IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 Crl.Rev.Pet.No. 740 of 2000() ----------------------------- CRA.63/1995 of SESSIONS COURT, KOTTAYAM ST.1259/1989 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONERS/APPELLANTS/ACCUSED: ------------------------------------------------ 1. NOUSHAD, S/O.KUTTY, PARAYIL VEEDU, NATTASSERI KARA, PERUMBAIKADU VILLAGE. 2. VENUGOPAL, S/O. NEELAKANDA PILLAI, KOCHUPURACKAL VEEDU, CHALLUSSERI KARA, PERUMBAIKADU VILLAGE. 3. SHAJI, S/O. KUMARAN, PARAYIL VEEDU, NATTASSERI KARA, PERUMBAIKADU VILLAGE. 4. SHAJI KURIAN, S/O.EAPPAN KURIAN, PULICKAL VEEDU, AMAYANNOOR KARA, AYARKUNNAM. 5. SHAJI, S/O. KURIAN, PATHAYATHIL HOUSE, SRIKANDAMANGALAM KARA, ATHIRAMPUZHA VILLAGE. BY ADV. SRI.T.A.SHAJI RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------ STATE OF KERALA (S.I OF POLICE, GANDHI NAGAR) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.740 of 2000 ----------------------------------------- Dated this the 24th August, 2009 O R D E R Petitioners are accused 1 to 5. They were charge sheeted for offences under Sections 143, 147, 427, 323 and 149 of the Indian Penal Code. After trial, all of them were convicted and sentenced under the various Sections. In appeal filed by them, the conviction and sentence were confirmed and hence this revision. 2. According to prosecution, on 29.12.1988 at about 10.30 a.m, PW1, his sister PW6 and her children, PW2 and PW3 came in a jeep and stopped the jeep in front of PW1's house in the M.C. Road. The first accused deflated the tire of the jeep and when PW1 went to question him, he was fisted by first accused on his chest. The other accused pelted stones on the jeep and destroyed its glass and caused a loss of Rs.2,500/-. Thereafter, they left the place and on the way, first accused beat PW5, the son of PW1 on his cheek and caused hurt to him. The incident happened on the southern side of the same road which was away from the place of first incident. Crl.RP.740/00 2 3. To prove the prosecution case, PW1 to PW14 were examined. Exhibits P1 to P7 and M1 to MO3 were marked on the side of the prosecution. On an analysis of the evidence, particularly that of the eye witnesses to the occurrence PW1 to PW3, PW5, PW6 and PW12, both the courts found that their evidence proves the prosecution case, which is corroborated by medical evidence. It was held that even without corroboration by independent witness, their evidence is acceptable. 4. Learned counsel for the revision petitioners argued that there is difference in the date of occurrence as stated by PW2 and that by the prosecution. While the prosecution case is that the incident happened on 29.12.1988, PW2, an eye witness to the occurrence, stated that it was on 28.12.1988 (learned Public Prosecutor submitted that it could be only a mistake committed by PW2, who was aged only 16 years at the time of occurrence). Another contention raised is that the incident happened in front of the factory, as per the evidence of PW1, but the prosecution case is that it occurred in front of the house Crl.RP.740/00 3 of PW1 5. Learned Public Prosecutor pointed out that as per the evidence, the incident happened in front of the house and also the factory and therefore, it has to be infered that both are close by and the contradiction, if any, cannot be stated to be material and hence, the discrepancy pointed out cannot affect the prosecution case. It was also argued by the defence counsel that independent witnesses examined in this case as PW4, PW7 and PW13 turned hostile to the prosecution and in the absence of independent corroboration, the evidence of PW1 to PW3, PW5, PW6 and PW12, who are very close relatives, being PW1's wife (PW12), her sister (PW6), PW6's children (PW2 and PW3), PW1's son (PW5), who is also the alleged injured, cannot be accepted. 6. Learned Public Prosecutor submitted that there is no rule that in the absence of independent corroboration, the evidence of the eye witnesses, who are close relatives, has to be rejected. The evidence of PW1 to PW3, PW5, PW6 and PW12 corroborated each other in all material particulars and their Crl.RP.740/00 4 evidence is supported by medical evidence also and hence, independent corroboration may not be necessary in this case to come to a conclusion as rightly held by both the courts below. 7. In the light of the allegations and counter allegations, I have gone through the records and the judgments in detail. What is striking most, in this case, according to me, is the identification of the accused. It appears from the evidence of PW1 and other witnesses, who supported the prosecution that as there were 10 to 50 persons at the place of occurrence, they generally stated that all of them committed the various offences. But, none of the accused, who are five in number, were identified by the witnesses in court. 