IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 Crl.Rev.Pet.No. 1672 of 2002() --------------------------------------- SC.62/1991 of ADDL.ASSISTANT SESSIONS COURT, KOTTAYAM CRA.114/1995 of ADDL.SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: ---------------------------------- 1. RAVEENDRAN, S/O. VELU, CHERICKAL VEEDU, CHINGAVANAM KARA, NATTAKAM VILLAGE. 2. SUNIL, S/O. RAMAN, KOORKANPARAMBIL VEEDU, CHANNAIKADU KARA, PANCHIKKADU KARA, PANCHIKKADU VILLAGE. 3. PEETHAMBARAN, S/O. KUNJAN, LAKSHAM VEEDU COLONY, CHINGAVANAM KARA, CHINGAVANAM VILLAGE. BY ADV. SRI.B.RAMAN PILLAI MR.GEORGE PHILIP MR.R.ANIL MR.RAJU RADHAKRISHNAN MR.ANIL.K.MUHAMED RESPONDENT(S): COMPLAINANT: --------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.MUHAMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.S.GOPINATHAN, J. = = = = = = = = = = = = = = Crl.R.P.No.1672 of 2002. = = = = = = = = = = = = = = Dated this the 26th day of March, 2010. O R D E R Pw11, the Circle Inspector of Police, Changanassery Police Station in Crime No.419/90 prosecuted the revision petitioners in SC.No.62/1991 before the Asst.Sessions Judge, Kottayam alleging offence under Sec.452, 307, 324 and 323 r/w.34 IPC with an allegation that at 8.15 pm. on 23.12.1990, the revision petitioners in furtherance of their common intention to commit murder of one Sasikumar, who was examined as Pw1, committed house trespass by entering the office of an arrack shop at Mampalathu wherein Pw1 was working as the route Manager. The first revision petitioner was carrying a sword stick which was marked as Mo.1. Pw1 was in the process of settling accounts along with Pw4, another employee. No sooner than the revision petitioners entered the office room, the Crl.R.P.No.1672 of 2002. -: 2 :- first revision petitioner uttered that he was waiting for a pretty long time and that he would leave the place only after murdering Pw1 “ ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . .. ... ... ... ... ... .... ... ... ... ... ... .. .. . ... ... ... ... ... ... ... ... ... .. ” and repeatedly inflicted, cut injuries on Pw1 with Mo.1. Despite warding off the assault, Pw1 sustained injuries. The second revision petitioner beat Pw1 with a sheath of the sword. The third revision petitioner caught hold Pw1 at his hair, bowed his head when the 2nd revision petitioner beat and kicked at the back. Pw1 caught at the sword and wrestled for it. Though he was successful in getting the sword, the revision petitioners caught at the sword and fought for it. In their attempt to get back the sword they sustained some minor injuries at their hands. Seeing others rushing to the spot, revision petitioners took to their heels. Pw1 was lifted to the Medical College Hospital, Kottayam. Somebody informed the police station at Chingavanam. Crl.R.P.No.1672 of 2002. -: 3 :- 2. Pw7, a Head Constable attached to the police station rushed to the spot and knew that Pw1 was taken to the Medical College Hospital with grievous hurt. Pw7 went to the Medical College Hospital and recorded Ext.P1 First Information Statement. Returning to the police station, a case as Crime No.419/90 for offence under Sec.452, 307, 324 and 323 r/w.34 IPC was registered for which Ext.P1(a) FIR was prepared. Message was conveyed to Pw11, the Circle Inspector of Police. Pw11 took over the investigation. After completing the investigation he filed the charge sheet before the Judicial Magistrate of the First Class, Changanacherry where it was numbered as CP.No.4/1991. Finding that the main offence alleged is triable by a Court of Session, the learned Magistrate, after complying with the requisite procedures, committed the case to the Court of Session, Kottayam, from where it was made over to the Addl. Asst.Sessions Judge, Kottayam. The Addl. Asst. Sessions Judge, after hearing the prosecution and the Crl.R.P.No.1672 of 2002. -: 4 :- revision petitioners framed charge for the above said offences to which the revision petitioners pleaded not guilty. Hence, they were sent for trial. On the side of the prosecution Pws.1 to 12 were examined. Exts.P1 to P20 and Mos.1 and 2 series were marked. After closing the evidence for the prosecution the revision petitioners were questioned under Sec.313 of the Crl.P.C. The revision petitioners denied the incriminating evidence. He advanced a case that the revision petitioners went to the adjacent toddy shop and had drinks. The fish curry supplied was of very poor quality. Hence, they went to the office of the