IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 Crl.Rev.Pet.No. 334 of 2003() ----------------------------- CRA.132/2001 of ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA CC.759/1991 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. VELU S/O. MARUTHAN, THANKAMALA ESTATE QUARTERS, PERIYAR VILLAGE. 2. MARUTHAYYA S/O. VELU, THANKAMALA ESTATE QUARTERS, PERIYAR VILLAGE 3. SELVAM, S/O. MADAN, THANKAMALA ESTATE QUARTERS, PERIYAR VILLAGE. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): RESPONDENT/STATE ------------------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.334 OF 2003 --------------------------------------------- Dated 20th July, 2010 O R D E R Petitioners were convicted and sentenced for the offences under Sections 324 and 326 of Indian Penal Code by Judicial First Class Magistrate, Peerumedu in C.C.759/1991. Petitioners challenged the conviction and sentence before Sessions court, Thodupuzha in Crl.A.132/2001. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and modified the sentence. Revision is filed challenging the conviction and sentence. 2. Prosecution case was that when PW2 Deepak Dogra, Manager of Thangamala Estate, finding first revision petitioner, the gardner is not doing the work properly, CRRP 334/03 2 approached him and questioned him why he shows lackness in the work. First petitioner did not like it. There was a wordily altercations between PW2 and first petitioner. He lifted his spade and with the back side of it hit on the head of PW2. PW2 rushed to the house finding that petitioners 2 and 3 the son and son-in-law of the first petitioner are also there. Third petitioner then threw a stone at PW2. Second petitioner with a pruning knife inflicted injuries on PW2 and when he fell down, third petitioner also inflicted injuries causing grievous hurt and hurt. Thinking that PW2 is no more, petitioners left the place. PW2 some how reached his bed room and fearing that petitioners may again come, locked the door from inside and remained there. P.K.Singh and Mishra, Managers of adjacent estates reached there after about 1½ hours. They knocked the CRRP 334/03 3 door and get the door opened by PW2. Finding that PW2 sustained grievous hurt and was bleeding, took him to Vandiperiyar Hospital along with the Medical officer of the Estate. From Vandiperiyar Hospital, after giving first aid, PW2 was taken to Medical College Hospital from where PW6 the doctor examined him and prepared Ext.P4 wound certificate. He was admitted in the hospital and treated there as inpatient, evidenced by Ext.P9 treatment records proved through PW9 the doctor. PW7, head constable attached to Gandhi Nagar Police Station proceeded to Medical College, Hospial on getting intimation and recorded Ext.P1 FI statement of PW1 and registered Crime No.274/TR/91 under Ext.P6 FIR. The crime was transferred to Vandiperiyar police station as the incident had occurred within the jurisdiction of that police station. Case was CRRP 334/03 4 registered there as crime No.57/1991 under Ext.P8 FIR. PW8 Sub Inspector investigated the case and laid the charge. Petitioners pleaded not guilty. Learned Magistrate after recording the evidence, acquitted the petitioners finding them not guilty. PW2, the injured de facto complainant challenged the order of acquittal before this court in Crl.R.P.475/1994. This court found that the order of acquittal on the ground that injury sustained by PW2 spoken to by him do not tally with the medical records, and non examination of P.K.Singh and Misra and the Medical officer of the estate are fatal, found that it is not so and prosecution should have produced the documents relating to injury sustained by the accused as well as the FI statement whereunder, a crime was registered in respect of the same incident against PW2 and remanded the case back to the Magistrate for CRRP 334/03 5 fresh disposal. After remand, no further evidence was adduced and only argument of the Assistant Public Prosecutor and defence were heard. Learned Magistrate thereafter finding that this court had found that there is no contradictions in the injury sustained by PW2 and the medical evidence and the non examination of Misra, P.K.Singh and the Medical Officer of the Estate are not fatal, convicted the petitioner. Learned Additional Sessions Judge also followed the same reasoning and confirmed the conviction. 