IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 Crl.Rev.Pet.No. 1231 of 2002() ------------------------------ CRA.226/2001 of ADDL. SESSIONS COURT, ALAPPUZHA CC.223/1996 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT (PW1) ---------------------------------------------- MARY, D/O. KANAKA RAJ, NILAM NIKARTHIL HOUSE, KAMALAPURAM, ALAPPUZHA. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): APPELLANTS & RESPONDENTS/ACCUSED & COMPLAINANT ------------------------------------------------------------- 1. MAHASENAN, S/O. VASU,PULICHUVATTIL VEEDU WARD NO.IV, ARYAD PANCHAYAT, ALAPPUZHA. 2. ANEESH KUMAR S/O. HARIDAS, KALIKA, WARD NO.IV, ARYAD PANCHAYAT, ALAPPUZHA. 3. MITHRASENAN, S/O. VASU, SREEBHAVAN, KOTTAMKULANGARA, ALAPPUZHA. 4. SIVADAS, S/O. VAVACHAN, PUTHENPURACKAL VEEDU, WARD NO.IV, ARYAD PANCHAYAT, ALAPPUZHA. 5. VAVACHAN, S/O. KITTU, PUTHENPURACKAL VEEDU, WARD NO.IV, ARYAD PANCHAYAT, ALAPPUZHA. 6. HARIDAS, S/O. VASU, KALIKA, WARD NO.IV, ARYAD PANCHAYAT, ALAPPUZHA. 7. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.B.RAMAN PILLAI FOR R1TOR5 SRI.R.ANIL FOR R1 TO R5 SRI.RAJU RADHAKRISHNAN FOR R1 TO R5 SRI.ANIL K.MOHAMMED FOR R1 TO R5 SRI.DELVIN JACOB MATHEWS FOR R1 TO R5 R7 BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: uj. M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 1231 OF 2002 =========================== Dated this the 24th day of May,2010 ORDER The injured de facto complainant in C.C.223/1996 on the file of Chief Judicial Magistrate, Alappuzha filed the revision challenging the order of acquittal in reversal of the conviction and sentence by Additional Sessions Judge, Alappuzha in Crl.A.226/2001. Respondents 1 to 6 are the accused. Respondents 1, 5 and 6 are no more as they died subsequent to the filing of the revision. Prosecution case is that on 13.10.1995 at about 4.30 p.m due to previous enemity while PW1, the wife of PW1 was inside the house accused armed with sword stick and iron rod trespassed into the house and inflicted injuries on PW1 by beating her with iron rod and sword stick and also outraged her modesty. Crl.R.P.1231//2002 2 When she fell down unconscious accused waited outside for PW2 the husband to return along with the children, as he had gone to the school. When PW2 reached near the house he was also attacked and injuries were inflicted. As the neighbours gathered, accused went away. PW3 along with the neighbours took Pws.1 and 2 to the hospital from where PW9, the doctor examined PW1 and PW2 and prepared Ext.P6 and P7 wound certificates. They were treated in the hospital for the injuries sustained. PW1 subsequently on 9.11.1995 at about 5.30 p.m furnished Ext.P1 First Information Statement recorded by Sub Inspector, Crime 405/1995 based on which under Ext.P8 F.I.R was registered for the offences under sections 143, 147,148, 452, 354, 379 and 324 read with section 149 of Indian Penal Code. On investigation the offence under section 379 was deleted and Section 326 IPC was incorporated. After completing the investigation, final report was filed alleging that all the Crl.R.P.1231//2002 3 accused committed the offences under sections 143, 147, 148, 452, 354, 324 and 326 read with section 149 of Indian Penal Code. Accused pleaded not guilty. Prosecution examined ten witnesses and marked twelve exhibits and identified M.O.1 sword stick and M.O.2 and 3 iron rods. Learned Chief Judicial Magistrate on the evidence found the accused guilty and convicted and sentenced them for all the offences. Accused challenged the conviction and sentence before Additional Sessions Court, Alappuzha in Crl.A.226/2001. Learned Additional Sessions Judge on reappreciation of evidence found that PW9 the doctor had examined Pws.1 and 2 at 5 p.m and noted the injuries in Exts.P6 and P7 but the factum of the incident was reported to the police only on 9.11.1995 by PW1. Though the delay was sought to be explained by PW1 on the ground that she was hospitalised and was under the belief that from the hospital information will be furnished, it was found unsatisfactory. It Crl.R.P.1231//2002 4 was also found that when examined PW1 had not offered any explanation for the delay and the delay is fatal in the nature of the case. Learned Sessions Judge on appreciation of evidence found that there are material contradictions in the evidence of Pws 1 and 2 and if the incident as spoken to by them is true, the injuries would not be as found in Exts.P6 and P7. Learned Sessions Judge also found that Exts.P6 and P7 show that there is no corresponding injury for the overt acts spoken to by them and hence held that the conviction is not sustainable. The appeal was allowed and the accused were acquitted. Revision is filed challenging the acquittal. 2. Learned counsel appearing for the petitioner, respondents and learned public prosecutor were heard. 3. The incident occurred at about 4.30 p.m on 13.10.1995. PW9 the doctor examined Pws. 1 and 2 within thirty minutes of the incident and prepared Crl.R.P.1231//2002 5 Exts.P6 and P7. Evidence of PW9 with Exts.P6 and P7 wound certificates show that the alleged cause of injury disclosed to PW9 is different from what is alleged in Ext.P1 or deposed by Pws.1 and 2. As per the alleged cause of injury recorded in Ext.P6 P.W.1 sustained the injury as a result of assault and also when she had fallen and was kicked. The alleged cause of injury recorded in Ext.P7 wound certificate relating to PW2 is sustained when she was kicked at Komalapuram. The evidence of PW9 proves the alleged cause disclosed to him. But Exts.P6 and P7 show that there are overwritings regarding the alleged cause of injury, both in Exts.P6 and P7. It is written that the injuries are inflicted with a sword stick. Though that is seen scored off in Ext.P6, it is retained in Ext.P7. If the version in Ext.P1 is true, the injuries sustained by PW1 cannot be the one recorded in Ext.P6. According to PW1, she was attacked using sword stick and iron rod. But the injuries are Crl.R.P.1231//2002 6 only contusions and abrasions. True, the evidence of PW9 with Ext.P6 would show that there was also fracture of nasal bone. But that fracture cannot be the result of an attack using a sword stick or even an iron rod. The corresponding injury noted in the wound certificate is only contusion over the nose. It is clear that it will not be the injury sustained if she was hit with a sword stick or iron rod. 4. On appreciating the entire evidence and in the light of the findings of the learned Sessions Judge, I find no reason to interfere with the conclusions arrived at based on a proper appreciation of evidence. The conclusion arrived at by the learned Sessions Judge is the only possible view that could be taken if a proper appreciation of evidence is made. Though learned counsel appearing for the petitioner submitted that evidence warrants reappreciation, on going through the evidence, I cannot agree. I find absolutely no Crl.R.P.1231//2002 7 reason to interfere with the order of acquittal as the learned Sessions Judge has considered all aspects and there is no illegality or irregularity either in the appreciation of evidence or on any other procedure. There is no merit in the revision and it can only be dismissed. Revision is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006