toddy shop to make complaint to Pw4, the toddy shop manager. When they made complaint, the Manager pushed down the first revision petitioner and asked to go after paying the money. By the time Pw1 rushed to the spot and cut him with sword stick. When the 2nd and 3rd revision petitioners rushed to rescue, they were also cut with the sword. The employees in the shop also assaulted the Crl.R.P.No.1672 of 2002. -: 5 :- revision petitioners and they were admitted in the hospital. The 2nd and 3rd revision petitioners stated that they had nothing to state other than what was stated by the first revision petitioner. Responding to the call to enter on their defence, a meat supplier was examined as Dw1. He had deposed that when the first revision petitioner made complaint about the fish curry, he was pushed down by Pw4. By that time, Pw1 came out with a sword stick. Getting scared, Dw1 took to his heels. He had further stated that the first revision petitioner was unarmed. Dw1 didn't see other revision petitioners. 3. The learned Addl.Asst.Sessions Judge on appraisal of the evidence arrived at a finding in favour of the prosecution. The revision petitioners were found guilty for the offences alleged, convicted and sentenced to rigorous imprisonment for six years for offence under Sec.307 r/w.34 IPC, rigorous imprisonment for two years for offence under Sec.452 r/w.34 IPC, rigorous imprisonment for one year for Crl.R.P.No.1672 of 2002. -: 6 :- offence under Sec.324 r/w.34 IPC and rigorous imprisonment for three months for offence under Sec.323 r/w.34 IPC. Sentences were ordered to run concurrently. The revision petitioners were further directed to pay Rs.2,000/- each as compensation to Pw1 under Sec.357(3) Crl.P.C. Feeling aggrieved, the revision petitioners took up the matter in Crl.Appeal No.114/1995. The Addl.Sessions Judge to whom the appeal was made over, by judgment dated 31.8.2002 dismissed the appeal. Thereby the conviction and sentence were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 4. The learned counsel for the revision petitioners and the learned Public Prosecutor were heard. 5. One of the two contentions advanced by the learned counsel for the revision petitioners is that there was no fair trial. Pw10, the Village Officer had proved Exts.P15 and P16 plans. In cross Crl.R.P.No.1672 of 2002. -: 7 :- examination he had deposed that Ext.P15 plan was prepared as directed by the Public Prosecutor. Basing upon that statement of Pw10, the learned counsel for the revision petitioners would argue that the Public Prosecutor had shown undue interest. He had even collected evidence and hence there was no fair trial. Going by the evidence of Pw10, it is revealed that Ext.P16 is the plan first prepared by Pw10. Though it was prepared on the basis of the scene mahazar, there were certain omissions. Hence he was asked to prepare a fresh plan with all particulars and Ext.P15 is the plan so prepared. The evidence of Pw10 would reveal that he was a new incumbent to the post of the Village Officer and while preparing the first plan there occured some omissions due to lack of experience and the second plan was prepared with all details. However, no material was disclosed to conclude that Pw10 had made any addition other than what is narrated in the scene mahazar. It is not revealed out as to at what stage the prosecutor Crl.R.P.No.1672 of 2002. -: 8 :- directed to prepare a detailed plan. Since there is nothing to indicate that Ext.P15 was thrust into during the trial, it had to be presumed that it was prepared before filing the final report. Probably, before filing the report the file might have been sent to the Public Prosecutor for approval/opinion and the direction to prepare fresh plan with all details must be at that stage. Such direction, if any given, is not sufficient enough to conclude that the Public Prosecutor was involved with investigation process. In the above circumstance, there is nothing to indicate that a fair trial was denied, especially because no material was disclosed to show that the preparation of the second plan was to tilt the balance against the revision petitioners or that any artificial or concocted document was brought in. Adding to that, there is no case for the revision petitioners that the Public Prosecutor who requested to prepare a detailed plan was the person who conducted the prosecution. It is also pertinent to note that the place of Crl.R.P.No.1672 of 2002. -: 9 :- occurrence was not much in dispute. The presence of the revision petitioners at the place of occurrence is even admitted by them. Of course, they have got their own explanation for their arrival at the scene. In the above circumstance, I find that even if Ext.P15 was prepared at the instance of the Public Prosecutor, there is no denial of fair trial so as to interfere with the conviction. Contention on that count is devoid of merit. 