IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 Crl.Rev.Pet.No. 1758 of 2004() ------------------------------ CRA.158/1996 of I ADDL. SESSIONS COURT, KOLLAM SC.31/1994 of ASSISTANT SESSIONS COURT, KOTTARAKKARA .................... REVN. PETITIONER: APPELLANTS/ACCUSED. ------------------------------------- 1. GETHAVU, S/O.DIVAKARA PANICKER, CHINGCHU BHAVAN, AMBEDKAR COLONY, EDAMON 34, EDAMON VILLAGE. 2. ANIL, S/O.DIVAKARA PANICKER, PADINJATTINKARA VEEDU, TEAK PLANTATION, EDAMON 34, EDAMON VILLAGE. 3. CHANDRAN, S/O.KRISHNAN, ANDOORPUTHAN KARAYIL VEEDU, TEAK PLANTATIONS, EDAMON 34, EDAMON VILLAGE. BY ADV. SRI.B.SURESH KUMAR SMT.C.G.PREETHA SMT.T.V.NEEMA RESPONDENTS: STATE. ------------------- THE STATE OF KERALA,R EP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REP. THE SUB INSPECTOR OF POLICE, THENMALA POLICE STATION. BY PUBLIC PROSECUTORSRI.P.K.RAVIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.1758 OF 2004 ------------------------------------------- Dated this the 7th day of July, 2008 O R D E R The revision petitioners, the three accused of having committed offences punishable under Sections 323, 324, 326 and 307 IPC, were convicted and sentenced on all counts by the court of first instance. The sessions court, in appeal, set aside the conviction under Section 307 IPC and acquitted the 4th accused. 2. The prosecution case in its brief is that, the first accused, on the impression that PW2, then an adolescent, destroyed the illegal arrack stored by him, harboured ill will towards PW2 and had decided to kill him, that accordingly, at about 5 p.m. on 20.1.1993, the accused persons assembled in front of the house of one Syamala, near Edamon. PW1, the mother of PW2 and PW3, his father, were allegedly proceeding to Edamon for certain purchase. PW2 and his friend PW4 were returning from the technical school where they were studying and when they Cr.R.P.1758/04 Page numbers reached the scene of occurrence, the first accused shouted at PW2, questing him as to whether he will throw away the arrack kept by him and consequently, slabbed PW2 on the right cheek and beat him on his back a couple of times, as a result of which, PW2 fell down. When his parents, viz. PWs.1 and 3, intervened to save their son PW2, the second accused is alleged to have beaten PW1 on both her hands with a piece of wood taken from the side of the road. Accused persons 1 and 3 are alleged to have beaten PW3 several times with a piece of wood. It is also stated that PW3 was beaten on his head and the 4th accused fisted PW1 on her back. It is alleged that at that point of time, PW2 got up and accused persons 1 to 3 hit him several times with a wooden piece. 3. Ext.P15 report incorporating Section 326 IPC was sent to the court by PW17, who has admitted that the submission of that report was delayed by five months. PW16, the investigating officer, stated that he had questioned PW2 on 7.12.1993 in the Trivandrum Medical College. It is pointed out on behalf of the Cr.R.P.1758/04 Page numbers accused that the said version contradicts PW14 doctor on the basis of the medical records, that PW2 was discharged on 3.2.1993 from the Medical College. The date of occurrence is 21.1.1993. The alleged incident is at about 5 p.m. On that evening, the injuries on PW2 were noted by the doctor of the Government Hospital, Punalur. PW2 was not admitted to that hospital. He was thereafter asked to go to the Medical College Hospital to rule out head injury and it is stated that from there, he was advised to get medical aid from the Mental Health Hospital, Trivandrum, apparently because PW2 appears to have the problem of epilepsy, going by the different and contradictory statements made by his parents as PWs.1 and 3. I may notice that PW12 did not notice any head injury on PW2. No external injury was noticed on the head. He referred PW2 to the Medical College Hospital to rule out head injury. PW2 was not admitted or treated at the Punalur Government Hospital. Nor was he admitted for any diagnosis of head injury into the Medical College Hospital. Cr.R.P.1758/04 Page numbers 4. PW2 deposed that he did not know the accused previously and PW4 had shown the first accused to him on the previous day and PW4 had told him that the accused persons are going to kill him. Learned counsel for the accused pointed out that this is in contradiction with the statement of PW2 recorded under Section 161 Cr.PC to the effect that accused persons 1 and 2 reside near his house. PW1 stated that she was beaten by the second accused. In cross examination, she stated that accused persons 2 and 3 had beaten her. She admitted that she and her husband PW3 were convicted in a different case, though she attempted to state that the said criminal case was at the instance of the accused persons. Though mother of PW2, she denied that her son had attacks of epilepsy. However, PW3, the father