8. Some of the eye witnesses referred to a name, “Noushad”. They also referred to him as “first accused”. But, among the five persons, who is this “Noushad” is not brought out in evidence. In a case where several persons are involved, particularly 10 to 50 persons and various persons committed various overt acts, it is essential that the witnesses point to the person who has actually committed the particular overt act and Crl.RP.740/00 5 Identify him from the court. But the evidence recorded in this case will not show that any of the witnesses pointed out any particular person and mentioned that the particular overt act is committed by such and such person. 9. A general statement made that the accused committed the offences may not be sufficient to convict all the acused. It is also relevant to note that there are variations in the evidence of the alleged eye witnesses in respect of the overt acts. While the prime witness, PW1 would say that the glass of the jeep was broken by the accused (without identifying the persons who have actually committed the offence) PW2 and PW3 would say that accused had pelted stones and the glass was broke thereby. PW6 did not specifically say whether the glass was damaged by pelting or breaking the glass. She generally stated that the accused destroyed the glass. But in what manner it was done is not stated. 10. Regarding the overt act alleged against PW1 also, there is contradictions and variations. From the evidence of Crl.RP.740/00 6 PW6, it would appear that all the accused together had fisted PW1. PW12 stated that she did not actually see the beating by accused on PW1. PW1 would claim that he was fisted by one “Noushad”. There are various other discrepancies also in the overt act committed by the accused. But those were not considered by the trial court or the appellate court. The courts below generally stated that those witnesses are believable, since their evidence is corroborated by medical evidence. 11. The finding that the evidence of the injured PW1, PW5 and the other eye witnesses is corroborated by medical evidence also may not be absolutely correct. The evidence of PW8, the doctor, would show that as per the allegations made by PW5 to him, he was beaten by “iron rod and reapers”. He had also noted linear contusion abrasion 10 c.m long transverse on the right flank, contusion 3x2 c.m on the sacral region and also gave evidence that it can be caused as alleged. 12. But the prosecution has no case that PW5 was beaten with iron rod and reapers. PW5 while examined in court stated Crl.RP.740/00 7 that he was beaten and kicked by the accused but this was brought out as an omission in the case diary. PW1 gave evidence that PW5 was beaten by iron rod and reaper, but he clarified that he had not seen the incident in which PW5 was injured. In the light of the above evidence, it cannot be said that the medical evidence corroborated the evidence of PW1 and PW5, who are the injured. 13. The evidence of none of the other eye witnesses, PW2, PW3, PW6 and PW12 corroborate each other and their evidence is not consistent with the medical evidence. The finding to the contrary cannot be accepted since those are against the evidence adduced in this case and hence, perverse. In addition to this, in the absence of witnesses identifying the accused from the witness box and stating the overt act committed by each accused on identifying them, evidence is lacking as to which accused committed the particular overt act. The conviction and sentence, therefore, cannot be sustained. Both both the courts overlooked various serious aspects which cut the root of the prosecution case. Regarding the points Crl.RP.740/00 8 raised by the learned defence counsel, I find that the arguments raised by learned Public Prosecutor would meet those points. In the light of the discussion held, I find that the findings of facts are perverse and those are liable to be set aside. In the result, the following order is passed: (i) The conviction and sentence passed against the appellants are set aside. (ii) Accused are found not guilty and they are acquitted of the offences under Sections 143, 147, 427, 323 and 149 of the Indian Penal Code. (iii) The accused are set at liberty forthwith. The Criminal Revision Petition is allowed. K.HEMA, JUDGE vgs. Crl.RP.740/00 9 K.HEMA, J. ------------------------------ Crl.R.P.NO.740 of 2000 ------------------------------ O R D E R 24.8.2009 Crl.RP.740/00 10 K.HEMA, J. ------------------------------ Crl.R.P.NO.740 of 2000 ------------------------------ O R D E R 24.8.2009