IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 5TH JULY 2011 / 15TH ASHADHA 1933 CRL.A.No. 1844 of 2003() ------------------------ SC.346/2002 of SESSIONS COURT, THRISSUR .................... APPELLANT(S): -------------- 1) GOSHKUMAR, S/O.VELAYUDHAN, KANASSERY HOUSE, KORATTIKKARA DESOM, KADAVALLUR VILLAGE. 2) JAYAN, S/O.AYYAPPAN, VALIYARA HOUSE, KORATTIKKARA DESOM, KADAVALLUR VILLAGE. 3) SUMESH, S/O.APPU, THERIL VEEDU, KORATTIKKARA DESOM, KADAVALLUR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON 06/07/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------- Crl. Appeal No.1844 OF 2003 ---------------------------------------- Dated this the 5th day of July , 2011 JUDGMENT The appellants are accused Nos. 1 to 3 in SC No.346/2002 of the Court of Sessions Judge, Thrissur, as they are aggrieved by the order of conviction and sentence imposed against them under Section 323 and 326 r/w Section 34 of IPC. 2. The prosecution case is that on 30.7.2001 at about noon while PW1, who is a member of Kanakka community while returning home on bicycle, at a place on the road at Korattikkara Pampinkavu moola, the accused restrained him and the first accused uttered by calling his caste name and further told that he was looking for PW1 and further uttered that nobody would questioned him if PW1 is killed and uttering such words the first accused assaulted PW1 with an iron pipe on his leg and on sustaining the blow PW1 had fallen down along with bicycle and the third accused also Crl. R.P. No.1844 OF 2003 2 assaulted him at his shin and second accused caught hold of his loin cloth and pulled him down. Thus, according to the prosecution the accused severally assaulted PW1 all over his body. It is the further case of the prosecution that immediately after the incident, PW1 taken to Kunnamkulam Government Hospital from where he was referred to Medical College Hospital, Thrissur and he gave the First Information Statement that is Ext.P1 before PW7, the Head Constable attached to Kunnamkulam Police Station based upon which PW7 registered Ext.P6 FIR in Crime No.480/2001 for the offences punishable under Sections 341, 323,326 r/w Section 34 of IPC and Section 3(i)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 3. Accordingly, the Police undertook the investigation and finally, filed a report based upon which cognizance was taken for the above offences. On the appearance of the accused a formal charge was framed which read over and explained to them but they denied the charge and pleaded not guilty. Thereafter, the trial was further proceeded during Crl. R.P. No.1844 OF 2003 3 which PWs.1 to 8 were examined and Exts.P1 to P13 marked from the side of the prosecution. From the side of the accused though, no witness was examined, Exts.D1 to D6 were marked. Beside, the above MOs.1 to 6 were also identified and marked as material objects. During the examination of accused under Section 313 of Cr.P.C., the accused, they denied the incriminating circumstances and evidence which emerged during the prosecution evidence and put to them. The accused took a specific defence that they were attacked on PW1 due to political rivalry. Finally the trial found that the 4th accused is not guilty of any of the offences alleged and he is acquitted of all the charges levelled against him. Accused NOs.1 to 3 are found not guilty for the offences under Section 341 of IPC and also under Section 3(i)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. But the court found that the accused /appellants herein are guilty under Sections 323 and 326 r/w Section 34 of IPC and accordingly, they are convicted. On such conviction, the accused 1 to 3 are Crl. R.P. No.1844 OF 2003 4 sentenced to undergo the Rigorous Imprisonment for 2 years for the offence under Section 326 r/w Section 34 of IPC and also sentenced to pay a fine of Rs.1,000/- each, with a default sentence of one months simple imprisonment, for the offence under Section 323 r/w Section 34 of IPC. It is the above conviction and sentence, challenged in this appeal. 4. I have heard Sri. Vipin Narayan, learned counsel appearing for the appellants and the learned Public Prosecutor for the State. I have also perused the judgments of the trial court and I have gone through the evidence and materials on record. 