IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 323 of 2001() --------------------------------------- CRA.73/1999 of SESSIONS COURT, THRISSUR CC.361/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER/APPELLANT/FIRST ACCUSED: ------------------------------------------------------------------------ SHAJI @ PRETHAM SHAJI, S/O. MULLATH VEETTIL LENA, NEAR TAHANI HOSPITAL, GURUVAYOOR. BY ADV. SRI.RAJIT RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR, SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.323 of 2001 ----------------------------------------- Dated this the 30th July, 2009 O R D E R Petitioner, along with two others were charge sheeted for offences under Sections 341, 324 and 326 read with 34 of the Indian Penal Code ( for short “IPC”). The Magistrate court, after trial found all accused guilty of offences under Sections 341, 324 and 326 IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.4000/- each for the offences under Section 326 read with 34 of IPC. No separate sentence is awarded for the offences. Fine amount if realised, an amount of Rs.6000/- is ordered to be paid to PW3 as compensation under Section 357 (1) Cr.P.C. In default of payment of fine to undergo rigorous imprisonment for three months each. 2. In appeal before Sessions Court, the conviction and sentence passed against second and third accused were set aside and they were acquitted. But the conviction of first accused under Sections 324 and 326 IPC was confirmed. The sentence was reduced to one year and to pay a fine of Crl.RP.323/01 2 Rs.1000/- and in default of payment of fine to undergo simple imprisonment for three more months. The order passed for compensation was also set aside. The said conviction and sentence are challenged by first accused in this revision. 3. According to prosecution, the incident occurred on 25.6.1996 at 5.15 p.m. While PW1 to PW3 were standing in a lane and talking, third accused wrongfully restrained PW3 and first accused cut him with a sword and second accused also cut him with a sword and thereby, he sustained a fracture to the finger and also other injuries. The above acts were committed by accused 1 to 3 in furtherance of common intention. 4. On the side of prosecution, PW1 to PW8 were examined and Exhibits P1 to P7 were marked. MO1 sword was marked on the side of the prosecution. The accused examined DW1 to DW4 and marked Exhibits D1 to D6. According to accused, this is a case falsely foisted against them, since first accused gave evidence against PW2 in a criminal case in which, he was convicted. The Circle Inspector of Police, against whom first accused's mother gave a complaint also is instrumental for Crl.RP.323/01 3 making a false case against the accused. 5. PW1 to PW3 are the occurrence witnesses. PW1 is an independent witness and he turned hostile to prosecution. PW2 gave First Information Statement, Exhibit P1 and he witnessed the incident in which his brother, PW3 sustained injuries. PW2 and PW3 supported the prosecution. They gave evidence more or less consistent with the prosecution case. Both courts below found that their evidence is believable and they relied upon the same to come to a conclusion that an incident as alleged was taken place. The contention of the accused that they were falsely implicated was rejected. 6. Learned counsel for revision petitioner argued that courts below failed to consider several vital aspects in this case, which would show that the case set up by the prosecution is false. It is submitted that there is difference in the time of occurrence. As per first information statement, Exhibit P1, the time of occurrence is 5.45 p.m, whereas in Exhibit P2 wound certificate, the time of occurrence stated by the patient was 5 p.m. 7. Thus, a difference of 45 minutes in the time stated to Crl.RP.323/01 4 the police as well as in the wound certificate. It is also submitted that the name of accused was not stated by the injured to the doctor, as revealed from Exhibit P2 wound certificate. Therefore, it is argued that this is a case, which was subsequently fabricated against the accused as a result of an afterthought, it is submitted. 8. Learned defence counsel also argued that two swords are involved in the commission of offence, as per the allegations in the First Information Statement. It is clearly mentioned in Exhibit P1 that accused 1 and 2 used separate weapons. This portion of the statement was put to PW2 and it was denied, but Exhibit P1 is a signed statement, which reveals the involvement of using of two weapons, but the prosecution produced only one weapon it is pointed out. Thus, according to accused, the witnesses have deviated much from the earlier statement and developed another story during the investigation and at the time of evidence, it is submitted. 9. It is also pointed out that there was no blood on the sword, which is seized in this case as the weapon of offence. Exhibit P5 is the mahazar prepared for seizure of the same on Crl.RP.323/01 5 the very next day of the incident on 26.6.1996 at 11.30 a.m. The sword was produced by PW2, which he had allegedly picked up from the place of occurrence, which accused allegedly abandoned at the scene. But sword was not subjected to any chemical analysis. 