3. Argument of the learned counsel is that though this court remanded the case for fresh disposal, trial court and the appellate court took it that the remand is only for convicting the petitioners and without proper appreciation of evidence wrongly assumed that entire matters were concluded by the order of CRRP 334/03 6 this court and convicted the petitioners, which is illegal. It was argued that PW1 who furnished Ext.P1 FI statement was not an eye witnesses to the incident and evidence of PW1 shows that hearing the news that PW2 was attacked by accused, he reached the Bungalow and found it locked from inside and thereafter the Managers of the adjacent Estates, P.K.Singh and Misra came there and got the door opened by PW2 and along with the doctor of the Estate, they proceeded to Vandiperiyar Hospital and PW1 also accompanied them. It is pointed out that in cross examination PW1 admitted that while they were proceeding in the vehicle to Vandiperiyr, labourers attacked the jeep and physically manhandled P.K.Singh and Misra and in such circumstances, possibility of the injury sustained by PW2 in the second incident cannot be ruled out. It was also pointed out CRRP 334/03 7 that as found by this court in the earlier revision, in respect of the incident whereunder petitioners sustained injuries, police has registered a crime against PW2 and prosecution did not produce the FIR and the relevant records before the court which are material and directed the trial court to direct the prosecution to produce the same and in spite of the remand, relevant records were not produced and therefore, the genesis of the incident has not brought to light. It was argued that when police has a case that PW2 attacked first revision petitioner and registered a case against PW2, it could be that PW2 got into the house fearing attack by the labourers and evidence of PW1 show that while PW1 was proceeding to Vandiperiyar, labourers blocked the road and attacked them and in such circumstances, possibility of PW2 sustaining CRRP 334/03 8 injuries in the said attack cannot be ruled out and in such circumstances, conviction is not sustainable. 4. Learned Public Prosecutor pointed out that evidence of PW1 corroborates the evidence of PW2 and evidence of Pws.6 and 9 with Exts.P4 and P9 establish that PW2 sustained grievous hurt and evidence also establish that except PW2 and the accused there were nobody else at that time and only PW2 can throw light into the incident and learned Magistrate and learned Sessions Judge the evidence of PW1 is trustworthy and there is no reason to disbelieve the evidence and therefore, the conviction is perfectly legal. 5. Though as per order in Crl.R.P.No.475/1994, this court set aside the order of acquittal and remanded the case to the learned Magistrate, no further evidence in the CRRP 334/03 9 case subsequent to the remand. Remand was for fresh disposal in accordance with law. This court, while remanding the case directed the Magistrate to direct the prosecution to produce material documents which relate to the registration of the case as against PW2 and the injuries sustained by petitioners. The proceeding paper of the learned Magistrate does not show that there was any specific direction by the learned Magistrate to the prosecution to produce those records. But that is not a ground to justify the non production of the material records. This court found that there is admittedly a crime registered against PW2 in respect of the incident, where all the accused sustained injuries. If the evidence of PW1 is accepted, genesis of the incident started when PW2 questioned first petitioner as to why no progress is shown in his work and CRRP 334/03 10 alleged that he is showing lackness in his work. It is the evidence of PW2 that infuriated by the questioning, first petitioner hit him with the back side of a spade and PW2 ran to the Bungalow. It is further case that then petitioners 2 and 3 also rushed towards him and attacked him. Therefore, in the first incident, if it could be said the first one, only first petitioner was involved. Petitioners 2 and 3 came into picture when PW2 sustained injury and was running towards the Bungalow and entered the corridor. Petitioners 2 and 3 attacked him and inflicted the other injuries. It is in such circumstances, this court found that though prosecution has no duty to explain all the injuries sustained by an accused, it is for the prosecution to produce the relevant records showing the injuries sustained by the accused as well as the details of case CRRP 334/03 11 registered against PW2 by the police in respect of the incident. Even without any direction prosecution should have produced those records. This court granted opportunity to the prosecution by remanding the case, to produce the records. Unfortunately even thereafter