IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 Crl.Rev.Pet.No. 1104 of 2003() ------------------------------ CRA.55/2002 of ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA SC.65/2000 of ASSISTANT SESSIONS COURT, KATTAPPANA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SIMON S/O.JOSEPH, THEKKEDATHU HOUSE, VAKAPPADI BHAGAM, VAZHAVARA KARA, KATAPPANA VILLAGE. BY ADV. SRI.A.X.VARGHESE RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1104 OF 2003 --------------------------------------------- Dated 21st July, 2010 O R D E R Petitioner was tried by Assistant Sessions Judge, Kattappana for the offence under Sections 307, 326 and 294(b) of Indian Penal Code in S.C.65/2000. He was found not guilty for the offence under Section 307 and was acquitted for that offence. He was found guilty and convicted and sentenced for the offences under Section 294(b) and 326 of Indian Penal Code. Appellant challenged the conviction before Sessions court, Thodupuzha in Crl.A.55/2002. Learned Additional Sessiosn Judge on re-appreciation of evidence confirmed the conviction but modified the sentence to imprisonment for two years. CRRP 1104/03 2 Conviction for the offence under Section 294(b) was set aside. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. Argument of the Learned counsel appearing for the revision petitioner is that courts below did not properly appreciate the evidence. It was pointed out that evidence of Pws.3 and 4 who were examined as eye witnesses were disbelieved by both the courts and based on the evidence of PW1 wife and PW2 husband, petitioner was convicted. It was argued that PW1 could not have witnessed the incident and therefore, her evidence should not have been relied on. It was argued that evidence of PW1 is also not trustworthy and evidence establish that there was civil dispute between parties CRRP 1104/03 3 and PW2, the injured was attempting to construct a compound wall and thereby destroy the right of way available to the petitioner which was resisted by him and then there was scuffle and during that scuffle both petitioner and PW2 had fallen and injuries sustained by PW2 were not inflicted by the petitioner, but were caused in the fall. It is therefore, argued that conviction is not sustainable. It was also pointed out that there was delay in reporting the incident to the police, as Ext.P1 FI statement was furnished only on the next day and it reached the court day after its registration and in such circumstances, evidence of Pws.1 and 2 should not have been accepted as admittedly there was enmity between the parties. In such circumstances, learned counsel argued that conviction is not sustainable. CRRP 1104/03 4 4. Learned Public Prosecutor submitted that delay in reaching Ext.P1 FI statement before the court by itself is not a ground to interfere with the conviction, so long as the evidence of the ocular witness is trustworthy and reliable and there is no reason to disbelieve the evidence of PW2, the injured or his wife PW1 and in such circumstances, the conviction and sentence warrant no interference. 5. Prosecution case is that PW1 along with PW2 her husband were residing in the house adjacent to the property of the petitioner. On 7/6/1999 at about 4 p.m PW2 was working in his property by putting stones in the demarcating boundary. Petitioner came there with MO.1 spade and uttering obscene words assaulted PW2 by hitting on his head with MO.1 spade and also inflicted injuries on PW2 by CRRP 1104/03 5 using MO.1. PW2 was first taken to District Hospital Pynavu from where Dr.Geetha whose signature in Ext.P3 wound certificate was identified by PW12, the doctor, examined him and prepared Ext.P3 wound certificate and referred him for better treatment to St.John's Hospital, Kattappana. In Ext.P8 wound certificate doctor recorded that alleged cause of injury disclosed to him was assault by a known person. PW2 was examined by PW6 the doctor from St.John's Hospital and prepared Ext.P3 wound certificate and he was treated there as an inpatient. PW1 lodged Ext.P1 FI statement based on which crime No.225/1999 of Kattappana Police Station was registered for the offence under Sections 307, 326 and 294(b) of Indian Penal Code. After investigation final report was submitted before Judicial First Class Magistrate, Kattappana who committed the CRRP 1104/03 6 case to the Sessions court as per order in C.P.15/1999. When charge was framed for the offences, petitioner pleaded not guilty. Prosecution examined twelve witnesses and marked eight exhibits and identified MO.1. On the side of petitioner Exts.D1 to D6 including Exts.D3 to D5 portions of the statement of PW4 recorded under Section 161 were marked. Learned Assistant Sessions Judge on the evidence though disbelieved evidence of Pws.3 and 4 relied on the evidence of Pws.1 and 2. Learned Assistant Sessions Judge also accepted the same. Argument of the learned counsel is that Ext.P1 FI statement shows that there were three other witnesses and none of them were examined and presence of PW1 was not mentioned by PW2 and in such circumstances, evidence of PW1 should not have been relied on. It was argued that evidence of PW1 establish that there was push CRRP 1104/03 7 and pull and both PW2 and petitioner had fallen on the ground. Evidence of PW6 establish that injuries sustained by PW2 could also be caused by a fall and that portion of the body came into contact with a sharp edged weapon. In such circumstances, petitioner is at least entitled to the benefit of doubt. 