5. Going by the prosecution case and the materials on records, it appears that the prosecution allegation is that at about 12.45 p.m on 30.7.2001 at Pampinkavu moola near Korattikkara Toddy shop from where a road reaching into samba colony and PW1 was restrained by the accused assaulted him in which incident PW1 sustained injuries. According to the prosecution, PW1 was firstly, removed to the Govt. Hospital, Kunnamkulam, wherein he was initially Crl. R.P. No.1844 OF 2003 5 treated by PW5, who issued Ext.P3 Medical Certificate. Thereafter PW1 was taken to Medical College, Hospital, Thrissur who had undergone treatment as inpatient therein. Ext.P4 is the case sheet and Ext.P5 is the OP ticket which are proved through PW6. On receipt of intimation from the Medical College Hospital, PW7, the Head Constable attached to Kunnamkulam Police Station went to the Medical College Hospital and recorded Ext.P1 FI Statement of PW1 based upon which PW7 registered Ext.P6 FIR. PW8, the Deputy Superintendent of Police, undertook the investigation and he examined PW2 the wife of PW1 who is cited as an occurrence witness. Beside, PW8 has also questioned PW4. PW3 is an attester to Ext.P2 the seizure mahazar for MO1 and MO2 material objects namely the iron rod. Ext.P7 is the scene mahazar prepared by PW8. Ext.P8 is also a seizure mahazar prepared by PW8 for the seizure of buttons of the shirt allegedly worn by PW1. Ext.P10 is the mahazar for the seizure of Ext.P4 case sheet. Ext.P9 is the property list proved through PW8. Ext.P12 is the caste certificate of PW1 Crl. R.P. No.1844 OF 2003 6 and Ext.P13 is the refer report in crime No.481/2001 of Kunnamkulam Police Station. 6. When PW1, 2, 3 and 4 examined, they deposed in tune that the prosecution allegation. As I indicated earlier, PW5 is the doctor who issued Ext.P3 medical certificate and he gave evidence to the effect that he had examined PW1 at 1.20 p.m on 30.7.2001 in the Kunnamkulam Govt. Hospital and according to him, the patient told him that he was attacked by accused Nos.1 to 3 and two others with iron pipe and inflicted injuries over his entire body. He had further stated that he had noted following injuries; “(1) A Lacerated wound 4 x 1 x 1 cm size over right shin. (2) A small lacerated wound over middle of left upper arm. (3) Pain and tenderness left upper limb and left chest.” When he was examined, he had also deposed that PW1 had sustained fracture injuries and there was no sufficient facilities in the said hospital and hence he had referred patient to Medical College Hospital, Thrissur. PW5 has also stated that injury No.1 can be caused by beating with either Crl. R.P. No.1844 OF 2003 7 MO1 and or MO2 and injury No.2 is possible on fall and injury No.3 as a result of fisting him. Thus, from the evidence of PW5 it is clear that PW1 was found with such injuries as noted in Ext.P3 medical certificate. PW6 is the lecturer in Orthopedic in Thrissur Medical College, according to him, he had examined PW1 at about 4.40 p.m on 30.7.2001 and according to him on examination, he found that PW1 had bilateral fracture on tibula, a sutured wound on right shin and contusion over the left upper arm. Ext.P4 case sheet and Ext.P5 OP ticket are proved through PW6. PW6 has also stated that the patient was seen at the Dental Department one lower tooth was found having Grade II mobility probably due to the assault. He had also stated that fracture to be caused by assault with either of Mos. 1 and 2. Thus from the above medical evidence that consist of the deposition of PWs. 5 and 6 and the documents in Ext.P3 to P5 it can be seen that the prosecution has proved that PW1 had sustained injuries on 30.7.2001 and the injuries are grievous. Crl. R.P. No.1844 OF 2003 8 7. In order to prove the prosecution case against the accused, the prosecution very much relied upon the evidence of PW1 the injured and PW2 the wife of PW1 and the evidence of PWs. 3 and 4 and the recovery under Section 27 of the Evidence Act. According to PW1, while he was returning to home on a bicycle, the first accused by calling him by his caste name told him that he was looking for him and nobody would question him if they finished of him and thereafter by using iron pipe gave blow on his legs and knee. According to PW1, when he cried out, A2 caught hold of loin cloth and pulled him down to the ground. Thereafter, according to PW1, A1 again beat on several parts of his body and A4 has also beat on his back. According to PW1, the motive behind the attack was political vengeance since he is a Congress man and the accused persons belonged to Marxist party and during the Panchayat election he was asked to join the Marxist party, but he refused the same and thus accused has got animosity