IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 Crl.Rev.Pet.No. 1450 of 2001(G) ------------------------------- CRA.103/2001 of ADDL. SESSIONS COURT, ALAPPUZHA CC.987/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONERS/APPELLANTS/ACCUSED NOS. 1 TO 4 --------------------------------------------------------------------------------- 1. GOPI, S/O. KARAPPAN OTTATHENGUTHARAYIL, WARD NO.2, THURAVOOR PANCHAYAT. 2. CHANDRAN, S/O. KARAPPAN OTTATHENGUTHARAYIL, WARD NO.2, THURAVOOR PANCHAYAT. 3. PUSHKARAN, S/O. VELUTHA ULLADANTHARA VEEDU, WARD NO.2, THURAVOOR PANCHAYAT. 4. PURUSHAN, S/O. VELUTHA ULLADANTHARA VEEDU, WARD NO.2, THURAVOOR PANCHAYAT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/RESPONDENT/COMPLAINANT: --------------------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.- BY PP SRI. P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP NO.1450/2001 ORDER IN CRL.M.P. NO.6843/01 IN CRL.R.P. NO.1450/01 DISMISSED 20.5.2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE PA TO JUDGE /TRUE COPY/ M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.R.P. No. 1450 OF 2001 -------------------------- Dated this the 20th day of May, 2010 O R D E R Accused 1 to 4 in C.C. No.987 of 1999 who were convicted and sentenced by Judicial First Class Magistrate-II, Cherthala, filed this revision challenging their conviction and sentence. Prosecution case was that due to previous enmity, eight accused formed themselves into an unlawful assembly with the common object of causing injuries to PW2 and PWs 3 and 6 his parents and in furtherance of their common object to cause grievous hurt and hurt on 18.4.1995 at about 7.30 PM, first petitioner from the courtyard of the house of PWs 2, 3 and 6 called PW2 and when PW2 came out of the house, he was attacked by all the accused and first petitioner caught hold of the hands of PW2 and pushed him down and using an iron rod beat PW2. When hearing the cry of PW2, PWs 3 and 6 came out of the house, they were also attacked. The first petitioner inflicted grievous hurt on the head of PW3 by hitting with an iron rod and third petitioner using a knife, inflicted hurt on the forehead of PW2 and other petitioners with stick caused hurt on PW6 and thereby committed offences under Sections 143, 147, 148, 447, 324 Crl. R.P..No.1450/01 2 and 326 read with Section 149 of Indian Penal Code. Third accused pleaded not guilty. The prosecution, apart from examining the injured PWs 2, 3 and 6, examined PWs1 and 5 independent witnesses and PW4 mahazar witness and PW7, the doctor who prepared Exts.P3 to P5 wound certificates of PWs 2, 3, & 6 and PWs 8 and 10, the Head Constable and the Investigating Officer and marked Exts.P1 to P8. Defence raised was that the incident did not take place in the courtyard of the house of PWs 2, 3 and 6 and instead it took place near to the house of one Usha and DW1 was examined to prove that fact. Learned Magistrate on the evidence, acquitted accused 5 to 8 of all the offences alleged. The petitioners were acquitted of the offences under Sections 143, 147 and 148 read with Section 149 of Indian Penal Code. First petitioner was convicted and sentenced for the offences under Sections 447, 326 and 324 of Indian Penal Code. Other petitioners were convicted for the offences under Sections 447 and 324 of Indian Penal Code. 2. Petitioners challenged the conviction and sentence before Sessions Court, Alappuzha in Crl. Appeal No.103 of 2001. Learned Sessions Judge on reappreciation of evidence, confirmed the Crl. R.P..No.1450/01 3 conviction and sentence and dismissed the appeal. It is challenged in the revision. 3. Learned counsel appearing for the petitioners and the learned Public Prosecutor were heard. 4. Learned counsel vehemently argued that the courts below has not properly appreciated the evidence and by ignoring the material contradictions and the inconsistencies courts below committed illegality in accepting the prosecution case. It was argued that when PWs 2, 3 and 6 were examined by PW7, the doctor their version was not the one which was subsequently alleged or sought to be proved from the box and even persons who are not arrayed as accused were alleged to have inflicted the injuries. It was also pointed out that the version of PW2 from the box is contrary and inconsistent with the version in Ext.P1 FI statement and in the light of the case in Ext.P1, courts below should not have accepted the evidence of PW2. Learned counsel also argued that as proved by the evidence of PW9 and PWs 2, 3 and 6, the version given by PWs 3 and 6 from the box is entirely different than what was disclosed to PW9 when their statements were recorded under Section 161 of Crl. R.P..No.1450/01 4 Code of Criminal Procedure and these aspects were not properly