fix the identity at a later stage. Evidence of PW1 along with Ext.P1 FI statement establish that he had no previous acquaintance with any of the accused. True, PW1 identified all the accused from the box. PW2, the other police constable also identified all the accused and had spoken the overt act attributed to each of the accused. PW2 also deposed that he had no previous acquaintance with the accused and had not seen the accused earlier to that incident. Though in Ext.D1 portion of his statement recorded under Section CRRP 211/04 9 161 of Code of Criminal Procedure, PW2 had named each of the accused, when Ext.D1 was confronted to him, PW2 denied the factum and stated that he did not name them. PW3 had no case that he had any previous acquaintance with the accused. Though PW1 had deposed that he knew the accused, he also did not depose that he knew each of the accused by name previous to the incident. He did not depose that accused were known to him on the date of the incident and therefore, statement of PW4 that he knew the accused cannot be taken as evidence to the effect that he knew the accused prior to the incident. 7. In the light of these evidence, case spoken to by Pws.1 to 4 is to be appreciated. There is no case for PW1 that subsequent to the recording of Ext.P1 FI statement, all the accused were shown to him and he identified CRRP 211/04 10 each of the accused as the particular accused who inflicted injury or hit on his cheek or uttered that PW1 should be killed. In such circumstances, question is how each of the accused was subsequently fixed by the Investigating Officer. 8. Evidence of PW11, the Investigating Officer does not throw any light on this aspect. At the same time, from Ext.D1 portion of statement of PW2 recorded by PW12, within one hour of recording of Ext.P1 FI statement, as admitted by PW2, Investigating Officer has fixed the role of each of the accused. In such circumstances, even if accused were shown to PW1 later, he could only go in conformity with the case already decided by PW12. This aspect is relevant in view of the peculiar facts and circumstances of the case. Prosecution case is that five accused formed themselves into an CRRP 211/04 11 unlawful assembly and in furtherance of the common object, petitioner stabbed PW1 after second accused asked to kill PW1 and that occurred when first accused questioned PW1 whether he is the owner of the bus and stabbed him. Learned Assistant Sessions Judge has disbelieved the former two parts, namely, what was attributed to accused 1 and 2. If that be so, there cannot be an overt act as alleged by the petitioner, in the absence of the two other acts attributed to the other two accused. Position would have been different, if prosecution case is that when PW1 intervened in the dispute which was not liked by the accused, petitioner stabbed PW1. That is not the case herein. The case is set up is in a sequence. When first two parts of the sequence is disbelieved, third one by itself has no legs to stand. When this aspect is appreciated in CRRP 211/04 12 the peculiar facts and circumstances of the case, it is not safe to rely on the evidence of Pws.1 to 4 to fix the identity of the petitioner as a person who inflicted the injuries sustained by PW1 and noted in Ext.P11 wound certificate. If that be so, in the light of the defence case, which is probable, it cannot be said that prosecution conclusively established that petitioner voluntarily caused hurt to PW1 using MO.1 weapon. In the light of the evidence, it could be probable that when dispute arose between passengers of the jeep and the driver and other employees of the bus, PW1 intervened which was not liked by the passengers of the jeep and there arose a scuffle, in which PW1 sustained injury. On the facts and circumstances of the case, it cannot be conclusively held that petitioner voluntarily caused injury to PW1 with a CRRP 211/04 13 dangerous weapon. He is at least entitled to get benefit of reasonable doubt. In such circumstances, conviction of the petitioner is not sustainable. Revision is allowed. Conviction of the petitioner for the offence under Section 324 of Indian Penal Code in S.C.23/1997 by Assistant Sessions Judge, Kottayam, as confirmed in Crl.A.101/2002 by Additional Sessions Judge, Kottayam is set aside. Petitioner is found not guilty of the offence. He is acquitted. M.SASIDHARAN NAMBIAR, JUDGE. uj.