IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 Crl.Rev.Pet.No. 1332 of 2002(B) -------------------------------------------- [CRL.A.NO.492/2000 OF ADDL.SESSIONS COURT,NORTH PARAVUR, SC.NO.227/1998 OF ADDL.ASSISTANT SESSIONS COURT, PARAVUR] .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- SANTHOSH @ GOPAKUMAR, S/O. RAGHAVAN PILLAI, AMBIKA VILASAM, RAYAMANGALAM. BY ADVS. SRI.B.RAMAN PILLAI, SRI.GEORGE PHILIP, SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN, SRI.ANIL K.MOHAMED. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.S.GOPINATHAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Crl.R.P. No. 1332 of 2002 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5th day of April, 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ O R D E R The Additional Assistant Sessions Judge, Paravoor in S.C. No.227/1998 convicted the revision petitioner for offence under Section 307 of Indian Penal Code and sentenced to simple imprisonment for five years and a fine of Rs.5,000/- with a default sentence of simple imprisonment for three months. Feeling aggrieved, he preferred Crl.Appeal No.492/2000 before the Additional Sessions Judge, North Paravoor. The lower appellate court by judgment dated 24.7.2002 found that, with the materials on record, offence under Section 325 IPC alone was disclosed. Consequently, the conviction was altered to one under Section 325 IPC and sentenced to simple imprisonment for 3 years and a fine of Rs.5,000/- with a default sentence of simple imprisonment for 3 months. Assailing the legality, correctness and propriety of the above conviction and sentence, as modified in appeal, this Crl.R.P. No. 1332 of 2002 2 revision petition was filed. 2. PW10, the Circle Inspector of Police, Kuruppampady police station prosecuted the revision petitioner with an allegation that, at 7.00 pm on 27.12.1995, the revision petitioner attempted to commit murder of PW2, the neighbour of the revision petitioner by beating at the head of PW2 with a spade which was marked as MO1. As a result of the assault, PW2 sustained severe injury including depressed fracture on the head. She was first taken to Dharmagiri Hospital by PW1, her daughter and other neighbours who gathered on the spot of occurrence. From Dharmagiri hospital, she was referred to a major hospital and was brought to Medical Trust Hospital, Ernakulam where she was treated. Intimation was conveyed to the Station House Officer, Kuruppampady police station. PW8, a Head Constable, attached to Kuruppampady police station proceeded to the Medical Trust hospital and recorded Ext.P1, the first information statement given by PW1, who is a witness to the occurrence. On the basis of Ext.P1, PW8 registered a Crl.R.P. No. 1332 of 2002 3 case as crime No.346/95 for offences under Section 307 of IPC by Ext.P6 first information report. The investigation was taken over by PW9, the predecessor of PW10. Later, it was taken over PW10, who after investigation, filed a final report before the Judicial Magistrate of the First Class, Perumbavoor, where it was numbered as C.P.No.16/98. The learned Magistrate, on finding that the offence alleged is triable by a Court of Session, after complying with the requisite procedures, committed the case to the Court of Session, Ernakulam. From there it was made over to the Assistant Sessions Judge, North Paravoor. The learned Assistant Sessions Judge on satisfying that there are materials to send the revision petitioner for trial for offence under Section 307 IPC, framed a charge to which the revision petitioner pleaded not guilty. Hence, the revision petitioner was sent for trial. On the side of the prosecution, PWs 1 to 10 were examined. Exts.P1 to P9 and Mos. 1 to 3 were marked. After closing the evidence for the prosecution, the revision Crl.R.P. No. 1332 of 2002 4 petitioner was questioned under Section 313 of the Code of Criminal Procedure. He took up a defence of total denial and further contended that the case was falsely foisted due to previous enmity and that PW2 sustained injury when she fell over a granite stone in the cattle shed. Responding to the call to enter on his defence evidence, one witness was examined as DW1 to depose that CW3 told him that PW2 had sustained injury due to fall over a granite stone. The learned Assistant Sessions Judge on appraisal of the evidence arrived at a finding of guilty. Consequently the revision petitioner was convicted and sentenced. 3. The evidence of PWs 1 and 2 supported the prosecution. They are harmonious that there was a pit behind cattle shed of PW2 and that at about 7 pm on 27.12.1995 when PW2 went to the cattle shed for feeding the cow, the revision petitioner was found reclaiming the pit with a spade which was marked as MO1 and seeing that PW2 asked not to reclaim the pit dug for draining waste water from the cattle Crl.R.P. No. 1332 of 2002 5 shed. Stating that PW2 would be buried in the pit, she was cut at the head with MO1 and thereby PW2 sustained injury. The evidence of PWs.1 and 2 mutually corroborate in material particulars. Their evidence also corroborate with Ext.P1 first information statement given by PW1. 