IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 621 of 2007() ----------------------------- CRA.201/2006 of III ADDL.SESSIONS COURT, KOLLAM CC.118/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- 1. VINOD, S/O.RAJAPPAN, AGED 28 YEARS, THEKKEVILA VEEDU, KALLUKUZHI, CHOZHIYAKODU MURI, THINGAL KARIKKOM VILLAGE, PATHANAPURAM TALUK. 2. RAJAPPAN, S/O.KOCHIRI, KOCHERRY VEEDU, KALLUKUZHI, CHOZHIYAKODU MURI, THINGAL KARIKKOM VILLAGE, PATHANAPURAM TALUK. 3. SUSEELA, D/O.KURUMPA, THEKKEVILA VEEDU, KALLUKUZHI, CHOZHIYAKODU MURI, THINGAL KARIKKOM VILLAGE, PATHANAPURAM TALUK. 4. RAJAMMA, D/O.KURUMPA, THEKKEVILA VEEDU, KALLUKUZHI, CHOZHIYAKODU MURI, THINGAL KARIKKOM VILLAGE, PATHANAPURAM TALUK. 5. VINITHA, D/O.SUSEELA, THEKKEVILA VEEDU, KALLUKUZHI, CHOZHIYAKODU MURI, THINGAL KARIKKOM VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): COMPLAINANT -------------------------- THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON 11/12/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 621 OF 2007 =========================== Dated this the 11th day of December,2008 ORDER Revision petitioners are the accused in C.C.118/2001 on the file of Judicial First Class Magistrate-I, Punalur. They were convicted for the offence under sections 341 and 324 read with section 34 IPC and were acquitted of the offence under section 326 IPC. Petitioners challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.201/2006. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the revision petitioners argued that neither the trial court nor CRRP621/2007 2 the appellate court appreciated the evidence in the proper perspective and fact that the genesis of the incident was not disclosed and was not properly considered by the courts below. It was argued that PW4 the eye witness turned hostile to the prosecution and courts below convicted petitioners based on the evidence of Pws.1 to 3 the son, the mother and the grandmother and they are all interested witnesses who are on inimical terms with revision petitioners and without corroboration their version should not have been accepted. It was also argued that evidence of PW1 contradicts the evidence of Pws.2 and 3 and as per the version of PW1 there was a free fight between the group of the revision petitioners and Pws.1 to 3 and evidence of Pws.2 and 3 establish that they are not deposing the truth as they suppressed the fight. It was also argued that courts below should not have relied on Exts.P8 and P9 wound certificates which were not proved by examining the doctor and instead were marked through the Investigating Officer. It was further argued that First Information Statement was lodged only on the next CRRP621/2007 3 day and the inordinate delay was not explained and the iron rod or stick with which revision petitioners allegedly inflicted the injuries were not seized and produced and in any case the courts below should have granted benefit of doubt to the revision petitioners. 4. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the concurrent conviction or the sentence. 5. Prosecution case was that on the night of the fateful day on 9.9.2000 at about 9 p.m PW1 was proceeding from his house along the public way and while so first revision petitioner wrongfully restrained him and then second revision petitioner with an iron rod and stick beaten him on his head, chest, elbow and shoulder and hearing the cry of PW1, his mother PW2 and grandmother PW3 came there running and they were also attacked by the revision petitioners and PW3 sustained grievous hurt as she was attacked with a chopper by the third revision petitioner inflicting an injury on her right eyebrow. It is the prosecution case that PW3 was CRRP621/2007 4 taken to Government hospital, Kadackal on the same night and was referred to Medical College Hospital, Thiruvananthapuram and on the next day Pws.1 and 2 were got examined by the doctor and Exts.P8 and P9 wound certificates were prepared. According to revision petitioners, the incident was not as spoken to by Pws.1 to 3 or as alleged by the prosecution and the very genesis of the incident was suppressed. 6. Though learned Magistrate did not properly consider that aspect, learned Additional Sessions Judge considered the question whether there was a counter case or not. For the failure to produce any record relating to the counter case learned Sessions Judge found that C.C.784/2001 spoken to by PW1 is not a countercase and in any case it is not a countercase initiated based on a police report. Learned counsel appearing for the revision petitioners relied on the evidence of PW1, which establishes that there was a countercase. PW1 was specifically asked whether in respect of the same incident which took place at the same scene of occurrence, whether a criminal case is pending and CRRP621/2007 5 whether the said case is that PW1 and others caused injuries to the accused. PW1 admitted