towards him. During the cross examination of PW1 has categorically stated that he is Crl. R.P. No.1844 OF 2003 9 a Congress man and to a suggestive question that Crime No.481/2002 was registered with the allegation that PW1 had attacked A1 and at the same place and time, he answered “ഞന ഉപ(ദവ ചച ട ല”. But it is relevant to note that has not denied such suggestion and such on denied relevant in the light of the defence version. He had also stated that he does not know whether the accused Nos.1 and 4 admitted in the hospital for treatment. He made an improvement that when he gave Ext.P1 Statement that he had furnished the name of A4. He had also admitted that he put his signature in Ext.P1 FI Statement without reading the same. During the further cross examination, he had deposed that he had spoken to the Police that he had gone to Madras, which is also a fact not deposed to the Police . It is also his deposition to the effect that he is not aware of the reasons for the attack at the time of launching Ext.P1 Statement. Thus, the case of political enmity deposed as an afterthought. He had also deposed that he was assaulted at the road and fallen to the canal. PW1 has re-iterated his Crl. R.P. No.1844 OF 2003 10 version that he used to meets the accused on every day and he does not know any particular reason for the attack. During the cross examination, he deposed that there were two houses near the place of occurrence but there was no inmates in one of the houses at the time of the incident. It is also the deposition that there is a shop of Muslim within 20 meters from the place of occurrence. He had also deposed that he was taken to the hospital by his wife and her mother. 8. PW2 is the wife of PW1 and during her chief examination she had stated that when she came to the water tap for taking water, she had seen A1 and A3 beating her husband with iron rod. She had also stated that A4 fist on PW1 with hands. PW2 in her chief examination itself she has stated that the accused ran away from the spot, when she reached the spot on hearing the cry of PW1. PW2 further says that PW1 has no politics but he is a Congress man and according to her the accused are belonged to Marxist party. According to her, the attack was on the refusal of her husband to join in the Marxist party as Crl. R.P. No.1844 OF 2003 11 requested by the accused. PW2 has claimed that she had seen the production of iron pipe. She had admitted during cross examination that she was menial worker in the Korattikkara School till 15.1.2001. To suggestive question that A2 was a member of PTA of the school, with reluctance she admitted the same. But subsequently stated that she does not know the defence suggestion that she lost her employment because she was red handed connected with theft of rice and other materials from the school. She has also admitted during cross examination that including the 2nd accused and the PTA committee have made complaint before the Minister against PW2. She has also admitted that when she was ousted from the school, the 2nd accused was one of the persons among the group of people who present at that time. 9. Another witness cited and examined by the prosecution to prove its case is PW3. Admittedly, PW3 is not an occurrence witness and he is having only hearsay evidence regarding the incident. The prosecution cited the Crl. R.P. No.1844 OF 2003 12 above witness to prove the recovery effected under Section 27 of the Evidence Act. According to him on the third day of the incident when he was to take tea a Police jeep came from which the first accused and two Police men stepped down and gone to the paramba near Ammanath Pambinkavu and he said that as pointed out by A1, two Policemen took two iron roads. He had further deposed that the Police had written something and on direction to put his signature he had done it and he identified the same as Ext.P2. He had also stated that he cannot identify and deposed before the court that whether MO1 and MO2 are the same. During cross examination, he had stated that he is not sure whether iron rod were taken. He had further admitted that he is the son of PW1's father's brother. He had also admitted he is a Congress worker. He had also admitted that he is an accused in a case pending before the Kunnamkulam court in which the allegation is that he had assaulted A1 in the present case. He is also admitted that beside himself, PW4 is also an accused in the said case. He had also admitted Crl. R.P. No.1844 OF 2003 13 that his residence