4. The learned counsel for the revision petitioner would contend that, since there is no independent witness, the conviction under challenge based upon the interested testimony is not sustainable. The very same contention was urged before the appellate court also. The appellate court had a very careful scrutiny of the evidence of PWs.1 and 2 which is supported by Ext.P1 first information statement. The appellate court rejected the contention of the revision petitioner and concurred with the trial court that the injury was inflicted by the revision petitioner with MO1 spade. The evidence of PW6, the medical officer attached to the Medical Trust Hospital, Ernakulam, would show that PW2 was brought to the hospital with a lacerated injury measuring 7 x 2 x 2 Crl.R.P. No. 1332 of 2002 6 centimetres on the left frontal area with a compound depressed fracture of the underlying bone through which the brain matter was visible. X-ray confirmed the depressed fracture. He had further deposed that the injury could be caused with a weapon like MO1 spade. He had stated in the cross examination that the injury could be caused by blunt weapon. It was contended before the appellate court as well as this Court that MO1 is a sharp edged one and so depressed fracture could not be caused with MO1. However, it is not disputed by the learned counsel for the revision petitioner that MO1 had blunt portion. So there is every possibility for causing the injury found on PW2 with MO1. Though PW6 was subjected to searching cross examination no material was disclosed to disbelieve him. The evidence of PWs.1 and 2 corroborate with the medical evidence. The very defence case is that PW2 fell on granite stone in the cattle shed. But there is no evidence to show that there was loose granite stone in the cattle shed or that the accident occurred at the cattle Crl.R.P. No. 1332 of 2002 7 shed. So the courts below were right in rejecting the defence version. As against the concurrent finding of fact, I find little reason to interfere with the oral evidence supported by medical evidence. It is pertinent to note that the incident was at 7 pm near the cattle shed of PW2. PW2 and revision petitioner were residing very close. PW1 is a very natural witness. There is no case for the revision petitioner that there were any independent witness. There is nothing revealed to show that the revision petitioner was falsely implicated. If the story spoken by DW1 is correct, the revision petitioner would have examined CW3 instead of DW1. So also, the revision petitioner, being a neighbour would have taken PW2 to the hospital. Revision petitioner has no such case. That circumstance leads to an inference against the revision petitioner. Corroboration is only a rule of prudence and not rule of evidence. If the evidence of injured or her daughter instil confidence, the conviction is sustainable. 5. The revision petitioner had advanced a contention Crl.R.P. No. 1332 of 2002 8 that at 7 p.m there would be darkness and that there is little evidence to conclude that light was available so as to enable PWs 1 and 2 to identify the assailant and the weapon. That contention was also rejected by the courts below obviously for the reason that it may not be much dark at 7 pm because the sun set on that day was at 6.08 pm and it was the 6th day from new moon day. It is also pertinent to note that the revision petitioner being a neighbour was very familiar to PWs 1 and 2. The incident being 52 minutes after sunset and on the 6th day from new moon day, there would be sufficient light to identify the assailant and MO1 spade even if there is no electric light. Adding to that, PWs 1 and 2 had deposed that there were electric lights in front of the house of the revision petitioner and PW2. PW3, who had come to the spot on hearing the cry of PW2 hsad also given evidence regarding the availability of electric light as well as moon light. Their evidence is convincing. In the above circumstances, the courts below rightly rejected the defence version and it is no Crl.R.P. No. 1332 of 2002 9 way vitiated by any impropriety or error. 5. It was also contended that the injured was first taken to Dharmagiri Hospital and that an intimation might have been conveyed to the police but no document was brought in evidence. However, the evidence of PW6 would show that PW6, who was working as Medical Officer in Medical Trust Hospital, Ernakulam, examined PW2 at 9.45 pm. The incident was admittedly at 7 pm. In the meanwhile, PW2, who had severe injuries was first taken to the Dharmagiri hospital and from there she was conveyed to Medical Trust Hospital, Ernakulam. There is no material on the record to show that there was any statement given by PW2 either at Dharmagiri hospital or at any police station before being taken to the Medical Trust Hospital. In the above circumstance, there is little reason to reject Ext.P1 or to conclude that Ext.P1 is not the first information statement. 6. The appellate court had very well appreciated the evidence on record and arrived at a finding that it was none Crl.R.P. No. 1332 of 2002 10 other than the revision petitioner who had inflicted the injury mentioned earlier at the head of PW2 with MO1 spade. 7. From the evidence of PWs 1, 2 and 6 supported by Ext.P1 and P4, I find that in fact there is sufficient evidence on record to establish the intention of the revision petitioner as well as the deadly nature of MO1. The words uttered by the revision petitioner, which is mentioned earlier would show that in fact the intention of the revision petitioner was to murder, rather than to inflict injury. However, the lower appellate court found that the intention to commit murder was not proved and that only an offence under Section 325 IPC was established. Even if the prosecution could not establish the intention to commit murder, MO1, being a deadly weapon and having regard to the nature and place of injury, there is sufficient material to establish offence under Section 326 IPC and not 325 IPC. However, taking note that the prosecution had not preferred any revision, I leave open that aspect and find that commission of offence under Section 325 Crl.R.P. No. 1332 of 2002 11 IPC is beyond dispute. 8. The revision petitioner is reportedly a driver by profession. There is nothing on record to show that PW2 was the aggressor or that she was armed with any weapon. PW2 was assaulted only for the reason that she objected reclaiming the pit dug by her in her property. In this view of the matter, I find that the sentence awarded by the appellate court is neither harsh nor disproportionate so as to interfere in exercise of the revisional powers. The revision petition is devoid of merits. Accordingly it is dismissed. Revision petitioner shall surrender before the trial court for execution of the sentence. Bail granted is hereby cancelled. Trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN JUDGE nl