IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 77 of 2008() ---------------------------- CRA.14/2007 of III ADDL.SESSIONS COURT, KOLLAM CC.621/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, PUNALUR .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED 1 TO 3; ----------------------------------------------- 1. RAJA KUMAR, S/O.MAYANDI, VENTURE ESTATE LAYAM, AANACHADI, KUZHUTHURUTHI MURI, ARIYANKAVU VILLAGE, PATHANAPURAM. 2. AANADRAJ, S/O.BALUSWAMI, LAYAM, AANACHADI, KUZHUTHURUTHI MURI, ARIYANKAVU VILLAGE, PATHANAPURAM. 3. CHANDRA, D/O.LEKSHMI, VENTURE ESTATE LAYAM, AANACHADI, KUZHUTHURUTHI MURI, ARIYANKAVU VILLAGE, PATHANAPURAM. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- THE STATE OF KERALA, REPRESENTING S.I. OF POLICE, THENMALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 77 OF 2008 ------------------------------------------ Dated this the 7th day of November, 2008 O R D E R Petitioners are the accused in C.C.621 of 2002 on the file of Judicial First Class Magistrate-I, Punalur. They were convicted and sentenced for the offences under sections 341, 326 and 324 read with section 34 of Indian Penal Code. Prosecution case was that on 10.5.2002 at about 8.30 p.m. while PW2 was about to close the canteen and return to his house, petitioners 1 and 2 came to the courtyard and called PW2. When PW2 stepped into the courtyard, petitioners 1 and 2 caught hold of his hands and restrained him and third petitioner, the wife of first petitioner, with an iron rod beat on his right hand causing a fracture and also beat him on the shoulder and he cried. Hearing it PW1, the son of PW2, came there and when PW1 tried to intervene, first petitioner beat him on his head with the iron rod. PW3, the wife of PW2, also reached there and then the 3rd petitioner beat PW1. Hearing the sound, by the time people gathered there, petitioners ran towards their house and got inside and locked. They thereby committed the offences CRRP77/08 2 under sections 341, 326 and 324 read with section 34 of IPC. PWs 1 and 2 were taken to Government Hospital, Punalur, from where PW7 the Doctor examined PW1 at 10.30 p.m. on 10.5.2002 and prepared Ext.P3 recording the injuries and thereafter examined PW2 and prepared Ext.P4 wound certificate after PW1 furnished Ext.P1 F.I. Statement on 15.5.2002. PW6 prepared Ext.P2 scene mahazar. After completing the investigation, PW8 submitted a charge sheet, which was taken cognizance by learned Magistrate. 2. Petitioners pleaded not guilty. Prosecution examined 8 witnesses and marked 6 exhibits and identified MO1 stick. On the side of the defence, Ext.D1, portion of Ext.P1 F.I. Statement, was marked. Learned Magistrate on the evidence found the petitioners guilty. They were convicted and sentenced for the offences under sections 324, 341 and 326 read with section 34 of IPC. Petitioners challenged the conviction and sentence before Sessions Court, Kollam in Crl. Appeal 14 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and modified the sentence only as against the second petitioner, reducing the sentence to simple imprisonment for three months each for the offence under sections 324 and CRRP77/08 3 326 of IPC. Revision is filed challenging the conviction and sentence. 3. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 4. The learned counsel argued that the Courts below did not properly appreciate the evidence and fact that there was a counter case wherein PWs 1 and 2 were the accused and second petitioner was injured as C.C.208 of 2004, were not properly appreciated by the Courts below. It was argued that even though evidence of PWs 1 and 2 establish that police was informed of the incident on the same night and evidence of PW1 shows that before proceeding to the hospital they had gone to the police station and so Ext.P1 cannot be the F.I. Statement as police was already informed of the incident by PW1 and Ext.P1 was created later suppressing the original F.I. Statement. It was argued that when PWs 1 and 2 were examined by PW7 and Exts.P3 and P4 wound certificates were prepared, there was no case that petitioners inflicted the injuries on them and case was that injuries were inflicted by beating with an “Ulakka” and when PWs 1 to 3 were examined, they had no such case. It was argued that when Ext.P1 F.I. Statement and evidence of PWs 1 CRRP77/08 4 to 3 show that injuries were inflicted with an iron rod, no iron rod was recovered and no explanation was offered as to what happened to the iron rod. It was also argued that when the genesis of the actual incident was not brought out, Courts below should not have relied on the interested versions of PWs 1 to 3, especially when PWs 4 and 5 the independent witnesses turned hostile and did not support the prosecution case. It is argued that in any case Courts below should have granted the benefit of doubt to the petitioners. 