is about 100 meters away from the place from where the pipe allegedly seized the MO's. He had further deposed that he did not know the contents or writings in the paper in which he had put his signature. Of course, in re-examination it is brought that connected with the election, the witness was assaulted and he was attending the Kunnamkulam court, connected with the said case. He had also stated that the present accused are the accused in that case also. 10. The other witness examined by the prosecution is PW4. According to PW4 on 30.7.2001, when he was waiting for bus at Korattikkara Centre, these four accused came to there at about 1.00 p.m. and according to him they went to Marxist Party office, thereafter A1 came with blood on his hand and gone by catching an autorickshaw. He had stated that there was no blood on the hand, when A1 was going to the party office. During cross examination, he had admitted that the Deputy Superintendent of Police did not question him and he gives the deposition for the first time in the Crl. R.P. No.1844 OF 2003 14 court. He had categorically admitted that he is an active congress worker. Though he had denied the suggestion that he had involved in 5 cases, he admitted that there is one case against him. He had also admitted that the complainant in that case are Marxist party members. He expressed his ignorance to the question, whether crime No.301/2001 is with respect to the assault an autorickshaw driver Sri. Jayaprakash. He also stated that he does not know as to who are the accused in the that crime. During the cross examination, the defence has proved Ext.D1 contradiction of PW4. Ext.D1 is the contradiction with respect to 161 statement of PW4, which is an undated statement. It is further brought on record during the cross examination that PW4 arrived at that spot 15 minutes in advance and the accused came without blood on the hand after 10 minutes on his arrival and within 5 minutes thereafter A1 came with blood. He had also deposed that the bus came within 2 to 3 minutes and he does not remember the name of the bus. Crl. R.P. No.1844 OF 2003 15 11. When PW7 and 8 were examined they were deposed in terms of the prosecution case. PW8 had stated that when PW2 was questioned, PW2 never said that at the time of incident she was coming to take water from the tap and assaulted PW1 with iron pipe all over the body. He had also deposed that when PW1 was questioned he had deposed before him as per Ext.D1. During the cross examination of PW8 the defence has got marked Ext.D3 and D4 which are respectively the FI Statement and FIR in Crime No.481/2001 and had deposed that the defacto complainant in that crime is A1. He had also deposed that in that complaint they have stated that A1 and A4 have sustained injuries. He had also stated regarding the treatment given to them as an inpatient at Royal Hospital, Kunnamkulam. He had also admitted that Ext.D5 and D6 are the wound certificate of A1 and A4, which obtained from the said hospital. It is the above evidence and materials relied on by the court below to convict the appellant/accused. 12. The learned counsel for the appellants vehemently Crl. R.P. No.1844 OF 2003 16 submitted that the prosecution has not succeeded in establishing the allegation against the accused/appellants beyond reasonable doubt. According to the learned counsel, the trial court has miserably failed to consider the defence case and in appreciating the defence put forwarded by the accused. It is the submission of the learned counsel that all the independent witnesses produced by the prosecution other than the doctors and the Police officials are the interested and inimical witnesses and therefore, the court ought not have placed any reliance upon the deposition of such interested witnesses. It is also the submission of the learned counsel that court below without assigning any valid reasons simply rejected the case of the defence, that it was the defacto complainant, who attacked the accused and the said facts are proved by the defence evidence as well as from the evidence of the prosecution. The learned counsel also submitted that the evidence of PW2 is liable to be rejected on the ground that she is highly interested witness and her version is against the true facts since according to Crl. R.P. No.1844 OF 2003 17 the learned counsel the evidence of PW2 is against the facts mentioned in Ext.P7 seen mahazar and Ext.P11 seen plan, wherein there is no mention regarding the water tap. On the strength of