6. The second contention advanced is that Pw1 was the assailant and that injuries sustained to Pw1 are defence injuries. Pws.1 to 4 were cited as persons who had witnessed the above incident. Pw3 didn't support the prosecution case. Though Pw4 had deposed that he was in the office along with Pw1, according to Pw4, seeing the revision petitioners rushing to the office, he rushed out and ran away. Pws.1 and 2 had given evidence in support of the prosecution case. Their evidence was considered threadbare by the courts below and had concluded that Crl.R.P.No.1672 of 2002. -: 10 :- their evidence instil confidence. The evidence of Pw1 in material particulars corroborated with Ext.P1 first information statement which was given within three hours of the occurrence. The evidence of Pw.8, a Tutor in Orthopedic Surgery attached to Medical College Hospital, Kottayam would show that Pw1 had sustained sword cut injuries which according to Pw9, would be caused with a weapon like Mo.1. Ext.P13 is the wound certificate issued by Pw8 and Ext.P14 is the discharge certificate issued by Pw9, another Tutor in Orthopedics, Medical College Hospital, Kottayam. Evidence of Pws.8 and 9 coupled with Exts.P13 and 14 would show that Pw1 had sustained incised wound 8 x 4 x 3 cms. over dorsal aspect of upper 3rd of left forearm cutting all extensor muscles, incised wound 5 x 2 cms. obliquely placed over the dorsolateral aspect of right thumb cutting extensor and proximal phalanx with fracture base of proximal phalanx. Medical evidence corroborates with the evidence of Pws.1 and 2. There is nothing to Crl.R.P.No.1672 of 2002. -: 11 :- suggest that the above injuries are defence injuries. 7. Pw12, Civil Surgeon attached to Sachivothamapuram Government Hospital was examined to prove that the revision petitioners had also sustained injuries. Exts.P18, P19 and P20 are the wound certificates relating to the revision petitioners. The very case of the prosecution is that the revision petitioners sustained injuries as evidenced by Exts.P18, P19 and P20, while they attempting to catch hold Mo.1 sword stick which Pw1 wrestled out from the first revision petitioner. Pw12 had deposed that the injuries found on the revision petitioners and noted in Exts.P18 to P20 wound certificates would be caused while they attempting to get back Mo.1 sword stick. The learned counsel for the revision petitioners had advanced a contention that with the injuries sustained to Pw1, it was not possible for him to win over the first revision petitioner and get the sword. Regarding that there is no supporting medical evidence. According to Pw12, first Crl.R.P.No.1672 of 2002. -: 12 :- revision petitioner stated that 4 or 5 persons cut with sword stick, kicked and beat with stick. 2nd revision petitioner stated that 2 or 3 persons cut with sickle, beat with stick and fisted. 3rd revision petitioner stated that 5 persons cut with chopper, beat, hit and kicked. Three revision petitioners had given three different stories, indicating that it is a cock and bull story. It is crucial to note that none of the occurrence witnesses including Pw1 were implicated. Pw12 had also deposed that injuries No.1 and 2 on the first revision petitioner and all injuries found on other revision petitioners could be caused while fighting for weapon. Other injuries found on the first revision petitioner are abrasions and contusions which couldn't be caused with Mo.1 or by any sharp edged weapon. If the statement given by the revision petitioners to Pw12 is believed, there were different sharp edged weapons, namely, sword stick, chopper and sickle and also sticks were used by 5 persons to assault them. On a comparative reading of the injuries Crl.R.P.No.1672 of 2002. -: 13 :- sustained to Pw1 and the injuries sustained by the revision petitioners, I fail to find that the injuries sustained to Pw1 are defence injuries or that Pw1 was the aggressor. The possibility for the revision petitioners sustaining injuries in any other manner at the hands of someone else couldn't be ruled out, because in their statement to Pw12, there is mention about 4 or 5 persons and three different weapons. Probably, it may be a subsequent event. However, Pw12, would depose that main injuries found on first revision petitioner and injuries on other revision petitioners may be defence wound or while fighting for weapon. I find that the explanation given by the prosecution regarding the injuries sustained to the revision petitioners is probable. 