IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.Rev.Pet.No. 155 of 2001(A) ----------------------------- CRA.572/1999 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.266/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVN. PETITIONERS: --------------------- 1. VINOD, S/O.RAGHAVAN, AYIROLIMEETHAL HOUSE, ULLIERI AMSOM. 2. RAGHAVAN, S/O.KUNHIRAMAN, RESIDING DO. 3. BABU, S/O.KUNHIRAMAN, RESIDING DO. 4. RAMUNNI, S/O.KUNHIRAMAN, KOMATHMEETHAL HOUSE, ULLIERI AMSOM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: RESPONDENTS --------------- 1. THE SUB INSPECTOR OF POLICE, ATHOLI. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.155 of 2001 ------------------------------------- Dated this the 11th day of August, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution for offences punishable under Sections 341, 323 and 326 r/w 34 I.P.C. All the 4 accused/revision petitioners have been found guilty, convicted and sentenced under Section 341 I.P.C r/w 34 I.P.C to pay a fine of Rs.500/- each. In default of payment of fine, they have been sentenced to undergo S.I for a period of one week each. The 1st revision petitioner/accused has been sentenced under Section 326 I.P.C to undergo S.I for a period of one year and to pay a fine of Rs.1,000/-. A default sentence was also imposed. The 2nd accused was found guilty, convicted and sentenced under Section 326 I.P.C to undergo S.I for a period of one month and to pay a fine of Rs.1,000/-and in default to undergo S.I for a further period of one month. The appellate court upheld the verdict of guilty and conviction and only modified the default sentence imposed on the 1st accused. Crl.R.P No.155 of 2001 2 2. The prosecution alleged that at 6 p.m on 30.04.1994 by the side of the public road at Ulliyeri, accused Nos.1 to 4 had wrongly restrained PW3. The 1st accused allegedly beat him with a dangerous wooden stick (M.O 1), causing grievous hurt - fracture, to his left forearm. The 2nd accused allegedly kicked him and beat him with hands. Accused Nos.3 and 4 allegedly beat PW3. The crime was registered on the basis of the F.I statement (Ext.P1) lodged by PW3 on 05.05.1994. Investigation was completed by PW11 and final report was filed. Cognizance was taken by the learned Magistrate. The accused appeared before the learned Magistrate. They pleaded not guilty to the charges levelled against them. Thereupon the prosecution examined PWs 1 to 11 and proved Exts.P1 to P6. M.O 1 was also marked. 3. The accused in the course of cross examination and when examined under Section 313 Cr.P.C took up a defence of total denial. PW3 must have suffered injuries in some other manner, they contended. They did not adduce any defence evidence. Crl.R.P No.155 of 2001 3 4. The courts below concurrently came to the conclusion that it was safe to place reliance on the oral evidence of PWs 3 and 4 and that the evidence of PWs 3 and 4 along with the other pieces of evidence satisfactorily establishes the offences alleged against the accused. Accordingly they proceeded to pass the impugned concurrent verdict of guilty and conviction. 5. Before me, the learned counsel for the petitioners/accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the revision petitioners/accused assails the impugned concurrent verdict of guilty and conviction on the following grounds. (i) The courts below erred grossly in placing reliance on the oral evidence of PWs 3 and 4; (ii) The courts below must, at any rate, have held that there is no acceptable evidence whatsoever against accused 3 and 4; (iii) The courts below erred in coming to the conclusion that M.O 1 is a dangerous weapon as to attract guilt under Section 326 I.P.C; (iv) At any rate, the sentence imposed is excessive. Crl.R.P No.155 of 2001 4 6. The prosecution examined PW3-the injured as also PWs 1, 2 and 4 as eye witnesses to the occurrence. PWs 1 and 2 turned hostile to the prosecution and their evidence is absolutely useless for the purpose of adjudication of guilt. PW3 is the victim. He supported the prosecution version. Ext.P1 is the F.I statement lodged by him before the police at the Medical College Hospital on 05.05.94. He had suffered the injuries on 30.04.94. PW4, allegedly an independent witness, had witnessed the occurrence and he supported the case of the prosecution broadly. PW5 is the medical officer who issued Ext.P2 wound certificate after examining PW3 on 30.04.1994. The time of examination of PW3 by PW5 is not noted in Ext.P2. But it is evident that PW3 was examined on 30.04.94 itself. Accused 1 and 2 are named specifically in Ext.P2 F.I statement. PW6 had recorded Ext.P1 statement. PW7 proved Ext.P3 transfer F.I.R and Ext.P4 F.I.R registered at the police stations concerned. PW8 is an attestor to Ext.P5 scene mahazar. PWs 9, 10 and 11 are police officials who had roles to play in the investigation of the crime and the filing of the final report. Ext.P5 scene mahazar and Ext.P6 seizure mahazar were proved through the Crl.R.P No.155 of 2001 5 police officials. Under Ext.P6 seizure mahazar, M.O 1 was allegedly seized by the police on 07.06.1994, the incident having taken place on 30.04.1994 and the F.I.R having been registered on 05.05.1994. 7. PW3 is the injured. In that sense of the term, he is an interested witness. Admittedly accused 1 to 4 had motive against him. But such strain in the relationship of PW3 with accused 1 to 4 is, according to me, not sufficient to persuade the Court to throw overboard the oral evidence of PW3 in any omnibus manner. The oral evidence of PW3 is eminently supported by Ext.P1 F.I statement lodged by him before the police on 05.05.94. The alleged cause narrated to PW5 on 30.04.94 recorded by him in Ext.P2 wound certificate support the version of PW3. His evidence is further supported by the oral evidence of PW4. I have gone through the oral evidence of PWs 3 and 4. I am not persuaded to agree that the discretion exercised by the trial court and upheld by the appellate court to place reliance on the oral evidence of PWs 3 and 4 warrants any interference. The evidence of PWs 3 and 4 is supported by Ext.P1 F.I statement as also the contents of Ext.P2 wound certificate recorded by PW5 Crl.R.P No.155 of 2001 6 on the date of the incident itself. PW4 is shown to be interested in the sense that he owes allegiance to the political party to which PW3 also owes allegiance. But according to me, that reason is too inadequate to discard the evidence of PW4. The injury suffered by PW3 described in Ext.P2 does also support the oral evidence of PWs 3 and 4. 