IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 455 of 2003 -------------------------------------------- CRA.56/2000 of ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA CC.308/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONERSAPPELLANTS/ACCUSED: 1. SAJEVAN S/O. RAMAN, ALLIYANKAL HOUSE, AMBALAKANNU BHAGOM, KONNATHADY VILLAGE, ADIMALI. 2. SADASIVAN S/O. RAMAN, ALLIYANKAL HOUSE, AMBALAKANNU BHAGOM, KONNATHADY VILLAGE, ADIMALI. BY ADV. SMT.KOCHUMOL KODUVATH SRI.RAINGE KODUVATH RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1609/2003 IN CRRP 455/2003 DISMISSED 17.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.455 of 2003 -------------------------- ORDER Petitioners, who are brothers, were convicted and sentenced for the offences under Sections 447 and 326 of Indian Penal Code by Judicial First Class Magistrate, Adimaly in C.C.No.308/1996. Learned Additional Sessions Judge (Adhoc-II), Thodupuzha confirmed the conviction and sentence in Crl.A.No.56/2000. This revision is filed challenging the concurrent conviction and sentence. 2. The case of the petitioners is that courts below did not properly appreciate the evidence and failed to note that except PWs 1 to 3, the other four witnesses, examined by the prosecution to prove the incident, did not support the prosecution case. It is contended that when the independent witnesses turned hostile, the interested evidence of the injured and his parents should not have been accepted by the courts below and hence, the CRRP 455/03 2 conviction is not sustainable. It is also contended that recovery of MOs 1 and 2, the iron rod and the wooden stick, were not properly proved and hence, should have been eschewed from the evidence and on a proper appreciation, it should have been found that prosecution failed to establish the offences alleged against the petitioners. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Prosecution case is that on the morning of 13.4.1996 at about 7.15 a.m., PW2, the injured had gone for toddy tapping from the palm trees and PW1, the father and PW3, the mother were in the house. While so, PWs 1 and 3 heard a cry of the injured and they rushed to the spot and when they reached the scene, they found petitioners beating PW2 with an iron rod and a wooden stick. PW1 cried seeing the incident. Petitioners ran away. PW2 was taken first to Taluk Hospital, Adimaly, from where, Exhibit P8 wound certificate was prepared by PW15, CRRP 455/03 3 Dr.Aleyamma. As the injuries were found grievous, she referred the patient to a major hospital. PW2 was then taken to Co-operative Hospital, Thodupuzha, from where, PW13, the Orthopedic Surgeon, treated him and issued Exhibit P6 wound certificate. PW1, the father, furnished Exhibit P1 F.I. Statement, based on which Exhibit P7 FIR was prepared and the crime was registered. Though PWs 4 to 7, the independent witnesses, did not support the prosecution case, PW2, the injured, deposed that he sustained the injuries when petitioners attacked him and beat him with an iron rod and a wooden stick. PWs 1 and 3, the parents, who rushed and reached the spot, corroborated the evidence of PW2. Learned Magistrate, on proper appreciation of the evidence, found that evidence of PWs 1 to 3 are trustworthy and reliable. It is based on that evidence, petitioners were convicted. Learned Additional Sessions Judge re-appreciated the evidence and confirmed the finding of the learned Magistrate that evidence of PWs 1 to 3 are reliable CRRP 455/03 4 and trustworthy. 5. Though learned counsel appearing for the petitioners vehemently argued that there is inconsistency and contradictions in the evidence of PWs 1 to 3, especially on the version of PW2 from the box and Exhibit P1, the F.I. Statement, on going through the depositions of PWs 1 to 3, along with the F.I. Statement, I cannot agree with the submission. Evidence of PW2, the injured, shows that he was attacked by both the petitioners and he sustained the injuries when he was beaten with an iron rod and a wooden stick. Evidence of PW13, the Doctor, who treated PW2, establishes that the injuries could be caused if PW2 was beaten with an iron rod or a wooden stick. Exhibit P6 wound certificate establishes that PW2 sustained the