IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 Crl.Rev.Pet.No. 1249 of 2002 ----------------------------------------------- CRA.57/1997 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.452/1994 of JFCM-II, NEYYATTINKARA .................... REVN. PETITIONER/(APPELLANT - ACCUSED): SHAJI, SON OF SREEDHARAN NADAR, MULLUVILA VADAKKARIKU PUTHEN VEEDU, UCHAKKADA,VENGANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR RESPONDENT/(RESPONDENT): STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.6908/2002 IN CRRP 1249/2002 DISMISSED 6.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1249 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.452/1994, was convicted and sentenced for the offences under Sections 324 and 326 of Indian Penal Code by Judicial First Class Magistrate-II, Neyyattinkara. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A. No.57/1997. The injured defacto complainant filed Crl.R.P.No.40/1997 before the same court challenging the inadequacy of the sentence. Learned Additional Sessions Judge dismissed both the appeal and the revision confirming the conviction and sentence. Petitioner filed this revision challenging the concurrent conviction and sentence. 2. Petitioner would contend that failure of justice occurred due to gross misreading and misappreciation of evidence and no charge was framed and read over to the petitioner and it is in CRRP 1249/02 2 flagrant violation of the provisions of Code of Criminal Procedure. It is contended that identification of the accused in the darkness of the night alleged to have been lit by the flashes reaching the scene from a passing scooter and the dim light from the mill should not have been relied on as they were only the result of figment of imagination. It is also contended that when the prosecution case is that the accused inflicted two cuts, medical records show that there are five injuries, which stand unexplained and in such circumstances, conviction of the petitioner is not sustainable. 3. Prosecution case is that on 23.6.1994 at about 10.15 p.m., PW1, the injured, was walking along the pathway towards Lakshamveedu Colony. Petitioner, his neighbour and also a previous employee of PW1's oil mill, due to previous enmity, attacked him with a sword and voluntarily inflicted grievous hurt and hurt to PW1 and thereby, committed offences under Sections 324 and 326 of CRRP 1249/02 3 Indian Penal Code. PW1 was examined by PW12, the Doctor, on the same day at 11.30 p.m. and prepared Exhibit P6 wound certificate. He was treated as an inpatient. Exhibit P1 F.I. Statement was furnished by PW1 on 24.6.1994 at about 5 p.m. and PWs 10 and 11, the Investigating Officers, investigated the case and laid the charge. When the charge for the offences under Sections 324 and 326 of Indian Penal Code was read over and explained to the petitioner, he pleaded not guilty. 4. Prosecution examined twelve witnesses and marked six exhibits and identified MO1 sword. On the side of the petitioner, no witness was examined. Exhibit D1, the copy of the charge sheet in C.C.No.619/1993, was marked. 5. Learned Magistrate found the evidence of PW1 trustworthy and reliable. Finding that even if the evidence of PWs 2 and 3 are not relied on, the evidence of PW1 establishes that petitioner voluntarily caused grievous hurt and hurt to PW1. Learned Magistrate, on appreciation of the evidence CRRP 1249/02 4 of PWs 2 and 3, found that their evidence is also reliable and it corroborates the evidence of PW1. Based on these findings, petitioner was convicted for the offences under Sections 324 and 326 of Indian Penal Code. After hearing the petitioner, learned Magistrate sentenced the petitioner to rigorous imprisonment for one year for the offence under Section 326 of Indian Penal Code. In view of the sentence, no separate sentence was awarded for the offence under Section 324 of Indian Penal Code. Learned Additional Sessions Judge, re-appreciated the evidence and confirmed the findings. The contention of the petitioner is that courts below did not properly appreciate the evidence and in the light of the evidence, courts below should not have found that petitioner committed the offences. 6. Evidence of PW12, the Doctor, with Exhibit P6 wound certificate, establish that PW12 examined PW1 at 11.30 p.m. on 23.6.1994 and it was disclosed to the Doctor by PW1 that he sustained the injuries when he was attacked with a sword by Shaji, the CRRP 1249/02 5 petitioner herein, on the same day at about 10.15 p.m. PW12 recorded the following injuries found on PW1: 1) 5 cm x 3 cm wound over the left wrist dorsum cutting extends of tendons and the lower end of radius and the ulna completely. 2) 3 cm x ½ cm x 1 cm incised wound over the angle of mouth left side. 3) 15 cm x 6 cm incised looking wound over the front of the left knee cutting the upper end of tibia. 4) 4 cm x ½ cm incised looking wound on the right on the little finger. 5) 5 cm x ½ cm incised looking wound on the front of right knee. The alleged cause of injuries disclosed to the Doctor establishes that within one hour of the incident, PW1 reported to the Doctor that he sustained the injuries in the hands of the petitioner and that too, inflicted with a sword. In Exhibit P1 F.I. Statement, recorded by the Head Constable, on the next day at 5 p.m., PW1 had narrated the entire incident. When PW1 was examined, he has given the very same version. CRRP 1249/02 6 Learned Magistrate and learned Additional Sessions Judge appreciated the evidence of PW1 and found his evidence trustworthy and reliable. The challenge against the evidence of PW1 is that if he had sustained injuries as disclosed by him, he could have sustained only two injuries and not five injuries as stated in Exhibit P6 wound certificate. 