8. Coming to the incident proper, we have the evidence of PW3 that all 4 accused persons together restrained him. This version is specifically supported by the averments in Ext.P1 F.I statement. The case of the prosecution that PW3 was beaten by the 1st accused with a wooden stick resulting in fracture of the left forearm is supported by Ext.P2 wound certificate. The evidence of PW3 about the specific overt acts of Accused 3 and 4 wrongfully restraining him is, of course, not specifically supported by the oral evidence of PW4. This does not also persuade me to reject the oral evidence of PW3. Allegations against the 2nd accused of his having kicked PW3 and of his having beaten PW3 with his hands are not specifically supported by any medical evidence. But the oral evidence of PW4 supports the case of PW3. I am, in these circumstances, satisfied that the Crl.R.P No.155 of 2001 7 courts below committed no error in placing reliance on the oral evidence of PWs 3 and 4 to come to the conclusion that an incident had taken place; that all the 4 accused had wrongfully restrained PW3, that PW3 was kicked and beaten with the hands by the 2nd accused and that the 1st accused had beaten PW3 with a wooden rod. On these aspects, I am satisfied, that the oral evidence of PWs 3 and 4 which is supported by Ext.P1 F.I statement and Ext.P2 wound certificate was safely accepted by the courts below. At any rate, interference with such findings of fact is not at all warranted at this third tier of criminal litigation. 9. The counsel then contends that conviction under Section 326 I.P.C is not justified. According to him, there is nothing to show that M.O 1 was the weapon used for commission of the offence or that the weapon is one which answers the description of a dangerous weapon to attract conviction under Section 326 I.P.C. M.O 1 is seen recovered only on 07.06.1994 and the oral evidence of PW3 on this aspect leaves very little to be desired. According to him, when he was discharged from the hospital he came to the scene of the occurrence and then handed over weapon M.O 1 which was lying at the scene of the crime to Crl.R.P No.155 of 2001 8 the police. But Ext.P6 shows that the same was recovered long later on 07.06.94. A description of the weapon - the weight of the weapon, is not available from Ext.P6. M.O 1 has not been shown to the doctor to elicit opinion of the doctor about the nature of the weapon. The description of the weapon (M.O 1) in Ext.P6 is too inadequate to come to a safe conclusion that the said weapon was a dangerous weapon. In any view of the matter, I am persuaded to concede to the 1st accused the benefit of doubt on this aspect. Conviction can be entered against the 1st accused only under Section 325 I.P.C. 10. Coming to the question of sentence, the court below has imposed a sentence of S.I for a period of one year and a fine of Rs.1,000/- on the 1st accused. The passage of time, the nature of the weapon used etc. do persuade me, notwithstanding the grievous injury suffered by PW3 to agree that the sentence imposed can be modified and reduced subject to the requirement of compensating PW3 adequately. Similarly as against the 2nd accused for the offence under Section 323 I.P.C, a sentence of S.I for a period of one month has been imposed. I am persuaded to agree that the substantive sentence of imprisonment imposed Crl.R.P No.155 of 2001 9 on him can be modified and reduced. Here again it will have to be zealously ensured that PW3 is adequately compensated. The fine of Rs.500/- imposed on all the 4 accused for the offence under Section 341 I.P.C and the default sentence do not warrant interference, I am further satisfied. 11. On the basis of the above discussions, I am satisfied that this petition can succeed only to the above extent. 12. In the result: a) This Crl.R.P is allowed in part; b) The verdict of guilty, conviction and sentence imposed on all the 4 accused for the offence under Section 341 I.P.C are upheld; c) The verdict of guilty, conviction and sentence on the 1st accused under Section 326 I.P.C is modified and reduced. Conviction is altered to Section 325 I.P.C and the sentence for the said offence is reduced to S.I for a period of 15 days. He is further directed to pay an amount of Rs.15,000/- (Rupees Fifteen thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of 3 months; Crl.R.P No.155 of 2001 10 d) The verdict of guilty and conviction on the 2nd accused under Section 323 I.P.C is upheld. But the sentence imposed on him is modified and reduced. In supersession of the sentence imposed on him under Section 323 I.P.C, he is sentenced to undergo imprisonment till rising of Court. He is further directed to pay an amount of Rs.2,500/- (Rupees Two thousand and five hundred only) as compensation and in default to undergo S.I for a period of one month. e) The compensation amount, if realised, shall be released to PW3, the victim. 13. The petitioners shall have time till 30.09.2009 to appear before the learned Magistrate to serve the modified sentence hereby imposed. On or before that date, the petitioners shall appear before the learned Magistrate for execution of the modified sentence hereby imposed. Till then the sentence imposed shall not be executed. (R.BASANT, JUDGE) rtr/-