of PW2, admitted that PW2 had attacks of epilepsy and that he, along with his wife, were convicted and the accused persons were known to him for about 10 to 20 years. According to him, the doctor of the Punalur Government Hospital advised that PW2 to be taken to Medical College Hospital on the next day and it was accordingly that PW2 was taken to the Medical College Hospital. Cr.R.P.1758/04 Page numbers 5. PW4 denied having shown the accused persons to PW2 on the previous day, which statement is that one which contradicts PW2. Though he denied the suggestion of the involvement of his father in a criminal case, PW1 had stated about the involvement of PW4's father along with PWs.1 and 3 in a criminal case in which they were convicted. He also vouchsafed that PW2 had attacks of epilepsy. 6. PW6 states that PW1 was beaten by accused persons 2 and 3 and that accused persons 1 and 3 beat PW2. He also vouchsafed that PW2 was taken to the Medical College Hospital only on the next day. 7. With the aforesaid materials on record, it needs to be appreciated whether the evidence was sufficient to conclude on the guilt of the accused persons and to sustain the conviction and sentence. As already noticed, PWs.1 and 3, the parents of PW2, have themselves different versions about the health status of their son. According to PW1, PW2 had no epileptic problem, Cr.R.P.1758/04 Page numbers whereas PW3 states that his son had epileptic attacks. The wound certificate would show that PW2 had certain bruise injuries on the lips which is not attributed, going by the evidence, to any overt act of the accused persons. The oral evidence describing the occurrence would show that PW2 was laying on the floor with face downwards for some time and latter turned to see his parents PWs.1 and 3 being beaten by the accused persons and it was accordingly, that he got up, allegedly, to receive further blows from accused persons 1 to 3. 8. One of the cardinal aspects of the evidence in this case is that PW2 has stated that PW4, his friend, had told him even on the day previous to the alleged occurrence that the first accused, infuriated by the disposal of the illicit arrack, is bent upon killing him and that PW4 had shown the accused persons to him. This is denied by PW4. PW2 is stated to be one of the victims of the transaction. If that be so, the quality of evidence of PW2 has to be further examined and it need to be noticed that if PW2 had, as a matter of fact, been told by PW4 on the day previous to the Cr.R.P.1758/04 Page numbers occurrence that there is a likelihood of him being visited with injuries or death at the hands of the accused persons, there is no reason that PW2, that too, at an adolescent stage, could not be expected to have divulged that information to his parents, PWs.1 and 3, neither among whom has a case to that effect. The common course of human conduct embedding in it, the element of commonsense, forming the foundation of the permissive presumptions under Section 114 of the Evidence Act, is one of the most reliable tools in appreciation of evidence in criminal cases. If PW2 was told by PW4 about his risk of injury or death at the hands of the accused persons and if he had mentioned that fact to PWs.1 and 3, one would not expect PWs.1 and 3 to have taken the alleged occurrence by surprise since they would have always been vigilant in attempting to protect PW2, their child. It also appears to be equally artificial that the three accused persons with a premeditated intention to injure or kill PW2 had waited in the scene of occurrence rather than proceed in search of the victim and still further, to have waited without any weapon, which could be reasonably expected of a Cr.R.P.1758/04 Page numbers person with a premeditated intention to injure or to kill. The objects which are treated as weapons for this case are short slices of wooden planks or pieces available in the neighbourng plot, which are only those which could be treated as such when employed in the purpose of injuring. The delay of five months in placing Ext.P15 report incorporating Section 326 IPC, without any further explanation being given by PW17, also takes away the credence of the allegation that wooden planks or pieces were used as weapons to commit the alleged offences. On the total, the entire evidence on record is insufficient to inspire confidence to sustain the findings of guilt, on the basis of legal evidence, short of which, the conviction and sentence are unsustainable. 9. For the aforesaid reasons, the accused persons were entitled to an order of acquittal at least on the ground of benefit of doubt, which is quite overwhelming on the materials on record. Cr.R.P.1758/04 Page numbers In the result, the conviction and sentence on the revision petitioners are vacated and the revision petition is allowed accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.8/7.