IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.Rev.Pet.No. 2594 of 2010() ------------------------------ CRA.705/2007 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-II, TRIVANDRUM CC.293/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- VIJAYAN, S/O. GOVINDAN, M.M.HOUSE, ALAMCODE, PARACHAL MURIYIL, KULATHUMAL VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER RESPONDENT(S): COMPLAINANT & PW1 TO PW3 --------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RAVEENDRAN, S/O SUBRAMANIA KANIKKAR(PW1) KULAVIYODU, THAZHAMTHOTTATHU PUTHEN VEEDU, AMBALATHINKAALA, PARACHALMURI, KULATHUMMEL VILLAGE THIRUVANANTHAPURAM-695572. 3. RAJENDRAN, S/O. RAVEENDRAN(PW2) KULAVIYODU, THAZHAMTHOTTATHU, PUTHEN VEEDU, AMBALATHINKAALA, PARACHALMURI,KULATHUMMEL VILLAGE, THIRUVANANTHAPURAM-695572. 4. SARASWATHY, D/O. KAMALAKSHI,(PW3) KULAVIYODU, THAZHAMTHOTTATHU PUTHEN VEEDU, AMBALATHINKAALA, PARACHALMURI, KULATHUMMEL VILLAGE, THIRUVANANTHAPURAM-695572. ADV. SRI.SHAJIN S.HAMEED FOR R2-R4 P.P.SMT.SUMANGALA P.N. FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.2594 of 2010 --------------------------------- Dated this the 2nd day of September 2010 O R D E R Aggrieved by the order of conviction and sentence imposed by the trial court as well as the lower appellate court, the sole accused therein preferred this revision petition. 2. The case of the prosecution is that, due to previous enemity of the accused/appellant towards Pws.1 to 3 and with the intention to cause hurt them, on 3.2.2000 at 9.45am, the revision petitioner inflicted injury in to the left knee of PW1 with a chopper on the road margin in Parchalmuriyil in Kulathummal village and when PW1 tried to prevent from further attack, the revision petitioner inflicted cut injuries on the left hand of PW1 striking with a Crl.R.P.No.2594 of 2010 -: 2 :- chopper sustained fractures and hit at the left buttock of PW1 and on seeing that, PW3 interfered, the revision petitioner hit at the right side of the neck of PW1 and caused abrasion at the abdomen of PW3 with a chopper and according to the prosecution, the accused/revision petitioner has thus committed the offences u/s.323, 324 and 326 IPC. With the above allegation crime No.33/2000 was registered in the Kattakada Police Station. 3. After the investigation, a report was filed in the above crime, upon which cognizance was taken by the Judicial First Class Magistrate, Kattakada and instituted C.C.No.293/2000. During the trial, Pws.1 to 11 were examined from the side of the prosecution and Exts.P1 to P8 and P1(a) and (b) were marked. No evidence was adduced from the side of the defence. During the 313 examination, the accused denied all the incriminatory evidences which brought out during the prosecution evidence and the specific plea taken by the accused is to the effect that the Crl.R.P.No.2594 of 2010 -: 3 :- prosecution witnesses attacked him and he sustained injuries and thus, he denied the entire prosecution allegation. The trial court finally found that the accused is guilty u/s.323, 324 and 326 of IPC and accordingly he is sentenced to undergo simple imprisonment for three months, one year and two years respectively for the said offences. Besides the substantive sentence of imprisonment, the learned Magistrate also ordered to pay compensation of Rs.25,000/-, 10,000/- and 5,000/- respectively to Pws.1 to 3 u/s.357(3) of Cr.P.C. and the default sentence is fixed as 6 months simple imprisonment. 4. Though an appeal was preferred at the instance of the revision petitioner, by judgment dated 30.4.2010 in Crl.A.No.705/2007, the Court of Addl. District & Sessions Judge, Fast Track Court-II, Thiruvananthapuram dismissed the appeal confirming the conviction and sentence imposed by the trial court. It is the above conviction and sentence are challenged in this revision petition. Crl.R.P.No.2594 of 2010 -: 4 :- 5. I have heard the learned counsel appearing for the revision petitioner as well as the learned Public Prosecutor and also the learned counsel appearing for respondents 2 to 4. 6. At the outset, it is to be noted that along with the revision petition, the petitioner has produced Annexure-A, B and C affidavits respectively of respondents 2 to 4, wherein, it is stated that the contesting parties are close relatives and the matter has been settled out of court and the injured has no further grievance and they are not proposed to prosecute the matter further. All the offences involved in this case are non compoundable offences and therefore the compromise arrived on by the parties cannot be considered for disposal of this revision petition. 