IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1963 of 2005(A) -------------------------------------------- CRL.A.60/2005 OF SPL. COURT (NDPS ACT CASES), THODUPUZHA, CC.152/2001 OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA. .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: --------------------------------------------------------------------- MADHUKUMAR, S/O. RAMAKRISHNA PANICKER, LAKSHMI VILASAM VEEDU, THODUPUZHA, IDUKKI DISTRICT. BY ADV. MR.BABU S. NAIR. RESPONDENT/ RESPONDENT/COMPLAINANT/STATE: ----------------------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1963/2005-A: ORDER ON CRL.M.APPLN. NO. 13326/2005 IN CR.R.P.NO.1963/2005-A DISMISSED 30/03/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.1963 OF 2005 (A) ----------------------------------- Dated this the 30th day of March, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 326 of the Indian Penal Code. He had pleaded not guilty to the offence. The learned Magistrate, after trial, found him guilty of the offence and he was thereupon convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- with default term of simple imprisonment for three months. In appeal, the learned Sessions Judge confirmed the conviction, but modified the sentence reducing it to simple imprisonment for one year retaining the fine with default term of imprisonment. Aggrieved by the conviction and sentence, questioning its legality, propriety and correctness, the accused has preferred this revision. 2. The gist of the prosecution case in brief is thus: PW5, CRL.R.P.1963/05 2 the defacto complainant and the injured, is a taxi driver. PW1, the brother of the accused hired the taxi to reach his ancestral home. PW5 was asked to wait near a pump with the vehicle. A few minutes later, PW1 accompanied by the accused, reached the spot and the accused directed PW5, the taxi driver to take back PW1 in the vehicle. Accused then assaulted PW5 with a wooden reaper, and thereby, the injured sustained a fracture over his right hand. He was taken to a nearby hospital by the auto drivers and provided first aid. The next day, PW5 was admitted in a hospital at Perumbavoor and pursuant to intimation given, the police reached that hospital and recorded his statement. On the basis of his statement, Ext.P3 was registered for the offence punishable under Section 326 of IPC. After investigation, PW9, the S.I. of Police, Thodupuzha, laid the charge against the accused indicting of the offence under Section 326 of IPC. 3. The accused, on appearance, pleaded not guilty when the charges were made known. Prosecution thereupon examined PWs.1 to 9, got marked Exts.P1 to P5 and identified MO1, the weapon of the offence. The accused, when CRL.R.P.1963/05 3 questioned under Section 313 of Cr.P.C., maintaining his innocence contended that he was seeing the injured for the first time in the court and no incident as alleged had taken place. No defence evidence was adduced. The learned Magistrate, after appreciating the materials produced, found the accused guilty of the offence and he was thereupon convicted and sentenced as indicated earlier. The Sessions Judge in appeal, after reappreciation of the evidence, confirmed the conviction, but, modified the sentence. 4. I heard the learned counsel for the accused and the learned Public Prosecutor. The learned counsel for the accused assailed the concurrent verdict of guilty rendered against the accused contending that both the courts below have misappreciated the evidence overlooking the serious infirmities and material discrepancies borne out by the records produced by the prosecution. The long delay in registering the crime over the occurrence with no explanation from the prosecution for such delay was discarded by both the courts, is the grievance canvassed by the counsel. Occurrence took place at about 10.15 p.m. on 1.5.2001, but CRL.R.P.1963/05 4 the statement of the injured PW5 was recorded only at 3 p.m. on 4.5.2001 and Ext.P3 FIR was registered two days later as seen from the records. PW1, the injured and PW9, the investigating officer have not given any explanation for the long delay in the registering of the crime, according to the counsel. Further more, as per the version of the injured PW5, the weapon of offence was a cricket bat, as seen from his F.I.Statement but the weapon was stated as a wooden reaper, and identified as MO1, later in evidence. The serious discrepancy over the weapon as seen from his evidence itself was not given due consideration by the court below in examining the trustworthiness of PW5 and also the merit of the prosecution case, submits the counsel. Over and above these aspects, according to the counsel, other than the evidence of the injured PW5, there was nothing more in the materials tendered by the prosecution to prove the occurrence. According to the counsel, implicit reliance was not permissible on the solitary testimony of the injured to conclude that he sustained a fracture at the hands of the accused especially in view of the serious material discrepancies with respect to the weapon of offence and the CRL.R.P.1963/05 5 delay in registration of the crime. So much so, in reversal of the conviction passed by both the courts below, it is submitted, the accused is liable to be acquitted of the offence. The learned Public Prosecutor on the other hand, contended that the material discrepancies highlighted by the learned counsel for the accused in the evidence of PW5 with respect to the weapon of offence and also the delay in registration of the crime, both of them, have been considered by both the courts below, and for convincing reasons, it has been concluded that the above circumstances do not in any way affect the substratum of the prosecution case set up against the accused. Conviction of the accused is fully supported by legal evidence tendered by the prosecution, and in exercise of revisional jurisdiction, it is not liable to be interfered with, is the submission of the Public Prosecutor. 