appreciated. It was argued that there was no sufficient light at the house of PWs 2, 3 and 6 as it was not electrified and according to PWs 2, 3 and 6 they had seen the incident from the light emanated from the kerosene lamp and in the nature of the case it is impossible to be believed. It was also pointed out that according to the prosecution the motive was that PW2 had made some advance towards the sister of accused 5 to 8 and because of that enmity the incident occurred and evidence of PWs 2, 3 and 6 would show that that incident was more than a year back and in such circumstances, the case should not have been believed. It was also argued that there is no reason to discard the evidence of DW1 and defence case is that PW2 sustained injury when he was attacked by the people as he made comments against Usha, who is residing away from their house and PWs 3 and 6 sustained injuries when they reached there and the scene of occurrence was not the courtyard of house of PWs 2, 3 and 6 but near the house of Usha are highly probable and in such circumstances, conviction is not sustainable. Learned counsel argued that in any case the conviction for the offence under Section Crl. R.P..No.1450/01 5 326 of Indian Penal Code as against the first petitioner will not lie. It is pointed out that if the evidence of PW2 is believed, grievous hurt was not caused by first petitioner but by the second petitioner and PW3 who sustained injury has no case when she was examined by the doctor that the injury was inflicted by the first petitioner and when an incident happened where several persons attacked the victim, it is impossible to say who actually inflicted the particular injury and in such circumstances the conviction of the first petitioner for the offence under Section 326 of Indian Penal Code is illegal especially when PW2 has no case that first petitioner inflicted that injury. It is argued that in any case considering the fact that the incident occurred in 1995, the substantial sentence may be avoided and if necessary petitioners are prepared to compensate the injured. 5. The fact that PWs 2 , 3 and 6 sustained injuries on the date and time as alleged by the prosecution cannot be disbelieved in the light of Exts.P3 to P6 wound certificates proved by the evidence of doctor PW7. The evidence of PW7 establishes that PWs 2, 3 and 6 were examined by him within three hours from the time of the incident and the doctor had noted the injuries found in Exts.P3 to P5 Crl. R.P..No.1450/01 6 wound certificates and those injuries were reported to be inflicted by the petitioners along with others. True, the alleged cause of injury disclosed to PW7 by PWs 2, 3 and 6 is not the same. As per Ext.P3 wound certificate of PW6, the alleged cause of injury is when petitioners 1, 2, 3 and the acquitted fifth accused and others came to their house at about 8 PM on 18.4.1995 armed with iron rod and bamboo stick attacked them. PW7 examined PW3 at 10.25 PM on the very same day and prepared Ext.P3. Ext.P4 the wound certificate of PW2 shows that the alleged cause of injury disclosed was sustained when first petitioner along with one Sukumaran and others attacked him with an iron rod from the house, at about 8 PM on 18.4.1995. The alleged cause of injury shown in Ext.P5, the wound certificate of PW3, is inflicted when petitioners 1, 2 and acquitted 5th accused and Kuttan and four or five other persons whose names are not known, tried to attack her son and PW3 tried to intervene and she was beaten on the head with an iron rod. When Ext.P1 FI statement of PW2 was recorded, a further development has been made. As per the version in Ext.P1, apart from the persons named in Exts.P3 to P5 the other accused as well as some unknown Crl. R.P..No.1450/01 7 accused were also implicated. When PW2 was examined he had given further development of the story and even with regard to the overt acts PW2 had a different case. Even though in Ext.P1 it is alleged that the injury sustained on the head of PW3 was caused by first petitioner, from the box the evidence of PW2 is that it was inflicted by the second petitioner. He deposed that first petitioner did not inflict any injury on PW3. The learned Magistrate and the learned Sessions Judge has accepted the evidence of PWs 2, 3 and 6, as against all the petitioners. The argument of the learned counsel is that it should not have been done because of the inconsistent version of PWs 3 and 6 as proved by PW9, the investigating officer as their version should not have been believed. I have gone through the evidence of PWs 2, 3 and 6 and PW9. I cannot agree with the submission of the learned counsel that the evidence of PWs 2, 3 and 6 are to be not trustworthy or are to be disbelieved in toto, because of the alleged