7. Going by the evidence and materials on record, it can be seen that the parties are not totally strangers, the accused is conducting a paulty farm in his property and PW1 and family is residing adjacent to the property of the Crl.R.P.No.2594 of 2010 -: 5 :- revision petitioner. It is also beyond dispute that the waste from the paultry of the accused used to taken away by crows and also pet dog of PW1 and as a result of which there were frequent quarrel between the accused on one side and the injured on the other side. It is also relevant to note that the main evidence relied on by the prosecution to substantiate the charge against the accused is that of Pws.1, 2, 3, 5, 8 and 9. PW2 is the son of PW1 and PW3 is the wife of PW1. PW5 is none other than the brother-in-law of PW1. So the prosecution witnesses are close relatives and their evidence has to be evaluated with a caution. 8. In this case, it is relevant to note that during the 313 statement of the accused, he has a specific case that the alleged incident was taken place in the property belonging to him and he had also sustained injuries. Ofcourse, no separate evidence is adduced to show that he had sustained any serious injuries. But it is relevant to note that PW6 is the person who removed the injured to the Crl.R.P.No.2594 of 2010 -: 6 :- hospital but the court reluctant to rely the evidence of PW6 and he was declared hostile. When PW6 was examined he had deposed regarding the incident and it is also stated that the incident was taken place in the property of the accused and PW6 further stated that he had seen Pws.1 and 2 attacking the accused. The trial court was correctly held the evidence of PW6 supports the prosecution case to the effect that there was some unwarranted incident at the place of occurrence. But it is relevant to note that the witnesses other than Pws.1 to 3 and 6 supported the prosecution case is Pws. 8 and 9. But it is pertinent to note that the presence of Pws.8 and 9 not mentioned by Pws.1 to 3 or 5 in their 161 statement. So on execution, the evidence of Pws.1 to 3, the only available independent evidence is that of Pws.8 and 9 and their evidence cannot be taken into consideration as such because the injured witnesses never stated about the presence of Pws.8 and 9. PW6 is the witness who taken the injured to the hospital and he has Crl.R.P.No.2594 of 2010 -: 7 :- stated that the accused was attacked by Pws.1 and 2 and that incident was taken place in the property of the accused. In these circumstances, the statement given by the accused u/s.313 has become relevant, who had sustained minor injuries. If that be so, the question to be decided is who is the real aggressor, whether the prosecution witness or the accused. Regarding these aspects, there is no independent evidence at all. In the absence of any cogent and convincing evidence as to how the incident was originated and who is the aggressor, I am of the view that the trial court as well as the lower appellate court is incorrect in not extending the benefit of doubt in favour of the revision petitioner in the absence of any evidence regarding the incident and who is the aggressor. Therefore, I am of the view that the revision petitioner is entitled to get the benefit of doubt as the prosecution has miserably failed to substantiate the allegation with cogent and satisfactory evidence against the revision petitioner. Crl.R.P.No.2594 of 2010 -: 8 :- Consequently, the judgment of the trial court as well as the lower appellate court are liable to be set aside and consequently the revision petitioner is entitled to get an acquittal of all the charges levelled against him. In the result, this revision petition is allowed, setting aside the judgments of the courts below and also setting aside the conviction and sentence imposed against the revision petitioner as per the above judgment and accordingly the revision petitioner is acquitted of all the charges levelled against him and he is set at liberty. Crl.Revision Petition is allowed accordingly. V.K.MOHANAN, JUDGE. Jvt