IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 Crl.Rev.Pet.No. 1270 of 2001() ------------------------------ CRA.50/1996 of SESSIONS COURT, KALPETTA SC.95/1995 of ASSISTANT SESSIONS COURT, SULTHAN BATHERY .................... REVN. PETITIONERS: --------------------- 1. KRISHNAN, S/O.KESAVAN NAIR, MALAMKOLLY,THOMATTUCHAL AMSOM, WAYANAD DISTRICT. 2. MEENAKSHIAMMA, W/O.KESAVAN NAIR, KARINGAMPOIL VEEDU, THOMATTUCHAL AMSOM, WAYANAD DISTRICT. 3. LEELA, W/O.KRISHNAN, KARINGAMPOIL VEEDU, THOMATTUCHAL AMSOM, WAYANAD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------------------ C.R.R.P.No.1270 of 2001 ----------------------------------------- Dated this the 7th day of September, 2009 ORDER The revision petitioners are the accused in S.C.No.95/95 on the file of the Assistant Sessions Judge, Sulthanbathery. PW11, Circle Inspector of Police, Meenagadi filed a charge sheet against the revision petitioners before the Judicial Magistrate of the First Class, Sulthanbathery alleging offence under Section 341, 506(1), 323 & 304 r/w 34 I.P.C. On finding that the offence alleged is exclusively triable by a court of section, the learned magistrate committed the case to the court of sessions, Kalpatta from where it was made over to the Assistant Sessions Judge, Sulthanbathery. The learned Assistant Sessions Judge after hearing the prosecution and the accused framed charge for offence under section 341 and 323 r/w 34 I.P.C. against all the revision petitioners and for offence under Section 304 I.P.C. against the first revision petitioner. The revision petitioners pleaded not guilty to the charge. Hence they were sent for trial. After examining Pws.1 to 11 and marking Exts.P1 to P8 and Mos.1 to 4 series, the revision petitioners were questioned under section 313 of the Code of Criminal Procedure. They took up a C.R.R.P.No.1270 of 2001 2 plea that they were falsely implicated due to previous enmity. During the course of the cross-examination of prosecution witnesses Exts.D1 to D3 were marked. Though called upon to enter the defence, the revision petitioners did not adduce any evidence. 2. The learned Assistant Sessions Judge on appraisal of the evidence arrived a finding that the prosecution had succeeded to establish offences under Section 323 and 304 I.P.C. Consequently, all the revision petitioners were convicted for offence under Section 323 I.P.C. and the first revision petitioner was sentenced to simple imprisonment for one month. Second and third revision petitioners were sentenced to pay a fine amount of Rs.1,000/- with a default clause to under go simple imprisonment for a period of 3 months. Further, the first revision petitioner was convicted and sentenced to rigorous imprisonment for 5 years for offence under section 304 I.P.C. 3. Aggrieved by the above conviction and sentence, the revision petitioners filed Criminal Appeal No.50 of 1996 before the Sessions Judge, Wayanad. The learned Sessions Judge arrived a finding that the prosecution had not succeeded to C.R.R.P.No.1270 of 2001 3 establish the offence under Section 304 I.P.C against the first revision petitioner. Whereas there is convincing evidence to sustain the conviction under Section 323 I.P.C. against all revision petitioners. Consequently the appeal was allowed in part. While setting aside the conviction and sentence under section 304 I.PC. as against the first revision petitioner, the conviction and sentence under section 323 I.P.C. against the revision petitioners were confirmed. Now challenging the legality, correctness and propriety of the conviction and sentence as modified in appeal, this revision petition was filed. 4. The learned counsel for the revision petitioner as well as the public prosecutor is heard. Sri.Kaleeswaram Raj, learned counsel for the revision petitioners vehemently argued that since the lower appellate court had rejected a portion of the prosecution case and acquitted the first revision petitioner for offence under section 304 I.P.C, the lower appellate court should have rejected the evidence as regards offence under section 323 I.P.C. also. According to the counsel when a portion of the evidence is found not believable it goes without saying that the remaining portion of the evidence is also not believable. Having C.R.R.P.No.1270 of 2001 4 gone through the impugned judgment of the appellate court I am unable to accept the argument advanced by the learned counsel for the revision petitioner. While analysing the evidence, it is quite appropriate to accept the evidence so far as credible. It is not at all advisable to reject the entire evidence for the reason that a portion is not believable. There is every possibility for exaggerations and embellishments in evidence. Exaggerations and embellishments would be rejected. Grain and chaff would be sifted out in the process for searching the nuggets of truth. Only the credible part of evidence would be accepted to enter a conviction. That is what the appellate court had rightly done. Reasoning given by the appellate court for setting aside