IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 Crl.Rev.Pet.No. 3 of 2001() --------------------------- CRA.64/1992 of SESSIONS COURT, KASARAGOD CC.185/1989 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER/APPELLANT/1ST ACCUSED: --------------------- THEKANDATHIL KUNHIKRISHNAN, S/O.KANNAN, AGED 21, THIMIRI, HOSDRUG. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT/RESPONDENT/STATE/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.R.P. No. 3 of 2001 ----------------------------------------------- Dated this 8th day of July, 2009. ORDER This revision petition is filed by first accused in the case. He was tried along with three other accused by Magistrate Court for offences under Sections 326 read with 34 of Indian Penal Code ('IPC' for short). Petitioner was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1000/- and in default to undergo simple imprisonment for three months under Section 326 read with Section 34 IPC. Accused nos. 2 to 4 were acquitted. 2. Appeal was filed challenging the conviction and sentence before the Sessions Court and it was allowed originally. Revision was taken suo motu by the High court against the order of acquittal as Crl.R.C.No.1/1995 and the oder of acquittal was set aside and the case was remanded to the Sessions Court for fresh disposal in accordance with law, after careful and proper analysis of the evidence on record with an open mind. After the remand, the matter was reconsidered and learned Sessions Judge dismissed the appeal confirming the [Crl.R.P.No.3 of 2001] 2 conviction and sentence. It is against the said judgment that this revision is filed. 3. According to prosecution, on 24.2.1989 at about 6 a.m. accused nos.1 to 4, in furtherance of common intention assaulted PW1 with chopper and sticks. Accused no.1 cut him with a chopper MO1 and inflicted injuries on his legs. Accused nos. 2 to 4 beat him with sticks. The place of occurrence was on the public road at Vttappara in Thimiri Amsom. Accused nos. 1 to 4 were charge-sheeted for offence under Section 326 and 34 of IPC after investigation. 4. To prove the prosecution case, PWs.1 to 12 were examined and Exts.P1 to P8 and MO1 to 4 were marked. DW1 was examined and Ext.D1 was marked on the side of accused. Petitioner denied the guilt while questioned under Section 313 Cr.P.C. Learned Sessions Judge held, with reference to the main argument advanced regarding the identification of accused by PW1, that PW1 had previous acquaintance with first accused and the incident was in the month of February when the sky would be clear. Therefore, the person who is acquainted with another man can easily be identified in an open place like the place of occurrence. [Crl.R.P.No.3 of 2001] 3 5. It was also noted that PW1 identified the first accused with the help of the light of bicycle. The lower court was of opinion that if dynamo was in good condition, light will emanate even at the time of pushing the bicycle. Therefore, version given by PW1 that he identified first accused with the help of light of the cycle cannot be discarded, it is held. 6. Learned defence counsel argued that the above findings cannot be sustained since the incident happened at 5.30 a.m. and not at 6 a.m. as held by lower appellate court. It is also argued that at the time of incident, PW1 was pushing the cycle by a gradient and there will not be sufficient light emanating from the cycle. Therefore, there could not be proper identification of the first accused, it is argued. Learned Public Prosecutor argued that there is no perversity in the findings entered by the trial court as well as appellate court. It is only a reasonable view which a prudent man can take in the light of the evidence adduced by PW1, it is submitted. 7. Of course, the time is taken as at about 6 a.m. by the appellate court whereas in the evidence adduced it is stated that the incident happened at 5.30 a.m., it is conceded. As per the charge-sheet submitted by the investigating officer, the [Crl.R.P.No.3 of 2001] 4 time was shown as at about 6 a.m. It was also argued by learned defence counsel that identification of accused nos.2 to 4 by PW1 was not accepted by trial court and they were acquitted. Therefore, it may not be proper to accept the evidence of PW1 regarding identification of first accused alone on the basis of same evidence to enter a conviction against petitioner, it is argued. 