the contradiction of that contained in the evidence of PW2, the counsel submitted that PW2 is unreliable she had no occasion see the incident was according to her own admission. Thus if the evidence of PW2 who is highly interested, and related to extended, there is no evidence other than that of PW1, to prove the incident. Thus, according to the learned counsel the accused/appellants entitled to get an acquittal. It is the further submission of the learned counsel that the prosecution has deliberately suppressed the true affairs from the notice of the trial court and they did not produce Ext.D3 to D6 even though they have already possession of the same. 13. On the other hand, the learned Public Prosecutor empathetically submitted that the prosecution evidence, especially regarding the incident, adduced through the Crl. R.P. No.1844 OF 2003 18 deposition of PWs. 1 and 2 and other evidence of PW3 and 4 remaining intact and those evidence are sufficient to prove the prosecution case and involvement of the accused in the allegation. It is also the submission of the learned Public Prosecutor that Ext. D3 to D6 documents has no relevants in this case since the Police after investigation has specifically found that Crime No.481/2001 of Kunnamkulam Police Station is a false crime and it was registered on the basis of the factually incorrect information furnished by A1. According to the learned Public Prosecutor after investigation in the above crime, it is realised that no such incident was taken place and injuries claimed to have sustained by A1 and A4 are self inflicted injuries so as to evade from the penal liability of the accused in the present case. Therefore, according to the learned Public Prosecutor though the defence has taken a case of counter attack/counter case the same is proved as false and therefore, the trial court is perfectly justified in repelling the above contentions of the defence and convicting the Crl. R.P. No.1844 OF 2003 19 accused on the basis of the evidence that available on record. Thus, according to the learned Public Prosecutor no interference is warranted. 14. I have carefully considered the arguments advanced by the learned counsel for the appellants as well as the learned Public Prosecutor and I have also perused the judgment of the trial court. I have carefully gone through the materials and evidence on record. 15. The prosecution case is that at about 12.45 p.m on 30.7.2001, at a place near at Pampinkavu moola, the accused due to political enmity, attacked PW1 when he was returns to trying him on a cycle, after preventing him and assaulted him with the MO1 and MO2 iron pipe and in that incident PW1 had sustained several injuries including fracture injuries on his both legs. On the other hand, the specific case of the defence is that the defacto complainant in the present case attacked the accused due to political rivalry and in the said incident A1 and A4 sustained injuries and connected with the said incident Ext.D3 crime was Crl. R.P. No.1844 OF 2003 20 registered and no such incident was taken place as alleged by the prosecution and the accused has no connection with the incident. In the light of the rival pleadings and the evidence and materials on record the question to be considered is whether the trial court is justified in its finding that the accused attacked the defacto complainant and inflicted injuries on him and whether the prosecution has succeeded in establishing the said case against the accused beyond reasonable doubt. 16. As I indicated earlier, in the light of the medical evidence that consists of the oral evidence of PWs. 5 and 6 and the documentary evidence such as Ext.P3, P4 and P5 proved through those witnesses, I have no doubt, the prosecution has succeeded in establishing that PW1 has sustained grievous injury on 30.7.2001, as a result of which, among other injuries, PW1 sustained two fracture injuries. If that be so, the next question to be considered is whether the prosecution has succeeded in establishing the allegation that the accused has attacked PW1 and inflicted such Crl. R.P. No.1844 OF 2003 21 injuries on him. On consideration of the above question here comes the evidence of PW1 to PW4. PW1 is the injured and PW2 is the wife of PW1 who is cited as an occurrence witness. PW3 is the person who cited by the prosecution to prove Ext.P2 mahazar for the recovery of MO1 and MO2. PW4 is another witness cited by the prosecution to establish that the accused seen going to the party office on the