IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.Rev.Pet.No. 5 of 2003 ------------------------------------------ CRA.55/1997 of SESSIONS COURT, TRIVANDRUM SC.148/1994 of I ADDL. ASSISTANT SESSIONS COURT, TRIVANDRUM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED NOS 1 TO 3: 1. RAMASWAMY S/O. KRISHNAN NADAR, PUTHUVAL PUTHEN VEEDU, ADUPPUKOOTANPARA, PEROORKADA, TRIVANDRUM. 2. REGHU S/O. KRISHNAN NADAR, V.P.1/116, DO. DO. 3. CHANDRAN @ KULACHANDRAN, S/O. KRISHNAN NADAR, V.P. 1/124, DO. DO. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT/RESPONDENT/COMPLAINANT: STATE- REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 17/2003 IN CRRP 5/2003 DISMISSED 22.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.5 of 2003 -------------------------- ORDER Petitioners, accused 1 to 3 in S.C.No.148/1994, along with accused 4 to 7, were tried by learned Additional Assistant Sessions Judge, Thiruvananthapuram for the offences under Sections 143, 147, 148, 307 and 379 read with Section 149 of Indian Penal Code. Prosecution case was that on 2.5.1992 at about 9.15 p.m., in furtherance of their common object, the seven accused formed themselves into an unlawful assembly and armed with deadly weapons like choppers and knife attacked PW1 at Aduppukoottanpara on Peroorkkada-Vazhiyila public road while PW1 was driving a jeep and inflicted grievous injuries with the intention to cause his death and also committed theft of the gold chain and the watch worn by PW1 and thereby committed the offences. Petitioners along with the other accused pleaded not guilty. CRRP 5/03 2 2. Prosecution examined ten witnesses and marked nine exhibits and identified Mos 1and 2. After questioning the accused under Section 313 of Code of Criminal Procedure, though accused were called upon to enter on their defence and adduce evidence, they did not adduce any evidence. On their side only Exhibits D1 and D2, portions of the statement of PW3 recorded under Section 161 of Code of Criminal Procedure were marked. 3. Learned Assistant Sessions Judge, on the evidence, found accused 4 to 7 not guilty of all the offences and acquitted them. It was found that petitioners are not guilty of the offences under Sections 148, 307 and 379 read with Section 149 of Indian Penal Code. But, finding that petitioners have independently voluntarily caused hurt to PW1 with choppers, which are dangerous weapons, learned Additional Assistant Sessions Judge convicted them for the offence under Section 324 of Indian Penal Code. They were sentenced to rigorous imprisonment CRRP 5/03 3 for one year and a compensation of Rs.10,000/- each. Petitioners challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.No.55/1997. Learned Sessions Judge dismissed the appeal confirming the conviction and sentence. This revision is filed challenging the concurrent conviction and sentence for the offence under Section 324 of Indian Penal Code. 4.Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 5. Argument of the learned counsel is that learned Sessions Judge did not consider the criminal appeal on merits. Even though learned Additional Assistant Sessions Judge did not rely on the evidence of PWs 3 and 4, who claimed to be eye witnesses, learned Sessions Judge proceeded on the basis that learned Additional Assistant Sessions Judge had believed them and without showing the reasons, relied on the evidence of PWs 1 to 4 and confirmed the conviction. It was argued that CRRP 5/03 4 learned Sessions Judge was bound to independently re-appreciate the evidence, which was not done and therefore, dismissal of the appeal was illegal. Learned counsel would also argue that when the evidence of PW1, the injured and PW2, the eye witness, which were relied on by the learned Additional Assistant Sessions Judge as well as by learned Sessions Judge, establish that their version as against accused 4 to 7 were disbelieved by the courts below and PWs 1 and 2 are proved to be not trustworthy witnesses, evidence of PWs 1 and 2 should not have been believed even as against the petitioners. It was argued that though names of the assailants were not disclosed to the Doctor when PW1 was examined by the Doctor within hours of sustaining the injuries, in Exhibit P1 F.I. Statement furnished by PW1, apart from the names of the seven accused, who faced trial, name of one Asokan was also mentioned and