prosecution did not avail of that opportunity. Therefore, as the records now stand, genesis of the incident is not unveiled. It is not known how the incident originated, who was the aggressor and who are victims. True, nature of the injuries sustained by PW2 as proved by the evidence of PW6 and Ext.P4 wound certificate and subsequent treatment as proved by Ext.P9 treatment record of the medical College Hospital, establish that PW2 sustained grievous hurt. But question is whether prosecution has established that the grievous hurt and hurt were caused either from the courtyard or the CRRP 334/03 12 corridor of the Bungalow or elsewhere. As rightly pointed out by the learned counsel appearing for the petitioners, evidence of PW1 reveals that while PW2 along with other Managers P.K.Singh and Misra and with PW1 were proceeding in the vehicle to Vandiperiyar, the road was blocked by the labourers who attacked the passengers in the vehicle. It was alleged that all were beaten and stones were also thrown. Question is , in such circumstances, can it be said that all the injuries sustained by PW2, evidenced by Ext.P2 were either caused from the courtyard or from the corridor of the house or while they were attacked by the labourers on the way to Vandiperiyar. 6. Evidence of PW6 with Ext.P4 wound certificate show that PW2 sustained several injuries on his head, causing even depressed fracture of the skull. Injuries inflicted by CRRP 334/03 13 the petitioners, as spoken to by PW2, are one injury caused by hitting on his mouth with the back side of a spade by first petitioner, an injury inflicted by third petitioner by throwing a stone, an injury inflicted with a pruning knife by second petitioner and injuries inflicted by third petitioner, with a knife. But these overt acts do not correspond cause of these injuries tally with the depressed fracture sustained by PW2 on his skull. If that be so, possibility of PW2 sustaining the injuries in the second incident spoken to by PW1, on the way to hospital cannot be ruled out. If that be the case, question is what are the injuries sustained by PW2 in the first incident namely, at the courtyard and the corridor of the house. It is not established. Failure of the prosecution to produce records relating to the other crime registered by the CRRP 334/03 14 police against PW2, assumes importance at this juncture. Fact that in spite of the opportunity granted, those relevant records were not produced, casts doubt on the correctness of the version of PW2 as to genesis of the incident. If that be so, it cannot be said that the uncorroborated evidence of PW2 is sufficient to enter a finding that petitioners are the aggressors and they voluntarily caused hurt or grievous hurt to PW2. It is pertinent to note that though Misra and P.K.Singh are not eye witnesses to the incident, as according to the prosecution they reached there only 1½ hours after the incident and therefore, their non examination is not fatal to prove that incident, in the light of the evidence of PW1 their evidence is relevant and material. According to PW1 the second incident occurred when P.K.Singh and CRRP 334/03 15 Misra were there along with PW2, the labourers attacked them. If they were examined, they would have thrown light into the matter as to what really happened in the second incident. So also, non examination of Medical officer is also relevant on another aspect. True, Medical Officer was not an eye witness. From the evidence of PW2 it is not known how the Medical Officer reached there. According to PW2, he did not use the telephone at all even to inform the police that he sustained injuries from the hands of the petitioners. It was the Medical Officer John Sakaria, who had disclosed to PW6 the doctor the alleged cause of injury noted in Ext.P4 as proved by the evidence of PW6 and Ext.P4 wound certificate recorded by PW6. Therefore, non examination of the Medical Officer also cannot be ignored. 7. When the entire evidence is CRRP 334/03 16 appreciated in this background, petitioners are entitled to get at least the benefit of doubt, as genesis of the incident, how it progressed and how injures were caused on PW2 and whether accused sustained injuries were not properly explained. Hence conviction of the petitioners is not sustainable. Revision is allowed. Conviction and sentence passed by Judicial First Class Magistrate, Peerumade in C.C.759/1991 as confirmed by Additional Sessions Judge, Thodupuzha in Crl.A.132/2001 is set aside. Petitioners are found not guilty of the offence. They are acquitted. M.SASIDHARAN NAMBIAR, JUDGE. uj.