6. Learned counsel would argue that as per evidence of PW1 on the same day of the incident after PW2 was taken to the hospital, PW1 had lodged a written complaint before the police and if that be so, Ext.P1 cannot be the FI statement and the real first information statement was suppressed by the prosecution. It is therefore, argued that prosecution case should not have been accepted by the courts below. 7. Ext.P1 FI statement of PW1 was recorded by the Head Constable only on the CRRP 1104/03 8 evening of 8/6/1999. The incident occurred on 7/6/1999 at 4 p.m. There is force in the statement of learned counsel appearing for the petitioner that in the light of evidence of PW1, Ext.P1 cannot be the FI statement. Evidence of PW2 is to the effect that after injured PW2 was taken to the hospital, PW1 had given a written complaint before Kattappana Police, narrating the details of the incident. Though learned Public Prosecutor submitted that no action was taken on said statement, if such a statement was given, it should be the first information and not Ext.P1. If the evidence of PW1 is to be accepted, it is to be taken that, that first information statement was suppressed. 8. Delay in submitting Ext.P1 FI statement is to be appreciated in this background. As rightly pointed out by the CRRP 1104/03 9 learned counsel appearing for the petitioner there is no explanation in Ext.P1 for the delay. Though Ext.P1 statement shows that three other persons named therein were eye witnesses, none of them were examined. Only the wife of the injured, who claims to have been an eye witness, was examined. It is doubtful, whether PW1 was present when the incident occurred. There is contradictions on the genesis of the incident disclosed by Pws.1 and 2. According to the evidence of PW1 while PW2 was putting stones on the boundary between property of the petitioner and PW2, she was standing nearby him. Petitioner then came there carrying a spade and questioned PW2 as to why he is doing it. According to PW1 when PW2 disclosed that he is only putting stones at the boundary, petitioner getting infuriated hit on his head with one MO.1 spade stating that he will not CRRP 1104/03 10 permit the way to be blocked. But the case of PW2 is different. PW2 did not say that his wife was there when the incident occurred. PW2 deposed that while he was putting stones in the boundary of the property all of a sudden petitioner rushed to the spot from his house armed with spade and then hit on him. According to PW2 there was no enmity between him and PW2 with regard to the way. He also deposed that he does not know whether petitioner has any dispute on the way. If that be the case, if PW1 was present at the scene, she would not have deposed that the incident occurred when petitioner questioned PW2 regarding construction of wall blocking the way. That itself is sufficient to disbelieve the evidence of PW1 with regard to genesis of the incident. 9. Added to this, evidence of PW1 shows that when PW2 was questioned by petitioner, CRRP 1104/03 11 there was push and pull between them and both PW2 and petitioner fell on the ground. But PW2 had no such case. Evidence of PW2 is therefore, contradicted by PW1. Evidence of PW6 the doctor with Ext.P3 wound certificate establish that injuries found on the body of PW1 could have been caused by a fall also. In such circumstances, possibility of PW2 sustaining the injuries in a fall, consequent to the scuffle cannot be ruled out. 10. When the entire facts are appreciated in the proper perspective, it is clear that first information with regard to the incident as claimed by PW1, was suppressed. Eye witnesses mentioned in Ext.P1 statement were not examined. The possibility of PW2 sustaining the injuries in a fall and that part of the body coming into contact with a weapon like MO.1 and cannot also be ruled out. In any case, CRRP 1104/03 12 petitioner is entitled to get the benefit of reasonable doubt. In such circumstances, conviction of the petitioner for the offence under Section 326 of Indian Penal Code can only be set aside granting benefit of doubt to the petitioner. Revision is allowed. Conviction of the petitioner for the offence under Section 326 of Indian Penal Code by Assistant Sessions Judge, Kattappana as confirmed by Additional Sessions Judge (Adhoc-I), Thodupuzha is set aside. Petitioner is found not guilty of the offence under Section 326 of Indian Penal Code. He is acquitted. M.SASIDHARAN NAMBIAR, JUDGE. uj.