5. I have perused the records of the case giving consideration to the submissions made by the counsel of both sides. PW5 is the injured. His evidence as to how the occurrence took place, it is seen, is supported only by his earliest statement given as Ext.P1 and also the recovery of the CRL.R.P.1963/05 6 weapon of offence, MO1. The ocular witnesses cited by the prosecution and examined as PWs.1 to 3 had turned hostile denying the witnessing of the occurrence. In appreciating the sworn testimony of PW5, the injured, it is necessary to take into account the injuries suffered by him and also whether he has got any axe to grind against the accused to indict him of a grave offence. PW1 is none other than the brother of the accused. The prosecution case is that since the accused had some difference of opinion with PW1 and pursuant to the demand made by the accused directing the injured, the taxi driver, to take his brother in the same taxi, he was attacked with a wooden reaper. Even the accused has no suggestion that PW5, the injured, has got any animosity towards him to frame a false case against him and, further, to perjure against him before a court of law. The mere fact that PWs.1 and 3 had turned hostile to the prosecution, in the given facts of the case, has not affected the merit of its case. Then on the question of delay, what is borne out by the records is that immediately after the occurrence, the injured was taken to a local hospital and he was given first aid. Probably at that point of time, the fracture sustained by him could not have CRL.R.P.1963/05 7 been detected. The next day after he was taken to another hospital, the fracture was found out, as is evident from Ext.P2 wound certificate. Immediately after his examination in that hospital, it was treated as a medico lego case and police was intimated. The delay taken by the police to record his statement and register the case, by no stretch of imagination, can be taken advantage by the assailant, the accused in the case. Though there was a delay of two days in registering the crime, where there is nothing to show that PW5, the injured, had any animosity towards the accused for framing a false case the delay caused is only an innocuous circumstance. Then as regards the discrepancy in the evidence of PW5 relating to MO1 weapon of offence, which in Ext.P1 statement was stated by him as a cricket bat, the time of occurrence and the place, both cannot be ignored. PW5 was waiting with his vehicle as directed by PW1, who hired the vehicle. All of a sudden PW1, accompanied by his brother, accused, reached the spot and, then, it is the case of the prosecution, without any reason, the accused assaulted PW5, the taxi driver. If at all any mistake was made by him in identifying the weapon of offence when such an assault was made, that cannot be given CRL.R.P.1963/05 8 undue significance. After investigation, the police had identified the weapon of offence MO1, as a weapon reaper. In evidence, PW5 stated that the weapon of offence stated by him earlier in Ext.P1 statement was a mistake. The learned Magistrate had the opportunity to watch the demeanour and deportment of PW5, found his testimony reliable, convincing and trustworthy. The appellate court after reappreciating of the evidence also found his testimony acceptable, the infirmities in the evidence of PW5, which are highlighted by the learned counsel for the accused in the given facts of the case, do not in any way affect the trustworthiness of the witness. The concurrent finding entered by both the courts below on the materials produced by the prosecution to conclude that it has established the guilt of the accused for the offence, for which he was indicted, is not liable to be interfered with exercising revisional jurisdiction on the infirmities canvassed by the learned counsel for the accused, which are found to be immaterial. Such infirmities, in any way, do not affect the merit of the prosecution case. The learned counsel for the accused made a fervent plea for reduction of the sentence, submitting that at the time of CRL.R.P.1963/05 9 occurrence, he was aged only 25 years. It is further submitted that he is a first offender. Having regard to the totality of the facts and circumstances involved, and also considering the submission of the learned counsel, which appears to be true, I find the sentence of simple imprisonment for six months with a fine of Rs.25,000/- with default term of simple imprisonment for three months would be sufficient to meet the ends of justice. Sentence is modified accordingly. Fine amount, if realised, shall be paid as compensation to PW5, the injured. Revision is partly allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009