following injuries: (1) Communicated fracture ulna left upper third. (2) Compound fracture Tibia upper third and (3) Compound communicated fracture Tibia left middle and Fibula upper third. Evidence of PW2 had been fully corroborated by the evidence of PWs CRRP 455/03 5 1 and 3. Though the learned counsel argued that evidence of PWs 1 to 3 should be discarded as they are interested witnesses, I cannot agree. PW2 is the best witness to depose as to how he sustained the injuries. There was no suggestion to PW2 that he sustained the injuries by any other means. Though there was a suggestion to the Doctor that the injuries could be caused if the injured had fallen from a height, there is no suggestion to PW2 that he had sustained the injuries by falling. Cross-examination of PW2 shows that there was an incident where under petitioners sustained injuries, when PW2 and his friend Biju allegedly attacked them. It was even suggested that first petitioner was hospitalised and it was on the allegation that petitioners committed theft of toddy from the palm trees of PWs 1 to 3. Therefore, previous enmity has been established. There is no reason to believe that PW2 would falsely allege a case against the petitioners if the injuries were not inflicted by them and thereby allowed the real CRRP 455/03 6 culprit to escape. It is highly improbable. 6. Evidence of PWs 1 and 3 establishes that on hearing the cry of PW2, they rushed to the spot and found the petitioners inflicting injuries on PW2. The fact that PWs 1 and 3 are the parents is not a ground to disbelieve their evidence if they are probable natural eye witnesses. Evidence establishes that the incident occurred near to the house of PWs 1 to 3. Therefore, naturally, they are probable eye witnesses. Their case is that they rushed to the spot and found the petitioners beating PW2. Learned Magistrate and learned Additional Sessions Judge properly appreciated the evidence and accepted the evidence of PWs 1 to 3. I find no reason to disagree with the appreciation of evidence. Evidence, therefore, establishes that it was the petitioners, who, in furtherance of their common intention, inflicted grievous hurt on PW2 by beating with an iron rod and stick. There is no evidence to prove that petitioners committed trespass into the property of PWs 1 to 3. There is CRRP 455/03 7 no evidence to prove that the incident occurred within the property of the petitioners and therefore, the conviction for the offence under Section 447 of Indian Penal Code is not sustainable. 7. The evidence conclusively establishes that petitioners, in furtherance of their common intention, caused grievous hurt to PW2 by beating with an iron rod and a wooden stick. Even if recovery of MOs 1 and 2 is not believed as argued, when the injuries inflicted were proved to be inflicted by beating with an iron rod and a wooden stick and the evidence of PWs 1 to 3 establishes that petitioners beat PW2 with an iron rod and a wooden stick, I find no reason to interfere with the conviction for the offence under Section 326 of Indian Penal Code. But the conviction for the offence under Section 447 of Indian Penal Code will not stand. 8. Then the only question is with regard to the sentence. Learned counsel appearing for the CRRP 455/03 8 petitioners submitted that first petitioner was aged only 24 years at the time of the incident and therefore, leniency is to be shown. Considering the grievous injuries inflicted on PW2, I find that it is not in the interest of justice to show leniency, as the sentence of imprisonment awarded is only one year in addition to the fine of Rs.3,000/-. Hence, the sentence for the offence under Section 326 of Indian Penal Code is only to be confirmed. Revision is partly allowed. Conviction and sentence of the petitioners for the offence under Section 447 read with Section 34 of Indian Penal Code is set aside. The conviction and sentence for the offence under Section 326 read with Section 34 of Indian Penal Code is confirmed. Learned Magistrate is directed to execute the sentence. 17th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 455/03 9 M.Saisdharan Nambiar, J. -------------------------- Crl.R.P.No.455 of 2003 -------------------------- ORDER 17th May, 2010