IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 2872 of 2008(D) --------------------------------------- CRA.231/2000 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM CC.123/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER/APPELLANT/ACCUSED : ---------------------------------------------------- SHAJAHAN @ SHAJI, S/O. ASSAINARUPILLAI, PETTADIVILA VEEDU, OORUPOIKA, EDAKKODE VILLAGE, EDAKKODE DESOM. BY ADV. SRI.P.M.HABEEB RESPONDENT/RESPONDENT/STATE : --------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 265 OF 1995 OF ATTINGAL POLICE STATION) PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2872 OF 2008 ............................................ DATED THIS THE 22nd DAY OF SEPTEMBER, 2008 ORDER Petitioner is the first accused in C.C.123 of 1997 on the file of JFCM-I, Attingal. He, along with three other accused, were charge-sheeted for the offence under Section 447, 324, 323 and 341 read with Section 34 IPC. The case as against the third accused, was split up as he was absconding. Accused 1,2 and 4 pleaded not guilty. Prosecution case was that due to previous enmity on 21.7.1995 at about 12 pm, the four accused, in furtherance of their common intention, wrongly restrained PW3 and inflicted injuries on him by beating with MO1 cement pipe and also kicking and beating and thereby committed the offence. Prosecution examined Pws 1 to 9 and marked Exts.P1 to P5. On the side of defence, Ext.D1 to D6 portions of the statements of PW4 recorded under Section 161 of Code of Criminal Procedure were marked. 2. Learned Magistrate, on the evidence, found the accused guilty and convicted and sentenced them to simple imprisonment for three months each for the offence under Section 447 read with Section 34 IPC, simple imprisonment for one month each CRRP 2872/2008 2 for the offence under Section 341 read with Section 34 IPC and simple imprisonment for six months each for the offence under Section 324 read with 34 IPC. The accused challenged the conviction and sentence before Sessions Court, Thiruvananthapuram. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. First accused alone filed the revision challenging the conviction and sentence. 3. Learned counsel appearing for petitioner submitted that accused 2 and 4 subsequently died. When the revision was heard at the admission stage, it was not admitted and records were called for. 4. Learned counsel appearing for petitioner and learned Public Prosecutor were heard and records called for were perused. The argument of learned counsel is that appreciation of evidence by courts below was perverse and the difference in the version in Ext.P1 F.I.Statement and what was deposed at the time of evidence by PW3 was not properly appreciated by the courts below. It was argued that as per Ext.P1 F.I.Statement, only two accused, viz, accused 1 and 2, inflicted injuries on PW3 and the specific version was that he was inside his shop on 21.7.1995 at about 12 pm and while so, accused 1 and 2 came to CRRP 2872/2008 3 his shop and asking PW3 whether he will not give his daughter to the third accused for marriage, attempted to attack him and then PW3 ran towards his house and they followed and inflicted injury by beating him with MO1 pipe and the case at the time of evidence was that he was in the verandah of his house and finding the four accused persons running towards his house, he ran through the paramba and then the four accused persons caught hold of him and thereafter inflicted injuries by beating with MO1 and also hitting and kicking and both the versions cannot go together. It was also pointed out that PW3 admitted that his daughter was got married seven years earlier and his daughter was asked for the third accused nine years earlier and it is humanly impossible to believe the case that after seven years of marriage of daughter of PW3, accused would attack PW3 on that ground and this aspect was not properly appreciated by the courts below. Learned counsel also argued that when Pws 1 and 2, the independent witnesses turned hostile and the only evidence to prove the offence is that of Pws 3 and 4, which is contradictory to the earlier version, courts below should not have relied on their evidence for convicting the petitioner. Learned counsel also argued that even though accused are children of the sister of PW3, when Ext.P2 wound CRRP 2872/2008 4 certificate was prepared by PW5, the Doctor, name of the accused were not given and as against the case in Ext.P1, allegation was that four persons beat him with a piece of wood and the case was not that accused 1 and 2 beat him with a pipe and this was also not properly appreciated by the courts below. Learned counsel also pointed out that PW3 admitted that there is a counter case as against him for inflicting injuries on accused 1 and 2 who also sustained injuries and if the evidence of Pws 3 and 4 is to be accepted, there is no chance for accused 1 and 2 to sustain any injury and therefore it is clear that the incident did not take place as deposed by Pws 3 and 4 and as found by the courts below and therefore conviction is to be set aside. Learned Public Prosecutor submitted that courts below properly appreciated the evidence and there is no reason to interfere with the conviction and sentence. 