8. It was also revealed out that on the basis of a statement given by the first revision petitioner, a case as Crime No.4/91 was registered by Pw11 for offence under Sec.452, 307, 324 and 323 r/w.34 IPC and on investigation it was found baseless and accordingly, a refer report was Crl.R.P.No.1672 of 2002. -: 14 :- filed. The revision petitioners, though have a case that a protest complaint was filed for prosecuting Pw1 and others, not a bit of document was produced to that effect. Neither was there a prayer for simultaneous trial. There is also nothing to show that there was any subsequent trial. 9. The revision petitioners have absolutely no business to enter the office of Pw1 if they had gone to toddy shop for drinking. Though they alleged that the fish curry supplied to them was of poor quality, there is no supporting evidence other than the defence suggestion. Adding to that their case is that they had gone to the room to make complaint to Pw4. But Pw4 didn't support. Even if it is assumed that the revision petitioners had been to the office of Pw4 to make complaint, they have no business to go to Pw1 who was no way connected with toddy shop. It didn't appear that Pw1 was the aggressor. The defence story that Pw1 attacked revision petitioners without any provocation appears to be a cock and bull story. I didn't find any Crl.R.P.No.1672 of 2002. -: 15 :- preponderance of probability in the defence suggestion. The courts below had appraised the evidence of Pw1 and found the defence story not probable. Even to Pw4, there is no suggestion that Mo.1 was the sword stick that was kept in the room wherein Pw1 was preparing/settling accounts. The nature of injuries sustained to Pw1 and revision petitioners itself would belie the defence version that it was Pw1 who had first assaulted the revision petitioners. Even if the fish curry supplied was of poor quality, they should have settled scores at the counter of the toddy shop. That didn't happen. When that circumstance is taken into account, it appears that the revision petitioners having drunk and under the influence of alcohol trespassed into the office room of Pw1 with Mo.1 sword stick and Pw1 was assaulted. 10. The learned counsel for the revision petitioners submitted that even if the story of assault is believable, there is little material to come to the conclusion that the Crl.R.P.No.1672 of 2002. -: 16 :- revision petitioners inflicted injuries with an intention to commit murder. According to the learned counsel, there is no material disclosed to arrive at a finding of guilty for offence under Sec.307 IPC. I had earlier mentioned about the words uttered by the first revision petitioner while they were entering the room of Pw1. The evidence of Pw1 on that aspect is corroborated by the testimony of Pw2. A lesser intention is not inferable from the words uttered by the first revision petitioner. There is nothing on record to show that the 2nd and 3rd revision petitioners had gone to the room of Pw1 with any lesser intention. In the above circumstance, I find that the courts below had not in any way gone wrong in appreciating the evidence and finding that there was attempt to commit murder. I find no illegality or error or impropriety committed by courts below in appreciating the evidence. The conviction under challenges is based upon cogent evidence. 11. Having due regard to the facts and circumstances Crl.R.P.No.1672 of 2002. -: 17 :- revealed out, the weapon used and nature of injuries sustained to Pw1, it doesn't appear that the sentence under challenge is any way disproportionate or harsh, so as to interfere in exercise of the revisional powers. The sentence under challenge is reasonable. In the result, the revision petition is devoid of merit. Accordingly, it is dismissed. The bail granted to the revision petitioners while admitting revision petition shall stand cancelled. The revision petitioners shall surrender before the trial court forthwith. The Addl.Sessions Judge, Kottayam shall see the execution of sentence and report compliance. P.S.GOPINATHAN (Judge) Kvs/-