IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 Crl.Rev.Pet.No. 9 of 2003() --------------------------- CRA.29/2001 of V ADDL.SESSIONS COURT, ERNAKULAM CC.474/1997 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- YOHANNAN, S/O. MATHAI, PANACKAL HOUSE, KANINADU KARA, PUTHENCRUZ VILLAGE. BY ADV. SRI.M.S.MANIKANDAN RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.36 IN CRL.R.P.9/2003 DISMISSED 17/5/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.9 OF 2003 --------------------------------------------- Dated 17th May, 2010 O R D E R Petitioner is the first accused in C.C.474/1997 on the file of Judicial First Class Magistrate's court, Kolencherry allegedly committed offence under Section 324 read with Section 34 of Indian Penal Code. Prosecution case was that on 20/1/1997 petitioner and his wife the second accused voluntarily caused hurt to PW1, his daughter PW2 and wife PW3 and thereby committed the offence under Section 324 read with Section 34 of Indian Penal Code. Both the accused pleaded not guilty. Learned Magistrate on the evidence of Pws.1 to 10, Exts.P1 to P4 and Exts.D1 and D1(a), portions of statement of PW2 CRRP 9/03 2 recorded under Section 161 of Code of Criminal Procedure, found the second accused wife not guilty and found the petitioner guilty of offence under Section 324 of Indian Penal Code. He was convicted and sentenced to simple imprisonment for six months. Petitioner challenged the conviction before Sessions court, Ernakulam in Crl.A.29/2001. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Case of the revision petitioner is that courts below should not have believed the prosecution case when independent witnesses did not support the prosecution case and Pws.1 to 3 are the father, mother and daughter. It is contended that counter case, Crime No.5/1997 CRRP 9/03 3 was registered by Ambalamedu police in respect of the same incident wherein PW1 is an accused and after trial he was also convicted and evidence of Pws.1 to 3 cannot be believed and therefore, on the evidence, petitioner should also be acquitted. Learned Public Prosecutor was heard. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective. 3. Though learned Magistrate and learned Sessions Judge concurrently accepted the evidence of Pws.1 to 3 on appreciation of evidence, on going through the evidence of Pws.1 to 3 along with Ext.P1 FI statement, it is clear that their evidence was not properly appreciated. Petitioner and PW1 are direct brothers. PW3 is the wife of PW1 and PW2 their daughter. It is admitted by PW1 that CRRP 9/03 4 there was property dispute between petitioner and PW1 and claim it was in respect of the property left behind by their father. Ext.P2 is the wound certificate relating to PW1. Ext.P3 is the wound certificate relating to PW2 and Ext.P4 is the wound certificate relating to PW3. They were examined by the doctor between 3.05 p.m and 3.15 p.m on 20/1/1997. Alleged cause of injuries recorded in Ext.P2 is that injury to PW1 was caused by the petitioner by throwing stone and also by hitting and also by using a rubber tapping knife at about 2.30 p.m on the same day. Alleged cause of injury relating to PW2 shown in Ext.P3 is hit by the petitioner and also by his wife, the second accused. Alleged cause of injury in Ext.P4 is hitting with a stone by the petitioner. Ext.P4 shows that when PW3 was CRRP 9/03 5 examined, the doctor could not find any physical injury and the only injury recorded is body ache. Ext.P3 shows that apart from an incised wound on right little finger, she complained body ache and was also having abrasion on the left big toe. Injury sustained by PW1, evidenced by Ext.P2 is lacerated wound on left temporal region and multiple abrasion on the body and incised wound on the left index finger. Ext.P1 FI statement of PW1 was recorded at 10.45 a.m on the next day. Therefore, PW1 had sufficient time to deliberate and formulate a case before disclosing the cause of the incident to the Head Constable. 4. As per Ext.P1 FI statement of Pw.1 they were in their house at about 2.30 p.m on 20/1/1997. Evidence of PW3 with the portion CRRP 9/03 6 of her statement recorded under Section 161 of Code of Criminal Procedure shows that PW1 was then sleeping inside. Ext.P1 shows that it is the case of PW1 that while so, PW2 reached the house and disclosed to PW1 that petitioner is removing stones from his property and therefore, PW1 reached the spot and questioned the petitioner. According to the version in Ext.P1, at that time petitioner took two stones and with the stone in his right hand hit on the left side of his head causing a bleeding injury. Ext.P2 shows that there was a lacerated wound on the left temporal region. Version in Ext.P1 shows that when PW1 sustained injury on his head, he caught hold of the petitioner stating that he shall not cause any injury and then both petitioner and PW1 fell over the stones and hearing the cry of PW1, CRRP 9/03 7 PW3 the wife rushed to the spot and she helped him to stand up and at that time petitioner took a stone and hit twice on her back and then PW2 the daughter reached there and cried not to cause injury to the mother. It is the version that at that time second accused reached there with a knife and petitioner obtained that knife and petitioner pushed PW2 who fell on the ground and using that knife inflicted an injury on the muscle portion of her right hand and then PW1 rushed and prevented petitioner from causing further injury. It is the version that second accused then ran to her house and returned with a knife and when she tried to inflict injury, Pws.1 and 2 caught hold of that knife and thereby injuries were caused to his right palm as well as two fingers of PW2. Ext.P3 shows CRRP 9/03 8 that PW2 sustained injuries on her right ring finger as well as right little finger which according to the version in Ext.P1 was caused when she caught