IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 Crl.Rev.Pet.No. 796 of 2002() ------------------------------------------- CRA.NO. 117/1997 of SESSIONS COURT, TRIVANDRUM CC.NO. 521/1993 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ---------------------------------------------------------------------- 1. SIVANANDAN, S/O.PADMANABHAN, KOTTARAMVILA VEEDU, VENJARAMOODU, MUDAKKAL MURI, NELLANADU VILLAGE. 2. VIDHYADHARAN, S/O.PADMANABHAN, KOTTARAMVILA VEEDU, VENJARAMOODU, MUDAKKAL MURI, NELLANADU VILLAGE. 3. MOHANDAS, S/O.PADMANABHAN, KOTTARAMVILA VEEDU, VENJARAMOODU, MUDAKKAL MURI, NELLANADU VILLAGE. BY ADV. SRI.R.RAMADAS RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.796 of 2002 --------------------------------- Dated this the 26th day of August 2011 O R D E R The three accused persons who were found guilty of the offence punishable under Secs.323 and 324 r/w Sec.34 IPC are the revision petitioners. Though they were convicted by the learned Magistrate, they were released on probation of good conduct for a period of two years on their entering into a bond for Rs.5,000/- each. They were also directed to pay Rs.1,500/- each as compensation. Their appeal before the learned Sessions Judge was dismissed. The revision petitioners challenge the same in this revision petition. 2. The case of the prosecution is that on 14.4.1993 at about 8.30 PM after closing the shop of PW1 when PWs.1 to 3 were walking through the public road, the accused suddenly attacked them with iron rod, pen knife etc. and Crl.R.P. No.796 of 2002 -: 2 :- caused injuries to PW3. They went to the hospital where they were examined by the doctor. On the next day the police recorded Ext.P1 the F.I.Statement, on the basis of which PW8, the Head Constable registered Ext.P6 F.I.R. The investigation was conducted by PW9 and charge sheet was laid against them. PWs.1 to 9 were examined and Exts.P1 to P7 were marked. 3. The accused contended that this is a false case framed against them as there was property dispute between them. The learned counsel for the petitioners would submit that the courts below did not appreciate the evidence properly. There are material contradictions in the evidence given by PWs.1 to 3 which would improbabilise the prosecution version. The fact that there was suppression of F.I.R was not considered by the courts below. It is also argued that though the case of the prosecution is that A1 beat on the head of PW1 with iron rod and A2 stabbed PW1 with a pen knife on his back no corresponding injuries could Crl.R.P. No.796 of 2002 -: 3 :- be seen by PW5, the doctor. Those factors would itself unravel the fallacy of the prosecution case, the learned counsel submits. The learned Public Prosecutor would submit that there is a concurrent finding by the two courts below that there was an incident at the time and place as alleged by the prosecution and that PW1 had sustained injuries and so sitting in revision the concurrent finding entered by the courts below cannot be reversed. 4. The learned counsel for the petitioners would submit that PW3 did not fully support the prosecution and so he was cross examined by the learned Prosecutor. Though PW3 was cross examined by the learned Prosecutor that part of the evidence given by PW3 to the extent it supports the prosecution can be relied upon. But the crucial question is whether PW1 was beaten with iron rod on the head and other parts of the body. Though in the last portion of the chief examination PW2 stated that the accused did not commit any offence it seems it was not a Crl.R.P. No.796 of 2002 -: 4 :- correct version which he intended to convey. His evidence is to the effect that the accused used iron rod and pen knife as mentioned above. 5. Exts.P2 to P4 are the three wound certificates of PWs.1, 3 and 2 respectively. They were examined by the doctor at 9.30 PM. PW1 had sustained a lacerated injury 1 x 0.5 x 0.5 cm on the vertex of the scalp. No other injury was noticed. Had he been stabbed with a pen knife on his back then certainly there would have been an incised injury even though it may not be so deep. No injury was found on the back of PW1. Similarly if he had been beaten with an iron rod then certainly it would have produced serious injury even if fracture may not have been caused. In the two other certificates relating to PW2 and PW3 it was noted that there was tenderness on the occipital Region. Here also, the learned counsel is right in his submission that had they been beaten with iron rod then certainly some visible injury would have been found on their body. The Crl.R.P. No.796 of 2002 -: 5 :- conspicuous absence of such an injury would go a long way against the case put forward by the prosecution. It is true that PWs.1 to 3 were examined by the doctor within 1 – 1.30 hour of the incident. But they did not tell the names of the assailants to the doctor. Though it is not mandatory, that also is taken advantage of by the learned counsel for the accused to fortify his submission that the case as presented by the prosecution was not the real incident, for, otherwise, PWs.1 to 3 would have certainly mentioned the names of the assailants and corresponding injuries also would have been found on their body. Therefore, the allegation made by PWs.1 to 3 that the accused attacked them with iron rod and pen knife appears to be unbelievable. Then the next question is whether PWs.1 to 3 were actually attacked by A1 to A3. In this connection, the learned counsel would submit that the evidence given by PWs.1 to 3 is clear that the police station is hardly 100 meters away from the place of incident and they had in fact gone to the police station, Crl.R.P. No.796 of 2002 -: 6 :- the statement of the injured was recorded by the Head Constable and it was signed by PW1 and thereafter a requisition/ letter was given by the Head Constable to the doctor and it was only thereafter they went to the hospital. That consistent statement of PWs.1 to 3 could not be explained by the prosecution. If so, the learned counsel is perfectly justified in his submission that there was suppression of F.I.R. If the statement first in point of time was suppressed then certainly court has to view the entire evidence with suspicion, the learned counsel submits. The learned counsel further submitted that since these aspects were not considered in its correct perspective this Court would be perfectly justified in interfering with the finding of guilt entered by the courts below. 6. It is true that the inconsistencies in the evidence of PWs.1 to 3 as to the manner in which they were attacked may not be of that much significance since it will not be possible for the witnesses to remember with exactitude the Crl.R.P. No.796 of 2002 -: 7 :- role played by each of the assailants. The learned counsel submits that there is also discrepancy in the scene of occurrence also. When one witness says that it is only about 10 meters away from the junction another witness says that it is 100 meters away and the third witness says that it was at another place. Of course, it can be said that the difference in the distance pointed out by the witnesses may be only approximate and so that alone may not affect the case of the prosecution but on an overall assessment, that also say assume significance. 7. It is further pointed out that PWs.1 and 2 are brothers and PW3 is their close friend or associate. Independent witnesses did not support the prosecution. That also has to be considered in the factual backdrop of this case, the learned counsel submits. It is a case where a portion of the story put forward by the prosecution is found to be not fully acceptable. When that is coupled with the suppression of F.I.R the accused can legitimately contend Crl.R.P. No.796 of 2002 -: 8 :- that the case presented by the prosecution was not wholly true and as such it can create suspicion in the mind of the court. It is further submitted that A1 to A3 were public servants and so it was in order to cause hardship to them especially with regard to their employment this case was foisted by PWs.1 and 2. Whatever that be, in the light of the evidence and circumstances pointed out, I find that the accused are entitled to be given benefit of reasonable doubt and as such the finding of guilt entered against them is set aside. In the result, this Crl.R.P is allowed. The judgment of conviction is set aside. They are set at liberty. The bail bonds executed by them if any will stand discharged. N.K.BALAKRISHNAN, JUDGE. Jvt