10. In the seizure mahazar also, it is not mentioned that sword is blood stained. On the other hand, there were blood stained articles in the scene. The scene mahazar, Exhibit P3 would show that a blood stained Dhothi and two slippers were found at the scene. The scene mahazar was prepared on 26.6.1996 at 10 a.m, but investigating officer did not seize those articles, it is submitted. 11. Based on the above discrepancies and the contradictions pointed out, learned counsel for revision petitioner argued that the entire prosecution case is baseless and this case is fabricated against the accused at different level. The evidence given by PW2 and PW3 cannot be accepted, it is contended. It is also pointed out that the only independent witness examined in this case as PW1 turned hostile to the prosecution. Though the incident happened in a public way, no Crl.RP.323/01 6 independent witness was examined. 12. As per the prosecution case, several persons had come to the scene and the injured was taken to the hospital by the friends, but none of them were examined. Since there is no independent corroboration, the evidence of PW2 and PW3 has to be analysed with great care and caution and if the discrepancy pointed out establish sufficient to discard their evidence, it is submitted. 13. Learned Public Prosecutor argued that none of the points raised by the learned defence counsel would be sufficient to discard the prosecution case in toto. The lower court has considered all these points and reasons are also given why these discrepancies would not affect the prosecution adversely. There is no reason to come to a different finding by this Court and the concurrent findings cannot be interfered with unless those findings are perverse, it is submitted. The prosecution has explained all the discrepancies, it is further submitted. 14. Heard both sides. Perused records and evidence. It is true that there are certain discrepancies as pointed out by Crl.RP.323/01 7 the learned defence counsel, in respect of the time of occurrence, presence of blood, number of weapons used, non seizure of material objects, non examination of the independent witnesses etc. But, lower courts have considered all these aspects and found that such discrepancies are not fatal to the prosecution. The difference in the time of occurrence given in Exhibit P2 and in the FIR can be attributed to the sense of time of Pws 2 and 3, who have given the First Information Statement and given the statement to the doctor. The investigating officer has conducted the investigation and found that the time is 5.15 p.m. and there is no much difference in the time of occurrence stated in the First Information Statement, the wound certificate and the charge. 15. It is true that PW2 stated in the First Information Statement that two swords were used, but in investigation it is revealed that only one sword was used. It is only natural for witnesses to exaggerate or omit to mention certain details. But, unless there is a vital discrepancy which cuts the root of prosecution case, conviction cannot be set aside or it cannot be made a reason to disbelieve the prosecution witnesses. Crl.RP.323/01 8 16. Regarding non seizure of the Dhothi and slippers, I find that mere omission on the part of the investigating officer may not lead to any inference other than the fact that he committed an omission in seizing a material object, which would be relevant to the case. But such omission alone may not cast any doubt on prosecution case. Same is the case in sending the sword, MO1 for chemical analysis. The seizure is proved by evidence of the investigating officer as well as PW2. PW3, the injured and the eye witness, PW2 have corroborated each other in all material particulars, as held by the courts below and discrepancies pointed out are not sufficient to reject their evidence, as false. 17. Now coming to the defence case, learned counsel for accused argued that admittedly PW2 was an accused in a criminal case, in which, first accused was a witness. It is revealed from the certified copy of the judgment, Exhibit D5, it is because of this enmity that petitioner has been falsely implicated in the offence, it is submitted. The Circle Inspector of Police was also allegedly inimical towards the first accused, since his mother gave a complaint against him about Crl.RP.323/01 9 harassment. The first accused's friend had also filed a petition against Circle Inspector making allegations. Therefore, the Circle Inspector had reasons to wreak vengeance and he had also played a role in falsely implicating a case against the accused, it is submitted. 