8. On going through the evidence of the relevant witnesses and judgments of the trial court and appellate court, it is not possible to say that the views expressed on the reliability of PW1 regarding the identification is perverse. Even if another view is possible, unless there is perversity in the findings, the revisional court cannot upset the findings on facts entered into by the courts below. The view expressed by the courts must be such that no reasonable and prudent man would come to such a finding. In this case, such a conclusion cannot be arrived at, while assessing the evidence of PW1 and the findings entered into by the courts below. 9. It is true, as pointed out by the learned defence counsel that evidence relating to identification of the other accused, evidence of PW1 is disbelieved and the other accused were [Crl.R.P.No.3 of 2001] 5 acquitted. It was noted in the judgment of trial court that PW1 had given another person as the fourth accused in first information statement but, later, yet another person was included as the fourth accused by way of a report. On this ground, it is argued that the evidence of PW1 on the identification of the first accused alone cannot be acted upon. 10. It is needless to say that any witness is bound to make mistakes and the court's duty is to evaluate the evidence carefully and if it is found to be acceptable it can act upon portion of the evidence. Evidence of PW1 regarding the involvement of accused nos. 2 to 4 was rejected not on the mere question of identification of the other accused. There were other reasons to acquit co-accused. In this context, learned Public Prosecutor submitted that there is evidence of recovery of the weapons allegedly used for cutting PW1. 11. PW1 identified the weapon as MO1 and investigating officer gave evidence that first accused had told him that he kept it in the ceiling on the southern side of the house and that he would show the said place and accordingly, the recovery was effected from the said place. According to learned defence counsel, the weapon, MO1, did not contain any bloodstain and [Crl.R.P.No.3 of 2001] 6 hence, it cannot be connected to the crime. I am unable to accept this contention. The prosecution case is that the weapon was washed off after the incident and hence on the mere ground that the weapon did not contain bloodstain a finding cannot be entered against the prosecution. 12. Learned defence counsel also submitted that the sentence may be reduced. According to him, there is no evidence to show that PW1 was unable to follow his ordinary pursuits and hence, the injury cannot be terms as grievous hurt. On going through Section 320 IPC, I find from the Clause Eightly that any hurt which endangers life or causes the sufferer to be during the space of twenty days in several bodily pain, or unable to follow his ordinary pursuits, can be said to be grievous hurt. In this case, as per the evidence of PW9, the doctor, PW1 had sustained two incised wounds and injury no.1 as tendo achilis cut and it is recorded in Ext.P5 also. The doctor has given evidence that the said injury is grievous in nature and that PW1 was admitted in the hospital on 24.2.1989 and discharged on 28.4.1989. PW1 was in the hospital for more than two months and the evidence given by PW9 on the nature of injury is not challenged. [Crl.R.P.No.3 of 2001] 7 13. In the same manner, the evidence of DW1, who is another doctor, who had examined PW1 on the date of incident also discloses that the injury noted is grievous in nature. This fact was not challenged at the time of evidence and hence, there is no reason to discard this piece of evidence. It is only reasonable to hold that during the space of 20 days, PW1 would have been in severe bodily pain and this attracts the definition of 'grievous hurt' under Section 320 IPC. The prosecution need not further prove that the injured was unable to follow his ordinary pursuit to attract Section 320 IPC. 14. Learned counsel for petitioner also submitted that petitioner was aged only 21 years at the time of incident and he is 41 years now and he is married and he has children also. The case was pending for a very long period and he has already suffered the trauma of long pending criminal prosecution. The learned defence counsel also submitted that the petitioner is not involved in any other criminal case. On hearing both sides, considering various facts and circumstances of he case, I find that a reduction can be made in sentence. In the result, the following order is passed: (i) The conviction and sentence passed against [Crl.R.P.No.3 of 2001] 8 the petitioner under Section 326 IPC is confirmed. (ii) Sentence is reduced to simple imprisonment for eight months and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for two months under Section 326 IPC in supersession of the sentence passed. The Criminal Revision Petition is partly allowed. Sd/-K.HEMA, JUDGE. Krs. /True copy/ P.S to Judge