that such a case is pending. PW1 further admitted that C.C.784/2001 is that case and it is based on the version of the accused with regard to the very same incident which took place at the same scene of occurrence. If that be the case, it can only be a counter case of the main case. The question is then is whether cognizance in that case was taken on a police report or on a private complaint. If there is a counter case prosecution has a duty to produce the records in the counter case like the FIR, the scene mahazar and the charge sheet so that the Magistrate could find out the different version of the same incident. Prosecution did not produce any such material and in fact existence of the counter case itself was suppressed. When the evidence of PW1 shows that there was another case tried by the same Magistrate in respect of the same incident as C.C.784/2001, learned Sessions Judge was not justified in holding that it is not a counter case. If it is a counter case, prosecution should have made available the relevant CRRP621/2007 6 records in that case and the failure to produce the same definitely cast suspicion on the fairness of the prosecution. 7. As stated earlier, PW4 the only independent witness examined, turned hostile to the prosecution. What was thus available in support of prosecution case is only the evidence of Pws. 1 to 3. As per the prosecution case and the version of Pws 1 to 3, the incident took place at about 9 p.m on 9.9.2000. Ext.P1 First Information Statement of PW1 was recorded only on the next day at 10.30 a.m. Though learned Sessions Judge explained the delay stating that Pws. 1 and 2 had gone along with PW3 to the hospital and PW3 was advised to be taken to Medical College Hospital, Thiruvananthapuram from Kadackal hospital and therefore Pws. 1 and 2 could not have been examined by the doctor on the same night, PW1 had no such case. PW2 stated that he or PW3 had not gone to the hospital on that night. Therefore failure to inform the police on the same night cannot be explained on that ground. 8. The crucial question is whether the CRRP621/2007 7 incident occurred as deposed by Pws. 1 to 3. Though learned Magistrate and learned Sessions Judge held that evidence of Pws. 1 to 3 is credible and reliable, on going through the deposition of Pws.1 to 3, it is clear that their evidence was not properly appreciated. If the evidence of PW1 is to be believed, Pws2 and 3 could reach there only after PW1 was beaten with an iron rod by the second revision petitioner and that too when he cried aloud after sustaining the injury. But if the version of PW2 is to be believed, PW2 should be there from the very beginning as according to PW2 she heard the first revision petitioner telling PW1 after restraining him that he will not be allowed to go without beating him. If that be the case, version of PW2 cannot be accepted without a pinch of salt. When PW1 unambiguously admitted that there was a free fight between the two groups and on the side of the prosecution there were three persons and on the side of the accused there were five persons, Pws. 2 and 3 have no such case. If the evidence of Pws.2 and 3 are to be believed, there was absolutely no fight at all and PW1 CRRP621/2007 8 sustained the injuries from the hands of the revision petitioners and had fallen on the ground and thereafter PW2 and 3 were attacked by the revision petitioners. When this aspect is appreciated along with the improved version of the Pws.2 and 3, it is difficult to believe their version. If so appreciated, it is clear that the genesis of the incident was not unveiled by the prosecution. If the prosecution case is to be believed, PW1 was restrained by the first revision petitioner and that too stating that he will not be allowed to go without the first revision petitioner beating PW1. That itself is highly artificial. According to PW2 when the revision petitioners saw PW3 coming to the spot, second revision petitioner asked third revision petitioner to get a chopper and third revision petitioner went to their house and returned back with a chopper and with that chopper inflicted injury on PW3. But PW1 had no such case at all. Even PW3 had no such version. Therefore on appreciating the entire evidence, it is clear that the actual incident which took place at the scene of occurrence was not CRRP621/2007 9 revealed by Pws. 1 to 3. On their evidence, it is not possible to hold that revision petitioners are the aggressors. In any case in the nature of the evidence on record, revision petitioners are entitled to get benefit of reasonable doubt. Revision is therefore allowed. Conviction of the petitioners for the offence under section 341 and 324 read with section 34 IPC is set aside. They are found not guilty of the offences. The bail bonds executed by them stand cancelled. They are set at liberty. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006