IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 2115 of 2006() ------------------------------ CRA.342/2003 of SESSIONS COURT, THODUPUZHA CC.342/2003 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER(S): PETITIONER/PETITIONER ------------------------------------------- SAJEEV KUMAR, THIYANNOOR HOUSE, KANJIRAMATTOM KARA, THODUPUZHA VILLAGE. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENT(S): RESPONDENT -------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADDL. R2: RAJENDRA PRASAD, S/O. GOVINDAN NAIR, AGED 45 YEARS, PUTHOOTTU VEEDU, KANJIRAMATTOM KARA, THODUPUZHA VILLAGE ADV. SRI.SAJAN MANNALI FOR ADDL.R2 (De facto complainant) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON 19-12-2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. NO. 2115 of 2006 * * * * * * * * * * * * * * * * * * Dated: 19-12-2008 JUDGMENT The sole accused in C.C. 324 of 2003 on the file of the Chief Judicial Magistrate's Court, Thodupuzah is the revision petitioner. 2. The case of the prosecution can be summarised as follows:- On 29-9-2001 at about 10.30 a.m. the accused out of his previous enmity towards P.W.2 (Rajendra Prasad) abused P.W.2 calling obscene words from the pathway in front of his residence. Thereafter, he pulled P.W.2 and assaulted him and pushed him to the ground causing fracture on his right hand muscle. The accused has thereby committed offences punishable under Sections 294 (b) and 325 I.P.C. 3. On the accused pleading not guilty to the charge framed against him by the learned Chief Judicial Magistrate for offences punishable under Sections 294 (b) and 325 I.P.C. the Crl.R.P. NO. 2115 of 2006 -:2:- prosecution was permitted to adduce evidence in support of its case. During the trial of the case, the learned Magistrate altered the charge for offences punishable under Sections 294 (b) and 326 I.P.C. The prosecution altogether examined 8 witnesses as P.Ws 1 to 8 of whom P.Ws 1 to 4 and 6 were alleged to be the occurrence witnesses. Out of them P.W.1 turned hostile to the prosecution. The prosecution got marked six documents as Exts.P1 to P6. 4. After the close of the prosecution evidence the accused was questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He stated before Court that P.W.2 , his brother Ayyappan and his wife Valsala (P.W.3) had jointly assaulted him and inflicted injuries on him and he was treated in the Co-operative Hospital for the injuries and that there is a case against them before the learned Magistrate. 5. The learned Magistrate after trial, as per judgment dated 3-5-2005 acquitted the revision petitioner of the offence punishable under Sec. 294 (b) I.P.C. but convicted him of the Crl.R.P. NO. 2115 of 2006 -:3:- offence punishable under Sec. 326 I.P.C. For the said conviction, the revision petitioner was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 2,000/- and on default to to pay the fine to suffer simple imprisonment for one month. On appeal preferred by the revision petitioner as Crl. Appeal No. 155 of 2005 before the Sessions Court, Thodupuzha, as per judgment dated 3-5-2006 the learned Addl. Sessions Judge dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. I heard Advocate Sri. S.Gopakumaran Nair, the learned counsel appearing for the revision petitioner, the learned Public Prosecutor appearing for the State and Advocate Sri. Sajan Mannali the learned counsel appearing for the de facto complainant (P.W.2). 7. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision petitioner:- P.W.2 who says that he was attacked with a spade had no such case when he was examined by the doctor at 1 p.m. on 23-09-2001. The alleged cause of injury was subsequently Crl.R.P. NO. 2115 of 2006 -:4:- introduced on 1-10-2001 only as mentioned in Ext.P2 wound certificate. Even with regard to the alleged cause as belatedly introduced his version was that one out of the twins of Thiyyannoor House had assaulted him with a spade at 10.30 a.m. on 29-09-2001. Even though the accused is admittedly his neighbour, P.W2 was unable to mention the name of the accused. Even though a spade is the alleged weapon it was not seized or produced before court. In the case of P.W.3 who is the sister-in-law of P.W2 the courts below have disbelieved her deposition before court that she was also assaulted with a spade. In Ext.P3 wound certificate which was the earliest statement given by her what she has told the doctor is that she sustained the injury consequent on a fall after avoiding a blow with a spade. Her case diary contradiction proved as Ext.D2 is also to the effect that when she went to the scene of occurrence she saw the accused quarreling with her husband Ayyappan and when she intervened the accused pushed her down . She has categorically stated that after she reached the scene of occurrence nobody else had come there. If so, P.Ws 4 and 6 who figured as independent witnesses to the occurrence could not have witnessed the occurrence. Likewise, Ayyappan who was Crl.R.P. NO. 2115 of 2006 -:5:- allegedly involved in the quarrel was not even cited as a charge- witness. The specific case of P.W.2 in Ext.P1 F.I. statement is that the occurrence was seen by P.W.4 and Kandathinkara Veettil Hari. But P.W.6 is Sooryankunnil Hari. P.Ws 4 and 6 claim to have seen the occurrence while returning after having bath from the nearby river. The investigating officer examined as P.W.8 has conceded that it was P.W.2 the de facto complainant who started the occurrence. The above admission coupled with the fact that a counter case was also registered on the basis of a complaint by the accused would clearly indicate that the prosecution has been guilty of suppressing the genesis of the occurrence. The courts below have overlooked these vital aspects. 8. I am afraid that I cannot agree with the above submissions. The learned trial Magistrate who had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe P.Ws 2, 3, 4 and 6 who are the occurrence witnesses of whom P.Ws 2 and 3 are the injured. It is true that the statement of P.W.2 to the doctor has been incorporated in Ext.P2 wound certificate only on 1-10-2001 eventhough P.W.2 was examined by the doctor at 1 p.m. on 29-09-2001. But then Crl.R.P. NO. 2115 of 2006 -:6:- on 29-9-2001 at 1 p.m. itself P.W3 was examined by the doctor and she had told the doctor that she sustained the injuries consequent on a fall from the property while avoiding a blow with a spade by the accused at 10.30 a.m. on the same day. The evidence in this case shows that the neighbouring property of P.W.2 is lying at a level of more than six feet and the occurrence took place at the boundary. In spite of the order of injunction against the accused from the civil court he had dared to go to the boundary and cause mischief there using a spade. Both P.Ws 2 and 3 who are the injured witnesses havd spoken in terms of the prosecution case although P.W.3 over exaggerated her version by deposing that she was actually struck with a spade. But that has nothing to do with that part of the prosecution case pertaining to the act of the accused assaulting P.W.2. The medical evidence also fits in with the version given by P.Ws. 2,4 and 6. It is true that the family name of P.W.6 is “Kandathinkara veedu”. But then P.Ws.2, 3 and 4 have deposed that it was P.W.6 who accompanied P.W.4 from the bathing place to the place of occurrence to witness the occurrence. Moreover, no question was put to P.W. 6 that he was Sooryankunnel Hari. Crl.R.P. NO. 2115 of 2006 -:7:- 9. Equally misconceived is the argument based on the alleged suppression of the genesis of the occurrence. P.Ws 2 and 3 were not armed with any weapon when they were assaulted by the accused. The counter case registered against P.Ws 2 and 3 ended in acquittal indicating that the version given by the accused was false. Hence, I am not inclined to accept the said contention as well. 10. What emerges from the oral and documentary evidence in the case is that the accused who had no business to meddle with the boundary had provokingly attracted P.Ws 2 and 3 to the boundary resulting in the latter being assaulted by the accused. It is true that P.W.2 had sustained a fracture. P.W. 5 the doctor has deposed that the fracture sustained by P.W2 could also be sustained on account of a fall. Eventhough the specific case of the prosecution was that P.W.2 was assaulted with a spade, no weapon has been seized or produced in the case. The police charge was also for an offence punishable under Sec. 325 I.P.C. It was the learned Magistrate who altered the charge to one punishable under Sec. 326 I.P.C. On the evidence before court, I have no hesitation to conclude that in the absence of any conclusive evidence of user of any Crl.R.P. NO. 2115 of 2006 -:8:- dangerous weapon and in view of the medical possibility spoken to by P.W.5, the doctor, the offence which is made out is only one punishabale under Sec. 325 I.P.C. The conviction is, accordingly, altered from Sec. 326 I.P.C. to Sec. 325 I.P.C. 11. Pending this revision, the de facto complainant has compounded the offence with the accused and a joint petition has been filed under Sec. 320 (2) Cr.P.C. as Crl.M.A. 10925 of 2008. The composition is recorded and it will have the effect of acquitting the revision petitioner/accused of the offence punishable under Sec. 325 I.P.C. This Revision is allowed as above. Dated this the 19th day of December 2008. V. RAMKUMAR, (JUDGE) ani.