later, strangely, Asokan was removed from the array of the accused. CRRP 5/03 5 It was argued that statement of PW1, after Exhibit P1 F.I. Statement, was seen recorded, as per the case diary only on 23.12.1992 and when PWs 2 to 4 asserted before the Investigating Officer that Asokan was present at the scene of occurrence, his name could not have been excluded and Exhibit P7 report filed by PW8, who investigated the case only for one day, reached the court only on 25.5.1992 and it establishes that there was no proper investigation. Learned counsel would argue that as per the evidence of PW1, after inflicting injuries on PW1, the assailants had left the place and had gone to their house and still no weapon was recovered and failure to recover the weapons is fatal to the prosecution, especially in the light of the enmity between the parties. Learned counsel argued that evidence of PW2, who claimed to have travelled along with PW1, should not have been believed by the courts below and evidence would establish that he was not present at the scene of CRRP 5/03 6 occurrence. It was argued that if PW2 was present in the jeep, along with one Mohanan, who was not examined, they would have definitely intervened, when PW1 was being attacked and they would not have been mute witnesses to the entire incident and would not have come out of the jeep only after the culprits left the place and so, his evidence cannot be believed. It was also argued that when evidence of PW1 establishes that entire front seat, where three persons could sit, was vacant, the version that PW2 and Mohanan were sitting on the back side, where the articles were kept, cannot be believed and if the evidence was properly appreciated, it can only be found that PW2 was not an eye witness. Learned counsel would then argue that in the light of the untrustworthy nature of the evidence tendered by PW2, which is not corroborated, courts below should not have convicted the petitioners, as the case was foisted against them because of previous enmity. Learned counsel would finally CRRP 5/03 7 argue that in any case the sentence awarded is excessive, as petitioners were not involved in any case earlier. It was argued that when conviction was only for the offence under Section 324 of Indian Penal Code, there was no justification for not granting the benefit of Probation of Offenders Act. 6. Learned Public Prosecutor submitted that learned Additional Assistant Sessions Judge, who had occasion to see and note the demeanour of the witnesses, accepted the evidence of PWs 1 and 2 as trustworthy and the fact that PW1 sustained injuries is proved by Exhibit P2 wound certificate and evidence of PW5, the Doctor and on the very next day, the details of the incident were narrated by PW1, which was recorded in Exhibit P1 F.I. Statement and there is no reason to interfere with the concurrent findings of the courts below and hence, the revision is only to be dismissed. CRRP 5/03 8 7. There is force in the submission of the learned counsel appearing for the petitioners that learned Sessions Judge, in the criminal appeal, did not independently re-appreciate the evidence, which he is bound to do. Learned Additional Assistant Sessions Judge did not rely on the evidence of PWs 3 and 4 who were examined as eye witnesses. Learned Sessions Judge, without giving any reasons, recorded that “on going through the entire depositions of PWs 1 to 4, I find no reason to disbelieve their version that appellants caused injuries to PW1 by cutting with chopper”. Learned Sessions Judge did not independently discuss or appreciate either the evidence of PW1 or the evidence of PW2 or PWs 3 and 4. Learned Sessions Judge did not consider the grounds on which learned Additional Assistant Sessions Judge did not rely on the evidence of PWs 3 and 4 and by an omnibus finding, held that there is no reason to disbelieve the evidence of PWs 1 to 4. Such appreciation of CRRP 5/03 9 evidence in a criminal appeal can only be deprecated. 