5. The incident was on 10.5.2002 at about 8.30 p.m. PWs 1 and 2 the injured who are the son and father were examined by PW7 on the same night at 10.30 p.m. and prepared Exts.P3 and P4 wound certificates. The evidence of PW1 is that immediately after sustaining the injury, hearing the sound the neighbours gathered there and by that time the culprits ran away and got into their houses and locked inside and PWs 1 and 2 were taken to Government Hospital, Punalur. Evidence of PW1 also shows that while they were proceeding towards the hospital, the Sub Inspector was proceeding to the scene of occurrence. According to PW1 police came there on the information of the incident furnished by the second petitioner CRRP77/08 5 over phone and on the way they met the police officer. It is the evidence of PW1 that before reaching hospital they had gone to the police station and informed the incident. If that version of PWs 1 and 2 is true, there should be an F.I. Statement about the incident as they had reached police station and informed of the incident and Ext.P1 cannot be the first information statement, which was recorded five days after the date of incident. It is more so because even according to PW1 immediately after the incident, second petitioner had informed the police over phone about the incident and police was rushing to the spot while PWs 1 and 2 were taken to the hospital. As per the evidence they met on the way. There is force in the argument because if the case is true there should be a first information about the incident five days prior to Ext.P1 F.I. Statement. It is clear that the true genesis of the incident was suppressed. 6. When PWs 1 and 2 were examined by PW7 the doctor, there was no case for them that the assailants inflicted injury on them either by beating with an iron rod or with a wooden stick. When PWs 1 to 3 were examined, evidence was that PW2 was beaten with an iron rod and he sustained fracture on his hand and when PW1 rushed there and rescued him from the CRRP77/08 6 petitioners he was also beaten with an iron rod. The injuries noted in Exts.P3 and P4 are mainly lacerated injury 1 x 5 cm over the frontal aspect of scalp and lacerated injury 1 x 6 cm on the occipital region of the forehead of PW1 and lacerated injury 1 x 10 cm over the frontal region of scalp and a compound fracture on both bones of the right forearm apart from contusion over the posterior aspects of left forearm. The injuries do not correspond to the beating with an iron rod or wooden stick except the fracture on the right forearm. 7. When the injured in the main case is the accused in the counter case and accused in the main case is the injured in the counter case, prosecution has a duty to produce records of the counter case also in the main case so that Court can appreciate the evidence as to what really transpired at the scene of occurrence. Strangely records in the counter case were not produced in this case. Hence from the evidence it is not clear whether first information in respect of that case was recorded earlier to Ext.P1 in this case. When appreciating the entire evidence in the proper perspective, it cannot be said that the prosecution has unveiled the true genesis of the incident and that the incident had taken place as spoken to by PWs 1 to 3, CRRP77/08 7 who are none other than the husband, wife and son. Unfortunately these material aspects were not considered by the Courts below and based on the injuries sustained by PWs 1 and 2 the evidence of PWs 1 to 3 petitioners were convicted. When the true genesis of the incident was not brought out and on the evidence it is not possible to conclusively hold that incident occurred as spoken to by PWs 1 to 3, especially when the first information with regard to the incident was suppressed and Ext.P1 F.I. Statement was prepared only five days thereafter. Petitioners are at least entitled to the benefit of reasonable doubt for the failure of the prosecution to establish the true genesis of the incident and how it developed. In such circumstances conviction of the petitioners is set aside. Granting benefit of reasonable doubt to the petitioners, they are acquitted. The bail bonds executed by them stand cancelled. If petitioners deposited any amount before learned Magistrate as directed by this Court, they are entitled to withdraw the same. M. SASIDHARAN NAMBIAR, JUDGE Okb/-