5. Only first accused has challenged the conviction. Learned Magistrate and learned Sessions Judge relied on the evidence of Pws 3 and 4, apart from PW5 the Doctor and Ext.P2 wound certificate to convict petitioner, along with accused 2 and 4. As rightly pointed out by learned counsel, it is clear that courts below did not properly appreciate the evidence as material aspects were overlooked. It is admitted case that CRRP 2872/2008 5 accused are the children of the sister of PW3. It is the prosecution case that the incident occurred due to previous animosity. Though motive is not very relevant, when evidence is tendered by the injured himself, in the nature and circumstances of the case, motive alleged is very relevant. Ext.P1 F.I.Statement recorded by PW7 while PW3 was in the hospital establish that his version on the incident was that accused 1 and 2 alone attacked him and inflicted the injuries. The case in Ext.P1 was that because of the refusal of PW3 to give his daughter in marriage to third accused, as proposed by the accused, accused 1 and 2 came to the shop room of PW3 to attack him, asking whether PW3 will not give her daughter to third accused. As rightly canvassed by learned counsel, evidence of PW3 establish that the marriage of daughter of PW3 was over seven years earlier. According to PW3, the proposal from third accused was nine years earlier, which could be two years prior to the marriage of daughter of PW3. If that be the case, when the allegation is that PW3 was attacked for his refusal to give his daughter in marriage to third accused after seven years from the date of marriage of the daughter, courts below should have scrutinized the evidence minutely with care and caution. If so analysed, it would have found that evidence of Pws 3 and 4 CRRP 2872/2008 6 cannot be believed. 6. If in fact the incident was as spoken to by Pws 3 and 4 and PW3 was in the verandah of his house and the four accused persons came running towards his house, and PW3 feared of any personal attack, in the ordinary course, he would remain inside by locking the door and will not run towards the paramba. Even if it is believed that PW3 ran towards the paramba and thereafter four accused caught hold of him and inflicted the injuries, he would not have disclosed in Ext.P1 F.I.Statement, which is the first version of the incident, that two accused came to his shop and thereafter when they attempted to attack him, he ran away followed by the said two accused and inflicted injuries on him. The different version in Ext.P1 and from the box cast serious doubt about the version. At the same time, what is recorded in Ext.P2 wound certificate by PW5, the Doctor, which was his version of the incident given to him, was that he was attacked by four persons with a piece of wood. The names of the assailants were not given. If accused 1 and 2 alone attacked him as stated in Ext.P1, PW3 would not have stated to PW5 that four persons inflicted injuries on him. As it was the children of his sister, as spoken to by PW3, in the ordinary course, he would have disclosed the names of the assailants to the Doctor. Added to CRRP 2872/2008 7 this, if the evidence of Pws 3 and 4 is to be believed, accused 1 and 2 would not have sustained any injury at all, as there is not even a case of scuffle at the place of occurence. PW3 admitted that for inflicting injuries to accused 1 and 2, police has registered a case as C.C.107 of 1997 against him and he is facing trial. When the entire evidence is appreciated in the proper perspective, it is clear that the version of the incident as spoken to by PW3 and PW4 cannot be believed. If that be so, based on their evidence, petitioner cannot be convicted as has been done by the courts below. The conviction and sentence is therefore set aside. Revision petition is allowed. Conviction of petitioner for the offence under Section 324, 323, 341 and 447 read with 34 IPC is set aside. Petitioner is acquitted of the offences charged. M.SASIDHARAN NAMBIAR, JUDGE lgk/-