IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 CRL.A.No. 136 of 2003() --------------------------------- SC.381/2000 of SPL . COURT(SESSIONS COURT), MANJERI CP. NO.69/2000 OF THE JUDL. FIRST CLASS MAGISTRATE, MALAPPURAM. .................... APPELLANT(S): ACCUSED: ---------------------- 1. KURUKKANALUNGAL MOIDEENKUTTY, S/O. POKKU, KANNA MANGALAM AMSOM (A1). 2. PARAMBAN SAIDALAVI, S/O. MAMMUTTY, KANNAMANGALAM AMSOM, VALAKKUDA (A2). 3. PULLOTHU ASSAINAR, S/O. ABDURAHIMAN, KANNAMANGALAM AMSOM, VALAKKUDA (A3). BY ADV. MR.P.SAMSUDIN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REP. BY DEPUTY SUPRINTENDENT OF POLICE MALAPPURAM THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.744/2003 IN CRL.A. NO.136/2003 DISMISSED 24/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.136 OF 2003 ------------------------------ Dated this the 24th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence in SC.No.381/2000 of the Sessions Judge, Manjeri. The accused three in numbers were charge sheeted for the offences under Sections 341, 323 and 324 read with Section 34 of IPC and Section 3(1)(x) of SC/ST (PA) Act, 1989. The court below found the accused guilty under Sections 323 and 324 and acquitted the accused under other charges and they were sentenced to pay a fine of Rs. 1,000/= each under Section 323 IPC with a default sentence of one month and sentenced to undergo 6 months and to pay a fine of Rs. 1,000/= each under Section 324 IPC. It is against that decision, the accused have come up in appeal. 2. The points that arise for determination in the appeal are (1) whether the accused have committed the offences under Sections 323 and 324 of the IPC as found by the court below (2) is there anything to interfere with the decision rendered by 2 CRL.A.NO.136/2003 the court below. 3. In order to attract Section 323, only voluntary casing hurt is sufficient and under Section 324 of the IPC, the injury should have been caused by means of any instrument. 4. It is the case of the prosecution that on 23.1.2001 while the complainant/PW6 was proceeding from a shop after purchasing materials, the accused with a common intention to cause hurt to him, restrained him and it is alleged that A1 caught hold of his neck and slapped and A2 hit on the back of the person with stone and A3 also slapped him thereby committed the said offences. 5. The evidence available are that of PWs 6 and 7. PW6 is the injured and PW7 is his wife. PW6 would say that he knows all the three accused and about three years back at about 9 p.m in the night while he was returning back from the market, the accused restrained him and told him that he should not go through that road after 6 p.m and thereafter A1 caught hold of his neck and abused him by calling his caste name. A2 had hit him on the back with a stone and A3 3 CRL.A.NO.136/2003 had slapped him on the left side of the face. Thereafter he was taken to the hospital. He had identified A1, A3 as well as MO1-stone. In the cross examination he is not able to say the motive for the attack at all. According to him, it should have been on account of the fact that Hamsa Haji had excluded them and directed him to purchase articles for his house. 6. PW7 is the wife of PW6. She had not seen the incident as such and she would depose that on hearing the hue and cry of PW6 when she arrived at the spot, she heard the complainant crying and explained to her what had happened. She would say that the accused had ran away from there. But it is clear that she has not seen the incident. So far as it relates to the slapping and catching hold of the neck is concerned, PW6's evidence does not make it unbelievable. Immediately after the alleged incident he had stated before the doctor as well that some people had slapped him and had caught hold of his neck. He had never stated about any hit on the body with a foreign object and the injury 4 CRL.A.NO.136/2003 sustained by him is only an abrasion on the posterior aspect of the left shoulder. Now it is under this circumstance, usage of stone assumes considerable importance. 7. PW8-the Deputy Superintendent of Police, who prepared the scene mahazer, has just deposed before the court that there was a stone lying in the place of incident and that had been taken and it is MO1. None of the witnesses to that mahzer had been examined and no question is put to PW8 that who had shown that stone. A reading of the scene mahazer would reveal that the area was pointed out by the wife of the complainant. No question is put to her also whether she had shown the stone to the investigating officer. So, in the absence of any question to PWs 7 and 8 regarding the basis on which the stone was identified goes a long way to show that all is not well with the investigation. Just because the investigating officer deposes that he had seen a stone in the place of incident and the fact that the person who had shown the place of occurrence is questioned about the same, it has to be held by the court that MO1 cannot be used in 5 CRL.A.NO.136/2003 this case at all. It is also to be remembered that at the first instance the hitting with a stone is not spoken to by PW6 at all before the doctor. The nature of injury sustained is only an abrasion which is a superficial injury. If a person is surrounded by three people and he is hit by a stone, necessarily the nature of injury caused would have been more grievous. So, all these circumstances make me believe that it may not be safe to hold that the complainant had been attacked with a stone MO1 as projected by the prosecution. When it is so, the offence under Section 324 will not lie. So far as catching hold of the neck and slapping are concerned, I do not find anything to disbelieve the evidence of PW6 and therefore, the said conviction can be sustained. 8. In the result, the criminal appeal is partly allowed and the conviction and sentence passed under Section 324 of IPC is set aside and that under Section 323 is confirmed. The accused are directed to pay the fine if not already paid under Section 323 within a period of one month from today, failing which the court below shall execute the sentence. Let an 6 CRL.A.NO.136/2003 amount of Rs.2,500/= be granted to the complainant/PW6 on realisation of the fine amount. If any amount in excess is deposited, let it be reimbursed to the accused. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.136/2003