8. PW1 is the injured. PW1 was examined by PW5 at 10 p.m. on 2.5.1992. According to the prosecution, the incident occurred at 9.15 p.m. on the same day. Therefore, within forty five minutes, PW1 was examined by PW5 and the injuries were noted. PW5 recorded in Exhibit P2 wound certificate the alleged cause of injuries, as disclosed to him by PW1. The alleged cause is by attacking with chopper at Peroorkkada at about 9.15 p.m. The injuries noted in Exhibit P2 wound certificate include: an incised wound tamperal region 8 x 1 cm bone deep on the right side, an incised wound on the right occipital region 7 x 1 cm bone deep, an incised wound on the right axila 6 x 3 x 4 cm, an incised wound on the right thigh 5 x 1 cm muscle deep, transverse in nature on lower third of thigh, an incised wound on back of right thigh 4 x 1 cm muscle deep, an incised wound on the left shoulder CRRP 5/03 10 3 x 1 cm skin deep, an incised wound on the dorsal aspect of the right foot over the fifth meta carpel 6 x 2 cm bone deep, chip fracture on the fifth meta carpel base on the right hand finger, two parallel incised wounds on the medial aspect of right ankle 5 x 1 cm joint deep cutting the soft tissues and multiple lenier abrasions front and back of the chest and thigh. Evidence of PW5, the Doctor, establishes that those injuries could be inflicted by an attack with choppers. The First Information Statement of PW1 was recorded on the next day morning at 8 a.m. by PW8, the Sub Inspector of Police. PW8 went to Medical College Hospital, Thiruvananthapuram, where PW1 was under treatment, on getting information that an injured is admitted in the hospital after sustaining injuries in an attack. In Exhibit P1 F.I. Statement, PW1 narrated the details of the incident. From the witness box also PW1 narrated the very same story. The only difference is that in addition to the seven accused CRRP 5/03 11 mentioned in Exhibit P1 F.I. Statement, PW1 had mentioned Asokan also as one of the assailants. At the time of evidence, PW1 did not allege any over act as against Asokan. Learned counsel appearing for the petitioner would argue that though in Exhibit P1 F.I. Statement overt act is alleged against the fourth accused Sreekantan, from the witness box, he has no such case. Though PW1 asserted the presence of accused 4 to 7 as well as their part at the time of evidence, learned Additional Assistant Sessions Judge disbelieved that portion of the evidence in the light of the medical evidence. Though learned counsel argued that when the evidence of PW1 was disbelieved as against accused 4 to 7, his evidence as against accused 1 to 3 is also to be disbelieved, I cannot agree with the submission. There is no law that a witness is to be believed in toto or to be disbelieved in toto. It is for the court to evaluate the evidence and to accept that portion of CRRP 5/03 12 the evidence, which is trustworthy and reject the other portion. When the courts below found that evidence of PW1 as against accused 4 to 7 is not believable for valid reasons, it cannot be said that evidence as against the petitioners should also be discarded. If the evidence against the petitioners is trustworthy and reliable, there is no illegality in accepting even the uncorroborated version of PW1, as to how he sustained injuries and the part played by the petitioners. That exactly is the case herein. 9. Learned counsel has taken me through the entire evidence in detail and argued that evidence of PW1 has to be disbelieved. On re-appreciating the evidence, I find no reason to interfere with the finding of the learned Additional Assistant Sessions Judge, who had occasion to note the demeanour of PW1 or to disbelieve the evidence of PW1 with regard to the overt act committed by the petitioners. Evidence of PW1 as against the CRRP 5/03 13 petitioners is corroborated by the medical evidence of PW5 and Exhibit P2 wound certificate. 10. Though learned Additional Assistant Sessions Judge relied on the evidence of PW2 also, learned counsel vehemently argued that PW2 cannot be an eye witness. I find some force in the argument. If PW2 was in the jeep along with PW1, normally, it would have been PW2 who would have taken PW1 to the hospital. Even according to PWs 1 and 2, it was PW2, along with another person, who had taken PW1 to the hospital. Exhibit P2 wound certificate shows that it was not PW2 but one Jayan, who is shown as a relative, who had taken PW1 to the hospital. PW1 could not pin point who that Jayan is. He says that it is Jayamohan. When PW2 was examined he said that it is Jayakumar and he is also not sure as to the relationship of that person with PW1, which will not be the case, if PW2 was present at the scene of occurrence, when PW1 was taken to the hospital. It is not easy to CRRP 5/03 