IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 1975 of 2003() ------------------------ SC.30/2000 of THE ADDL. DISTRICT & SESSIONS COURT(ADHOC FAST TRACK COURT-I, MANJERI. .................... APPELLANT(S): ACCUSED --------------------- 1. PATHARI HAMSA @ THELI, S/O. HYDRU, PATHARI HOUSE, KAKKOOTH, PERINTHALMANNA. 2. ABBAS, S/O. HASSANKUTTY, KAKKOOTH, PERINTHALMANNA. BY ADV. MR.K.M.SATHYANATHA MENON RESPONDENT(S): COMPLAINANT/STATE ----------------------- 1. THE CIRCLE INSPECTOR OF POLICE, PERINTHALMANNA, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1975 OF 2003 = = = = = = = = = = = = = = = Dated this the 24th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed in S.C.30/00 of the Addl. Sessions Judge, Adhoc, Fast Track Court-I, Manjeri. The accused two in number were charge sheeted for offences u/Ss.341, 323, 304 r/w S.34 IPC and they were convicted u/Ss. 341 and 323 IPC and sentenced to undergo imprisonment for one year u/s 323 and one month u/s 341. They were also directed to pay a fine of Rs.1,000/- each u/s 323 and Rs.500/- each u/s 341 IPC. Set off was also allowed. It is the against that decision the accused has come up in appeal. It is the case of the prosecution that on 18.8.98 the accused together wrongfully restrained one Abdul Razak pressed him against a goods auto rickshaw beaten him and fisted him and kicked him resulting in injuries to him and when PW10 came to the rescue he was also beaten which resulted in the sustainment of injuries to Crl.A. 1975 OF 2003 -2- them and they were removed to the hospital immediately. Unfortunately on the very same evening the said Abdul Razak died and therefore the police registered cases u/Ss.341, 323 and 304 IPC. The trial court on an elaborate consideration of the materials found that evidence is not sufficient to attract S.304 IPC and therefore did not find them guilty under that Section but it found the accused guilty u/Ss. 323 and 341 IPC. 2. The learned counsel for the appellant very strongly contends before me that the evidence of PW10 and PW11 when read with the evidence of PW1 and other materials would show that the case of the prosecution is not proved and therefore the accused should be acquitted. Ext.P4 is the First Information Statement. It has set the law in motion. It is given by PW10 at 10.30 p.m. on 18.8.98. It is his case that at 6.45 p.m. on 18.8.98 he had seen the accused inflicting the blows, kicks and fisting on Abdul Razak and when he wenn to the spot he was also beaten with a stick used for firewood and thereafter also was beaten with the hands. It is also his version that the auto rickshaw driver Mohandas and Haridas Crl.A. 1975 OF 2003 -3- etc. came to the spot and on seeing them the accused left the place of incident. Later Abdul Razak died and according to him there was a dispute between the said Razak and A1 on account of misplacement of a watch in the auto rickshaw and that was given to one Harris by the deceased. According to PW10, Abdul Razak had told him that A2 always used to threaten him with dare consequences. PW1 is the Doctor who had examined the said Abdul Razak as well as PW10. A perusal of the wound certificates, Exts.P1 and P2 would reveal that Abdul Razak had sustained a small abrasion of 1 c.m. on the root of the right toe and he had no other external injury. Ext.P2 would reveal that PW10 has an abrasion of about .5 x.5 cm on the right side of the neck. PW1, the Doctor had deposed that these witnesses had told him that who had attacked them and that the injuries noted are simple in nature. A perusal of Exts.P1 and P2 would reveal that the name of the accused are stated before the Doctor by the respective injured. I am conscious that such a statement is not a conclusive proof of the persons involved in an incident. Crl.A. 1975 OF 2003 -4- It is in this back ground one has to refer to the evidence of PW10 and PW11. So far as the offence u/s 304 is concerned it is true that Abdul Razak died but his cause of death as revealed from the postmortem report is of a choronial thrombosis and a questioning the Deputy Superintendent of Police would show that he has not directed his investigation in that direction whether even the family members knew about his ailment regarding the heart. Since there is no finding of guilt u/s 304, this Court cannot consider it at all and so one has to confine its discussion on the evidence available for the purpose of finding out whether S.323 and 341 IPC had been established or not. 3. PW10 is one of the injured who had given Ext.P4. He had