7. It is contended that evidence of PW12 shows that those five injuries, recorded in Exhibit P6 wound certificate, are distinct and separate injuries and therefore, there should have been five separate overt acts as against the two, deposed by PW1 and in such circumstances, the incident should not have happened as disclosed by PW1. Learned Additional Sessions Judge appreciated this aspect in the proper perspective. It was found that injuries 1, 2 and 4 could be inflicted by a single overt act. So also, injuries 3 and 5 could be caused by a single act. From the nature of the injuries, the finding of the learned Additional Sessions Judge is perfectly correct. When the CRRP 1249/02 7 petitioner inflicted injuries, which cut the lower end of radius and ulna completely, it is possible that before the weapon landing at the wrist, it had touched on the left side of his mouth as well as on the right little finger. If that be so, these three injuries could be caused by a single act. Similarly, the third injury was on the front of left knee and the fifth injury was on the front of right knee. If the said injuries were caused by a sword like MO1, it is possible that by a single act, both these injuries could be inflicted. In such circumstances, based on the medical records, evidence of PW1 cannot be disbelieved. Moreover, it is to be borne in mind that PW1, in the ordinary course, will not allow the real culprit to escape by falsely naming the petitioner as the accused, if, in fact, the injuries were not inflicted by him. If it was not the petitioner, who inflicted the injuries on PW1, within one hour of the incident, PW1 would not have disclosed to the Doctor that petitioner inflicted the injuries and CRRP 1249/02 8 thereby allow the real culprit to escape. When the entire evidence is appreciated in the proper perspective, I do not find any reason to differ with the findings of the learned Magistrate and learned Additional Sessions Judge that evidence of PW1 is trustworthy and reliable. So also, evidence of PWs 2 and 3 were properly appreciated by the learned Magistrate and learned Additional Sessions Judge. I do not find any reason to differ on the reliability of their evidence also. Their evidence corroborates the evidence of PW1 that it was the petitioner who inflicted the injuries on PW1. Though it was contended that there was no light at the scene of occurrence, evidence establishes that there was sufficient light at that time for the witnesses to identify the petitioner, who inflicted the injuries on PW1. 8. Though it is contended in the revision that charge was not read over and explained to the petitioner and reliance was placed on the observations in the judgments of the learned CRRP 1249/02 9 Magistrate and learned Additional Sessions Judge that original charge was not seen in the records, neither the judgment of the learned Magistrate nor the learned Additional Sessions Judge show that records were verified and it was found that original charge framed by the court and read over to the accused was not available in the case file. At the same time, proceedings paper of the learned Magistrate shows that charge was framed and read over and explained to the petitioner on 23.2.1995 and he pleaded not guilty. Moreover, the records of the courts below show that Item No.11 of the Index is the original charge framed by the then learned Magistrate containing his signature as well as the court seal. Therefore, it cannot be contended that no charge was framed and read over to the petitioner as claimed in the revision petition, as the records disprove the same. 9. Evidence establish that petitioner voluntarily caused grievous hurt and hurt to PW1 by a sword, which is a dangerous weapon. It is true CRRP 1249/02 10 that MO1 sword alleged to have been used for inflicting the injuries and its recovery was not properly proved, as the recovery mahazar does not show how the weapon was recovered, though PW10, the Investigating Officer, deposed that it was recovered based on the information furnished by the petitioner. The mahazar does not support that case and no evidence was adduced to prove the information alleged to have been furnished by the petitioner, which lead to the recovery. But, that will not affect the prosecution case, as it is proved that the injuries sustained by PW1, evidenced by Exhibit P6 wound certificate, are inflicted with a sword, which is a dangerous weapon. In such circumstances, conviction of the petitioner for the offences under Sections 324 and 326 of Indian Penal Code is perfectly legal. 10. Then the only question is regarding the sentence. Learned Magistrate did not award separate sentence for the offence under Section 324 of Indian Penal Code, in view of the sentence awarded CRRP 1249/02 11 for the offence under Section 326 of Indian Penal Code. Learned Magistrate sentenced petitioner to rigorous imprisonment for one year for the offence under Section 326 of Indian Penal Code. Considering the nature of the offence and the mode in which the injuries were inflicted on PW1, I find no reason to interfere with the sentence also. Revision is dismissed. Judicial First Class Magistrate-II, Neyyattinkara is directed to execute the sentence. 6th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1249/02 12 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1249/02 -------------------------- ORDER 6th July, 2010