14 believe the evidence of PW2 that he, along with Mohan, who were allegedly the persons in the jeep, were in the jeep, because, if they were present, they would not be mute witnesses to the incident and they would have come out of the jeep. They remaining in the jeep till the assailants left the place without trying to help PW1 to resist the attack is unbelievable. When viewed the facts from all angles, it is difficult to accept the evidence of PW2 that he was present at the scene of occurrence. Even if evidence of PW2 is not relied on, so long as evidence of PW1, the injured witness, is trustworthy and reliable, conviction cannot be interfered. That exactly is the case herein. 11. Evidence of PWs 1 and 5 and Exhibit P2 wound certificate establish that PW1 sustained injuries noted in Exhibit P2. Though Exhibit P2 shows that PW1 sustained fracture, learned Additional Assistant Sessions Judge did not convict CRRP 5/03 15 the petitioners for the offence under Section 326 of Indian Penal Code. No appeal was filed challenging the failure to convict the accused for the offence under Section 326 of Indian Penal Code in spite of the grievous hurt, noted in Exhibit P2 wound certificate. Therefore, in the revision filed by the accused, it is not lawful for this Court to modify the conviction for a more grievous offence. But, the evidence establish that petitioners, using choppers, which are dangerous weapons, voluntarily caused hurt to PW1. Though learned counsel vehemently argued that there was delay in reaching the FIR before the court and the weapons, with which petitioners allegedly inflicted injuries, were not recovered, I do not find those materials very relevant in the light of the evidence of PWs 1 and 5. In such circumstances, conviction of the petitioners for the offence under Section 324 of Indian Penal Code can only be confirmed. CRRP 5/03 16 12. Then the question is regarding the sentence. Section 324 of Indian Penal Code provides sentence of imprisonment, which may extend to three years or fine or both. Learned Additional Assistant Sessions Judge awarded the sentence of rigorous imprisonment for one year each, in addition to a compensation of Rs.10,000/- to PW1 and in default, rigorous imprisonment for four months each. Learned counsel would argue that petitioners were not involved in any case earlier and they have no criminal antecedents. Petitioners were aged 27 years, 25 years and 30 years respectively and in such circumstances, the benefit of probation of Offenders Act should have been granted. Though learned Additional Assistant Sessions Judge sentenced the petitioners to rigorous imprisonment for one year each, the question of applying the benefit of Probation of Offenders Act was not considered by him. Learned Sessions Judge also did not consider this aspect. In such circumstances, CRRP 5/03 17 before awarding the sentence, it is necessary to consider whether petitioners are entitled to the benefit of Probation of Offenders Act. As it was not considered, a direction is to be issued to Additional Assistant Sessions Judge, Thiruvananthapuram to call for a report from the District Probation Officer as against the petitioners and decide whether the benefit of Probation of Offenders Act could be granted to the petitioners or not and thereafter, decide the question of sentence afresh. Revision is allowed in part. Conviction of the petitioners for the offence under Section 324 of Indian Penal Code by Additional Assistant Sessions Judge, as confirmed by Sessions Judge, is confirmed. The sentence awarded by Additional Assistant Sessions Judge is set aside. S.C.No. 148/1994 is remanded to Additional Assistant Sessions Court, Thiruvananthapuram. Additional Assistant Sessions Judge is directed to call for a CRRP 5/03 18 report from the District Probation Officer and decide whether petitioners could be granted the benefit of Probation of Offenders Act or not. On receipt of such report Additional Assistant Sessions Judge is directed to decide the question of sentence in accordance with law. Petitioners are directed to appear before Additional Assistant Sessions Court, Thiruvananthapuram on 28.07.2010. Send back the records immediately. 22nd June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 5/03 19 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.5 of 2003 -------------------------- ORDER 22nd June, 2010