18. Learned Public Prosecutor submitted that evidence of PW3 and medical evidence will establish that PW3 had sustained a grievous injury and it was caused by use of a weapon like MO1 sword. It is needless to say that there must be some assailant, who had acted in the manner against PW3. It is unlikely that PW3 will exonerate actual culprit and falsely implicate first accused in the crime. It is also submitted that the Circle Inspector had no role in the investigation, as revealed from his own evidence. It is also submitted that in the criminal case against PW2, first accused was not a material witness. He was only an attester to seizure mahazar. These facts may not be sufficient to conclude that this case was falsely foisted against petitioner with the assistance of the Circle Inspector of Police, it is submitted. 19. A suggestion was made to Circle Inspector of Police Crl.RP.323/01 10 that he had falsely got the case charge sheeted against the accused through Sub Inspector of Police, but the said suggestion was denied. The mere existence of a complaint against the Circle Inspector by itself cannot be made a ground to believe that he would falsely fabricate a case with the aid of the witnesses and the Sub Inspector in this case, it is submitted. 20. On hearing both sides, I am satisfied of the submissions by the learned Public Prosecutor and mere suggestions may not be sufficient to hold that this is a falsely foisted case, especially since there is overwhelming evidence that the incident happened, as rightly submitted by learned Public Prosecutor. It is unlikely that a person who sustained serious hurt will exonerate real culprit and falsely implicate another person in the crime unless he has strong reason to do so. The evidence in this case does not show any possibility of false implication against petitioner. 21. Learned counsel for petitioner argued that as per the wound certificate, PW3 was conscious and PW3 has stated that he had mentioned the name of the assailant to the doctor. A reading of the evidence of PW3 will show that he did not say in Crl.RP.323/01 11 which hospital he gave the details of the assailant. As per the evidence, there was two hospitals. PW2 deposed that the name of the assailant was stated to the doctor at the Medical College Hospital, but not at Thahani Hospital. 22. PW4, the doctor did not mention in his evidence as to who had told him about the alleged cause of injury. In such circumstances, the omission to note the name of the assailant in the wound certificate, Exhibit P2, cannot be taken as a vital discrepancy and the courts below have rightly rejected the contentions. 23. Learned counsel for petitioner pointed out that the petitioner was convicted for offence under Section 326 without the aid of Section 34 of IPC. As per the evidence of PW1 and PW2 and according to the prosecution, petitioner was not the person who had caused grievous hurt to PW3. The fracture sustained to the little finger was caused by cutting with the sword by the second accused and not first accused, as per their evidence. Therefore, petitioner could not be said to have caused grievous hurt and he cannot be independently convicted for offence under Section 326 IPC, it is submitted. Crl.RP.323/01 12 24. On going through the evidence of PW1 and PW4 doctor and the wound certificate, Exhibit P2, it is clear that petitioner had sustained an injury on the stomach, which is serious in nature. It had exposed the bowels and it was hanging down at length of 7 c.m on the right iliac fossa. PW3 was admitted in the hospital on 25.6.1996 and surgery was conducted on him. He was first seen at the Thahani Hospital, from where he was referred to the Medical College Hospital. 25. It is needless to say that having sustained such a serious injury, it is only reasonable to refer that he would have been in and severe pain he would not be able to follow his ordinary pursuits. Of course, PW3 has not specifically stated that he was under severe pain or that he could not follow his ordinary pursuits. Therefore, conviction passed under Section 326 IPC cannot be said to be illegal or unsustainable. Learned counsel for petitioner also pointed out that the incident happened about 13 years back. It is submitted that the injured and the accused are friends now and the petitioner is prepared to pay compensation. But it is pointed out by the learned Public Prosecutor that the matter is not compoundable. Anyway Crl.RP.323/01 13 considering various facts and circumstances, I find that sentence can be modified. In the result, the following order is passed: (i) The conviction passed against the petitioner under Sections 324 and 326 is confirmed. (ii) The sentence imposed by the learned Sessions Judge is modified as follows: Petitioner is sentenced to undergo simple imprisonment for 9 months and to pay a fine of Rs.5,000/- and in default of payment of compensation, to undergo simple imprisonment for three more months. (iii) If the fine is realised, it shall be paid as compensation to PW3 under Section 357 (1) Cr.P.C. The Criminal Revision Petition is partly allowed. Sd/- K.HEMA, JUDGE vgs. /True copy/ P.S to Judge Crl.RP.323/01 14 K.HEMA, J. ------------------------------ Crl.R.P.NO.323 of 2001 ------------------------------ O R D E R 30.7.2009