deposed before Court that on 18.8.98 when he was coming back from the hotel after taking some tea he saw the accused taking Razak to the goods auto rickshaw and beating him and kicking him. When he interfered, as per Ext.P4 statement, he was beaten with a stick and later was beaten with hands. But there is a clear statement in Ext.P4 as well as Crl.A. 1975 OF 2003 -5- in the oral evidence of PW10 that the accused had beaten both Abdul Razak and him. He also mentioned the name of PW11, Mohandas in Ext.P4 statement itself. The learned counsel brought my attention to the contradictions in the evidence of PW10. It is to the effect that before the Doctor as well as in Ext.P4 his version is that he had been beaten with a stick. But when it comes to the question of evidence he would say that he was only beaten with his hands. There was an attempt to point out this contradiction in 161 statement but unfortunately it is not seen marked and therefore it cannot be used but at any rate it has to be stated that it is a clear version of PW10 that the accused had beaten him and Abdul Razak. It has to be remembered that Ext.P4 statement was given at 10.30 p.m. when much time has not been lapsed after the death of Abdul Razak and therefore one can understand the situation or the state of mind of a person. It cannot be considered as a material contradiction so as to affect the veracity of his version because he very clearly spells out from the time he had seen the attack till he was injured and later hospitalised. Crl.A. 1975 OF 2003 -6- PW11, Mohandas is an auto rickshaw driver by profession and he had deposed before Court that he had seen both the accused inflicting blows on PW10 and the deceased Abdul Razak. He is not in a position to say the manner in which they were beaten but he is sure about the fact that they were beaten by the accused. When there is a commotion in an area and people attack one cannot precisely point out the exact mode of attack or that what all weapons were used for attack. If one gives such a version, to my conscience I feel it is a matter of unnatural one. Here the evidence of PW11 is natural and it appears to be probable and acceptable. The learned counsel had brought my attention to the evidence of DW1 who was cited as witnesses by the prosecution but was examined as a defence witness. That itself will show what has been the attitude of this witness. His evidence is lacking confidence and not acceptable. So from the evidence of PW10 and 11 coupled with the medical evidence available I have absolutely no hesitation to hold that the accused had restrained both Abdul Razak and PW10 and thereafter had beaten them thereby Crl.A. 1975 OF 2003 -7- attracting the offences u/Ss.341 and 323 IPC. Therefore the said finding does not call for any interference. 4. Now turning to the question of sentence. It is true that the injuries noted are absolutely minor in nature and they are only superficial abrasions and it is proved by doctors evidence as well and therefore I feel the Court below was little harsh on imposing the maximum penalty provided by the statute. It is unfortunate that Abdul Razak died but the cause of his death was heart attack which reveals that he had cardiac problem with restrictive blood supply and that has resulted in his death. Nobody knew that he was a heart patient even including the family members. Therefore it should not be taken as a guide to impose punishment on these two persons. Therefore I feel interest of justice can be met by awarding lesser punishment. It is seen that both of them had been apprehended on 19.8.98 and they were released on bail on 9.9.98. They were under the bars for a period of 20 days. I think sentence of imprisonment need not be further elongated and this will be sufficient so far as the imprisonment portion is Crl.A. 1975 OF 2003 -8- concerned. But I feel the maximum fine of Rs.1,000/- each u/Ss.323 and Rs.500/- each u/s 341 can be imposed on the accused. So the sentence is modified accordingly. In the result the Crl.A is disposed of as follows. (1) The finding of guilt u/s 232 and 341 IPC r/w S.34 are confirmed. (2) The sentence is modified and the sentence of imprisonment is reduced to the period already undergone and they are further directed to pay a fine of Rs.1,000/- each u/s 323 and Rs.500/- each u/s 341 IPC. (3) If they do not pay the fine on or before 31.8.09 the Court shall take steps for realisation of the amount and as a default sentence they shall undergo one month's imprisonment each. M.N. KRISHNAN, JUDGE. ul/-