inconsistencies or contradictions or for implicating those accused who were acquitted by the learned Magistrate. As stated earlier, the presence of PWs 2, 3 and 6 at the place from where they sustained injury cannot be disputed. Even though it was Crl. R.P..No.1450/01 8 argued that the incident happened not at the courtyard of the house of PWs 2,3 and 6 but at a different place near the house of Usha, on the evidence I find no reason to disbelieve the prosecution case. 6. Though it is alleged that PWs 2, 3 and 6 were attacked by the persons near to the house of Usha, as PW2 allegedly made comments against her, it cannot be believed. If the injuries were not inflicted by the petitioners but somebody else, as claimed by the defence, PWs 2, 3 and 6 would have foisted a false case against the petitioners and thereby allow the real culprits to escape. The case could have been appreciated if the defence case is that in addition to the real culprits, petitioners were also implicated because of the enmity. Apart from the case that there was dispute between the family of PW2 and accused 5 to 8, because of the alleged advancement made by PW 2 towards the sister of accused 5 to 8, there is no case of any previous enmity as against the petitioners to foist a false case against them. In such circumstances if the injuries were inflicted by persons who are close to Usha, it is not at all probable that a case would be foisted against the petitioners allowing the culprits to escape. In such circumstances, I find no reason to Crl. R.P..No.1450/01 9 interfere with the appreciation of evidence. 7. Even though there is some minor contradictions on the overt acts in the evidence of PWs 2, 3 and 6, I find no material contradictions on the crux of the incident. PWs 2, 3 and 6 were inside the house. The evidence of PWs 2, 3 and 6 show that first petitioner had called PW2 from the courtyard and PW2 went out of the house and then he was attacked. Though the version of PWs 3 and 6 as to what happened immediately thereafter may not be believed as they could reach there only subsequently, I find no reason to disbelieve this version of PW2. Subsequent events was spoken to by PWs 3 and 6. On a proper appreciation of the evidence it is absolutely clear that petitioners armed with deadly weapons like iron rod and stick inflicted the hurt on PWs 2,3 and 6. 8. True, there is no conclusive evidence as to who inflicted the grievous hurt on PW3. Because of the inconsistent version and the probability that the witnesses did not identify the particular person, who inflicted the injury and there is no connection with this and of Section 34 of Indian Penal Code conviction of the first petitioner for the offence under Section 326 of Indian Penal Code will not stand, as Crl. R.P..No.1450/01 10 one of the other petitioners could also have inflicted that injury. In such circumstances, conviction of the first petitioner for the offence under Section 326 of Indian Penal Code can only be set aside. But with regard to the offence under Section 324, there is conclusive evidence as against all the petitioners. There is also conclusive evidence to prove the offence under Section 447 of Indian Penal Code as petitioners have trespassed into the courtyard of the house of PWs 2,3 and 6. Conviction of the petitioners for the offences under Sections 324 and 447 of Indian Penal Code are therefore confirmed. 9. Then the question is only regarding the sentence. Learned Magistrate and the learned Sessions Judge did not consider the question of granting the benefit of Probation of Offenders Act to the petitioners. Considering the fact that the offence proved against them are only under Sections 447 and 324 of Indian Penal Code and that the incident occurred in 1995, it is in the interest of justice to direct the learned Magistrate to call for a report from the District Probation Officer and decide whether petitioners are entitled to be released on probation. Crl. R.P..No.1450/01 11 In such circumstances, revision is allowed in part. Conviction and sentence of the first petitioner for the offence under Sections 326 of Indian Penal Code is set aside. Conviction of the petitioners for the offences under Sections 447 and 324 of Indian Penal Code are confirmed. Sentence awarded by the learned Magistrate as confirmed by the learned Sessions Judge is set aside. Judicial First Class Magistrat-II, Cherthala is directed to call for a report from District Probation Officer against the petitioners and decide whether petitioners can be granted the benefit of Probation of Offenders Act and pass appropriate sentence. Petitioners are directed to appear before the learned Magistrate on 28.6.2010. M.SASIDHARAN NAMBIAR (Judge) vps Crl. R.P..No.1450/01 12 Crl. R.P..No.1450/01 13