hold of the knife. The only other injury shown is abrasion on the left toe. Ext.P3 does not show that PW3 sustained any injury on the muscle of her right hand as alleged in Ext.P1 FI statement. So also Ext.P4 wound certificate does not show that PW3 sustained any abrasion or contusion, which should have been there if she was hit with a stone on her back by the petitioner as alleged in Ext.P1 as well as by PW3. Allegation in Ext.P1 is that on getting information that petitioner was removing stones placed in the property by PW1, PW1 reached there and the incident occurred. But the oral evidence is entirely different. According to PW1 he along CRRP 9/03 9 with his wife was working at the place of incident and while so, petitioner reached there in an autorickshaw. According to PW1, PW2 had gone to school and returned while the incident was in progress. This version cuts the very root of the allegation in Ext.P1. As per the version in Ext.P1, PW1 would not have been at the scene of occurrence if PW2 did not disclose that petitioner was removing stones from his property. At the same time, evidence of PW1 shows that PW2 did not disclose any such fact to him and she had gone to the school and reached only while the alleged incident was in progress. It is to be borne in mind that the version in Ext.P1 was not made immediately after the incident. It was given on the next day after due deliberations. Therefore, if the version given by PW1 corroborated by PW3 from CRRP 9/03 10 the box is correct, a different version would not have been given in Ext.P1 on the very next day of the incident. If the incident spoken to by PW3 and Pws.1 and 2 with regard to presence of PW3 is correct, PW3 should have sustained injury as she was hit with a stone twice on her back. Absence of any corresponding or other injury noted in Ext.P4, makes it clear that version of PW3 that she sustained injury or that she was there at the scene of occurrence as deposed by her, cannot be believed. If that be so, version of Pws.1 and 2 to that aspect can only be disbelieved. 5. If the version in Ext.P1 and the evidence of Pws.1 and 2 is correct, petitioner had inflicted injury on muscle portion of the right hand of PW2 with a knife. Ext.P3 shows that she did not sustain any such injury. CRRP 9/03 11 Injuries sustained as noted in Ext.P3 are those sustained when she caught hold of the knife as admitted by PW2 and corroborated by PW1. Evidence of PW2 makes it clear that she reached there while there was a scuffle between the petitioner and PW1. According to PW2, PW1 and petitioner were rolling over the ground when she reached there. PW2 cannot depose as to how the incident occurred or progresses. Therefore, as to how the incident occurred, there is the version of PW1 alone. Evidently PW3 was not there. If that be so, question is whether version of PW1 could be believed. 6. Unfortunately,neither learned Magistrate nor the learned Sessions Judge properly appreciated the evidence of PW1. In the light of the inconsistent contradictory versions in Ext.P1 his evidence should have CRRP 9/03 12 been analysed properly. As per the version in Ext.P1, PW1 reached the scene while petitioner was there at the spot removing stones from the property. According to his version from the box it is not correct and petitioner reached there only later in an autorickshaw while PW1 and PW3 were there. When the entire evidence is appreciated in the proper perspective it is absolutely clear that PW1 is not deposing the truth. Learned Magistrate himself disbelieved the evidence of PW1 with regard to the allegation raised against the second accused, the wife of the petitioner. It is seen that in Ext.P1 which itself is the result of due deliberation, there is specific allegation about specific acts committed by the second accused which was found to be not true by the learned CRRP 9/03 13 Magistrate. When all these aspects are appreciated in the proper perspective and it is clear that injury found on the hand of PW1 was sustained when PW1 caught hold of the knife as deposed by him. The evidence of the doctor is that the lacerated wound on the temporal region noted in Ext.P2 could be caused due to a fall and that portion of the head coming into contact with a stone. It is difficult to accept the evidence of PW1, without proper corroboration. As the evidence of PW1 is not trustworthy, based on his version alone, it cannot be found that the incident occurred as deposed by him especially when possibility of sustaining those injuries in a scuffle, cannot be ruled out. It is more so when admittedly there was property dispute between the brothers in respect of the property left behind CRRP 9/03 14 by the father. It is also to be noted that even according to PW10 the Investigating Officer, crime No.5/1997 of Ambalamedu police station is the counter case. In fairness, prosecution should have disclosed the prosecution version in the counter case by producing the first information report as well as the final report. Unfortunately it was not done when all these aspects are appreciated in the proper perspective, it can only be found that prosecution did not establish that petitioner was the offender and he voluntarily caused any hurt to PWs.1 to 3 as found by the courts below. It is more so, when the injuries sustained by Pws.1 and 2 could be caused in a scuffle as explained by the defence and PW3 did not sustain any injury. Hence conviction can only be set aside. CRRP 9/03 15 Revision is allowed. Conviction and sentence passed by Judicial First Class Magistrate, Kolencherry in C.C.474/1997, as confirmed by Additional Sessions Judge in Crl.A.29/2001 is set aside. Petitioner is found not guilty of the offence under Section 324 read with Section 34 of Indian Penal Code. He is acquitted. The bail bond executed before the learned Magistrate stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE. uj.