IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 706 of 2001() ---------------------------------------- CRA.385/1995 of ADDL.SESSIONS COURT, THALASSERY CC.183/1993 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), KANNUR .................... REVN. PETITIONERS/ APPELLANTS/ ACCUSED ----------------------------- 1. BABU, S/O. NARAYANAN, KUTTIYATTOOR, KANNUR. 2. MUHSMMRF, D/O. IBRAHIM, PAYANGADY, KANNUR. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT/ RESPONDENT/ COMPLAINANT -------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.3360/2001 IN CRL.RP. NO.706/2001 DISMISSED 17.09.2008 SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE tss THOMAS P. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 706 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 O R D E R On the allegation that on 09.02.91 at about 6 p.m. the revision petitioners and the 1st accused (he died and the charge against him abated), in furtherance of their common intention voluntarily caused grievous hurt to PW1 and committed mischief, the Irikkur police charge sheeted the revision petitioners and the 1st accused for the offences punishable under Sections 324, 326 and 427 read with Section 34 IPC. Revision petitioners faced trial in the court of the learned Judicial First Class Magistrate-III, Kannur, were found guilty and convicted for the offences punishable under Sections 324 and 326 read with Section 34 IPC and sentenced to undergo imprisonment for various periods. Revision petitioners preferred appeal to the Sessions Court, Thalassery. The learned Additional Sessions Judge confirmed the conviction and sentence and dismissed the appeal. Hence, this revision petition. 2. Heard learned counsel for the revision petitioners and the learned Public Prosecutor. Learned counsel submitted that the case against the revision petitioners is not proved beyond reasonable Crl.R.P. No.706/2001 -:2:- doubt. It is also submitted that there is no proper identification of the revision petitioners in the course of trial. 3. That, PW1 suffered hurt/grievous hurt on the day of the incident is proved by Exts.P3, P6 and testimony of PWs 3 & 7. Regarding the alleged incident, PWs 1 & 2 gave evidence. As per their evidence, the revision petitioner No.1(2nd accused) was engaged as a ferry man and while the uncle of PW1 was going on the boat there was some quarrel between him and the 1st revision petitioner which was questioned and when PW1 came to the scene, he was assaulted by the revision petitioners and 1st accused. PW1 stated that he received a blow with a reaper from the 1st accused on his head, the revision petitioners also assaulted him but he was not able to say with what all weapons the revision petitioners had assaulted him as he had fainted on receiving the blow from the 1st accused. PW2 stated that apart from the 1st accused, the 1st revision petitioner also beat PW1 with reaper, the 2nd revision petitioner giving a kick to PW1. PW5, the head constable recorded Ext.P1, the FI statement given by PW1 while undergoing treatment at H.Q. hospital, Kannur on 14.02.91. PW5 registered the case. PW6, Head Crl.R.P. No.706/2001 -:3:- Constable who invested the case, prepared Ext.P5 mahazar for scene of occurrence and seized MO2 series, the two reapers allegedly found at the place of occurrence. MO1 is the clothe which the PW1 was allegedly wearing at the time of incident. PW1 said that he is not able to identify the reapers with which he was assaulted by the 1st accused. No effort was made by the prosecution to identify any of MO2 series through PW2. MO2 series were marked in evidence, through PW6. Learned counsel argued that though going by the evidence of PW2 there were 5 to 8 persons witnessing the alleged incident, prosecution selected and hand picked only PW2 who is closely related to PW1. 4. Though it is contended by learned counsel relying on Mohammed v. State of Kerala [2002 (3) KLT SN Case No.56] at page 41 that, there is no proper identification of the revision petitioners by PW1 and 2, I am not persuaded to accept that argument since PWs 1 & 2 have referred to the revision petitioners who were in the dock of the accused at the time of trial by their name, and that identification was also not disputed. 5. So far as the incident is concerned, it is stated that MO2 Crl.R.P. No.706/2001 -:4:- series are not identified by PWs 1 or 2. Ext.P5, mahazar was prepared by PW6 only on 15.02.91 while the incident occurred on 09.02.91. It is difficult to think that from 09.02.91 till 15.02.91, MO2 series were laying at the scene of occurrence. This assumes importance in the light of failure or inability of PWs1 and 2 to identify MO2 series as the weapon for offence. As regards the incident, it is true that PWs 1 & 2 stated that the revision petitioners assaulted him. So far as PW1 is concerned, may be on account of alleged fainting he did not say that the first revision petitioner assaulted him with reaper. PW2 in cross examination admitted that he is the close relative of PW1. On going through the records submitted by prosecution it is seen that only PW2 who is the close relative of PW1 was cited by the prosecution to prove the incident. It is not as if no other independent witness was available for the prosecution and going by the evidence of PW2, there were other witnesses who could have been cited by the prosecution. This was not done. 6. The revision petitioners have a case that PW1 who was intoxicated fell down and sustained injuries. It is pointed out by learned counsel from the evidence of PW7 that there was no Crl.R.P. No.706/2001 -:5:- possibility of PW1 sustaining fracture by the assault with a reaper. According to the learned counsel, if there was an assault with reaper, the fracture would have been attained by a contusion. Merely for the reason that no contusion was seen corresponding to the fracture, I am unable to say that the fracture could not have been caused on beating with a reaper. 7. Apart from the fact that no independent witness was examined by the prosecution, there is another glaring infirmity emerging from Ext.P6. In Ext.P6, it is stated that PW1 was conscious at the time of examination. He told the medical officer that 10 persons assaulted him with reapers. When he was confronted with that statement in cross examination, he stated that what he said was the involvement of 4 persons, i.e., the revision petitioners, 1st accused and one Rajan. The said statement of PW1 in Ext.P6 assumes importance in the light of the failure of the prosecution to cite and examine independent witness. At any rate, prosecution has no case against Rajan, who according to PW1 had assaulted him along with the revision petitioners and 1st accused. The prosecution was not successful in proving its case beyond Crl.R.P. No.706/2001 -:6:- reasonable doubt. As such, I am inclined to think that the benefit of doubt should have been given to the revision petitioners. Their conviction and sentence are liable to be set aside. This revision petition is therefore allowed. Conviction and sentence on the revision petitioners are set aside and they are acquitted from the charges. Bail bonds are cancelled. THOMAS P. JOSEPH, JUDGE ttb