the conviction under Section 304 I.P.C. is distinct and separate. It no way affects the finding regarding the offence under Section 323 I.P.C. 5. The evidence of Pws.1 and 5 coupled with Ext.P1 First Information Statement would show that as alleged by the prosecution at 6.30 p.m. on 7/7/1994 while PW1, Padmavathy and PW5 Sheeba were proceeding to the bathing ghat near Malamkolly Canal, the second and third revision petitioners, C.R.R.P.No.1270 of 2001 5 mother-in-law and daughter-in-law assaulted PW5 alleging that PW5 had spread scandals against the grand daughter of the second revision petitioner. PW1, when interfered she was also assaulted by both. Hearing the hue and cry deceased Narayanan rushed to rescue PW1 and 5. Thereupon the first revision petitioner kicked twice at the abdomen of Narayanan. As a result he fell down and breathed his last. 6. Information was conveyed to Ambalavayal Police Station. A Head Constable rushed to the spot of occurrence and recorded Ext.P1, First Information Statement given by PW.1 at 8.30 p.m. The evidence of Pws.1 and 5, in all material particulars corroborate with Ext.P1. The courts below had found that the evidence of Pws.1 and 5 supported by Ext.P1 are credible. The learned counsel for the revision petitioner could not point out any material to disbelieve the evidence of Pws.1 and 5 regarding the assault. I find that the concurrent finding of the courts below regarding the assault by the revision petitioners against Pws.1 and 5 and as against deceased Narayanan is free from any contradiction. The learned counsel for the revision petitioners submitted that being a Village area there is every C.R.R.P.No.1270 of 2001 6 likelihood of neighbors hearing and witnessing, but none of them were examined. It is fatal to the prosecution. It was also submitted that even as per Ext.P1, one Johny chettan and Gangadevi had rushed to the spot, but both of them were not examined. A careful reading of Ext.P1 would show that in fact, those 2 persons mentioned by the learned counsel reached the spot only after the assault. There is nothing on record to conclude that any other person had actually witnessed the assault alleged by the prosecution. In the above circumstance, I find that non-examination of the independent witness is not at all fatal to find against the prosecution. The crucial question is whether the evidence of Pws.1 and 5 are credible. As mentioned earlier, the courts below had concurrently found that the evidence of Pws.1 and 5 are credible. I find no reason to interfere with that finding in exercise of the revisional powers. 7. The conviction and sentence imposed against the first revision petitioner for offence under Section 304 I.P.C. was interfered by the lower appellate court for the reason that Ext.P8, post-mortem certificate issued by PW9 disclosed that the death was due to Coronary Artery Occlusion. The trial court C.R.R.P.No.1270 of 2001 7 arrived a conclusion that the revision petitioners being the neighbours of the deceased they might be aware that the deceased was a heart patient and the deceased was kicked with the knowledge that such assault might cause death of the victim as he was a heart patient. In the absence of evidence regarding the knowledge of heart disease by the first revision petitioner, the lower appellate court rejected the offence alleged under section 304 I.P.C. That finding would no way affect the evidence of Pws.1 and 5 regarding the assault on Pws.1 and 5 and the deceased Narayanan by kicking and beating. The conviction and sentence for offence under section 323 I.P.C. is beyond challenge. 8. While imposing a fine of Rs.1000/- alone against the revision petitioners 2 and 3, the first revision petitioner was imposed simple imprisonment for 6 months. For having such discrimination no reason was stated in the impugned judgment. Some times, it might be on gender consideration. If it was so, the courts below should have mentioned the same. However, having taking into account that only a sentence of fine of Rs.1,000/- alone was imposed against the revision petitioners 2 C.R.R.P.No.1270 of 2001 8 and 3 and due regard to the nature of the assault and taking note of the fact the first revision petitioner had already been in custody for 2 weeks, I find that the said period along with a fine of Rs.1,000/- would be a just and reasonable sentence as against first revision petitioner. The sentence awarded to the other revision petitioners is quite appropriate and requires no interference. In the result, the revision petition is allowed in part. While confirming the conviction under section 323 I.P.C, the sentence awarded against the first revision petitioner is reduced to the period already in custody and a fine of Rs.1,000/-. In default of payment of fine, the first revision petitioner shall undergo simple imprisonment for three months. The sentence awarded as against the revision petitioners 2 and 3 are confirmed. The first revision petitioner is given one month time for remitting the fine. P.S.GOPINATHAN, JUDGE skj.