IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 1996 of 2009() ------------------------------ CRA.569/2007 of ADDL. SESSIONS COURTFAST TRACK NO.II, (ADHOC), THRISSUR SC.626/2005 of II ADDL. ASSISTANT SESSIONS COURT, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/IST ACCUSED ------------------------------------------ SIJU, AGED 33, S/O.KALLIKADAN JOSE, MADAMATHOPPU DESOM, KANIMANGALAM DESOM, KANIMANGALAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): COMPLAINANT AND STATE OF KERALA ---------------------------------------------- THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, NEDUPUZHA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1996 of 2009 -------------------------------------- Dated this the 22nd day of July, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No.II(Adhoc), Thrissur in Crl.Appeal No.569 of 2007 confirming conviction and sentence of petitioner for offences punishable under Sections 341 and 326 read with Section 34 of the Indian Penal Code(for short, “the Code”). Petitioner along with accused No.2 faced trial for offences punishable under Sections 341, 326 and 308 read with Section 34 of the Code on the charge that on 13.3.2005 at about 2.30 p.m. in furtherance of their common intention petitioner wrongfully restrained PW1 while accused No.2 assaulted him with a chopper in an attempt to cause his death resulting hurt/grievous hurt to him. Learned Additional Assistant Sessions Judge before whom case was tried found petitioner and accused No.2 guilty under Sections 341 and 326 read with Section 34 of the Code. Petitioner was sentenced to undergo imprisonment for various periods. Appellate court did not interfere with the conviction or sentence. Learned counsel contended that involvement of petitioner in the case on hand is not proved beyond reasonable doubt and at any rate, it is not shown that petitioner shared common intention with accused No.2 in causing grievous hurt to PW1. 2. That PW1 suffered grievous hurt is proved by the evidence of Crl.R.P.No.1996/2009 2 PW2, medical officer who examined him and Ext.P2, the wound certificate. It is seen that PW1 suffered several fractures. PW2 opined that MO1, chopper can cause the injuries. 3. PWs 1, 4 and 5 are the witnesses to the incident. According to PW1, while he was going to the house one Raphi to hire an autorickshaw found petitioner and accused No.2 going along the way leading to the house of accused No.2. He talked to Raphi for some time and returned. While so, he found petitioner and accused No.2 on the way leading to the house of accused No.2 wherefrom petitioner rushed to him and caught hold of him. In the meantime accused No.2 reached there and assaulted him on the neck with MO1, chopper. He evaded the blow. He then ran from the scene of occurrence. Then accused No.2 again assaulted him with chopper. PW4, wife of PW1 claimed that she was washing utensils in the premises of her house when she saw the incident. She also referred to the incident as above. PW5 claimed that he heard a commotion from the scene of occurrence and found petitioner catching hold of PW1 and then accused No.2 assaulted PW1 with chopper. After the incident, accused No.2 was seen going along with the way leading to his house followed by petitioner. PW3, Village Officer prepared Ext.P3, sketch of place of occurrence. Ext.P.4 is the mahazar for scene of Crl.R.P.No.1996/2009 3 occurrence. According to the prosecution PW9, Sub Inspector arrested petitioner and accused No.2 and on the information given by accused No.2 seized MO1 as per Ext.P5, mahazar. 4. That , PW1 suffered grievous hurt at the relevant time, day and place is proved by the prosecution. There is also evidence to show that accused No.2 assaulted PW1 with the blunt side of MO1 and inflicted grievous hurt. Petitioner has a case that as he met with an accident some time before the incident he could not even walk properly, not to say about running or restraining PW1. On this contention what is available is only the evidence of PW1 that some time back, petitioner had met with an accident and was then in a critical condition. That did not mean that petitioner was unable to restrain PW1. There is the evidence of PWs 1, 4 and 5 that petitioner restrained PW1. Courts below have accepted that evidence. There is no reason to hold otherwise. Question for decision is whether petitioner shared common intention with accused No.2 to cause grievous hurt to PW1. 5. So far as common intention is concerned, it can only be gathered from the attending circumstances. In this case going by Ext.P1, first information statement given by PW1 it is seen that even after accused No.2 assaulted him with MO1, petitioner had not released PW1 from his hold instead PW1 had to Crl.R.P.No.1996/2009 4 wriggle out from the hands of petitioner. It is true that PW1 did not say so in so many words in his evidence. But it is clear from the evidence of PW1 that even after the first assault petitioner had not released PW1 from wrongful restraint. PW1 escaped from the restraint, ran away and he was again assaulted by accused No.2. That, even after the first assault by accused No.2 (which PW1 evaded) petitioner had not released PW1 is an indication that he shared common intention with accused No.2 to cause grievous hurt. Immediately before the incident and even thereafter petitioner was found moving with accused No.2. Going by the evidence of PWs 1, 4 and 5 even after the incident in which accused No.2 inflicted grievous hurt to PW1 with MO1, petitioner was seen going along with accused No.2 to the house of the latter. There is no case or evidence that MO1, chopper was left at the scene of occurrence by accused No.2. On the other hand going by the evidence of PW9 and Ext.P5 that chopper was later recovered on the information given by accused No.2. In other words while going away from the scene of occurrence after the incident accused No.2 was carrying the chopper with which he assaulted PW1. Then also petitioner was seen going along with accused No.2 to the house of the latter. These circumstances are sufficient to indicate that petitioner shared common intention with accused No.2 in causing grievous hurt Crl.R.P.No.1996/2009 5 to PW1. Therefore I do not find reason to interfere with the concurrent finding entered by the courts below that apart from wrongfully restraining PW1 petitioner shared common intention with accused No.2 in the matter of causing grievous hurt as well. Hence, conviction of petitioner did not require interference. 6. So far as sentence is concerned, having regard to the nature of injuries suffered by PW1 as seen from Ext.P2 which involved several fractures I do not find reason to interfere with the sentence. Resultantly, this revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks