IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.Rev.Pet.No. 1769 of 2002() ------------------------------ CRA.132/1998 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA SC.58/1997 of ASSISTANT SESSIONS COURT, THODUPUZHA .................... PETITIONER/APPELLANT /1ST ACCUSED: --------------------------------------------- JOSE, S/O.JOSEPH, ELIPULIKATTU HOUSE, KOCHUTHOVALA KARA, KATTAPPANA. BY ADV. SRI.K.A.ABDUL SALAM SRI.PAULY MATHEW MURICKEN SRI.KASHA K.MALAYAN RESPONDENT(S): RESPONDENT/COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON 10/3/2010 PASSED THE FOLLOWING: ORDER ON CRL.M.P. NO.9456 OF 2002 IN CRL.R.P. NO.1769 OF 2002 DISMISSED. 10/3/2010 (SD/- P.Q.BARKATH ALI, JUDGE) /TRUE COPY/ P.A TO JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1769 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of March, 2010 ORDER The revision petitioner is the first accused in S.C.No.58/1997 of Assistant Sessions Court, Kattappana and appellant in Crl.Appeal No.32/1998 of Additional Sessions Court (Adhoc I), Thodupuzha. He was convicted under Section 324 and 307 of IPC and was sentenced to undergo rigorous imprisonment for three years under Section 307 of IPC and simple imprisonment for one year and a fine of Rs. 5,000/-, in default to undergo simple imprisonment for six months under Section 324 of IPC. The substantive sentences were ordered to run concurrently. He was also directed to pay a compensation of Rs. 5,000/- each to PW16 and PW17, the injured under Section 357(3) Cr.P.C. On appeal by the first accused, his conviction and substantive sentence were confirmed. Instead of imposing fine, the lower appellate court ordered to pay compensation only. The first accused has now come up in revision challenging his conviction and sentence. Crl.R.P.No.1769/02 Page numbers 2. The case of the prosecution as shaped in evidence before the trial court is that on February 6, 1995 at about 9.15 p.m., first accused along with accused 2 to 6 formed themselves into an unlawful assembly with the intention to kill PW16 and PW17 and that in prosecution of that common object first accused caught hold of PW17 and stabbed him with knife MO3 on the right side of his stomach and that when PW16 intervened, first accused stabbed him on his naval part and second accused stabbed PW16 on his stomach inflicting the injuries described in the wound certificates Exts.P14 and P13 respectively and that therefore they committed the offences punishable under Sections 143, 147, 148, 324 and 307 read with Section 149 of IPC. 3. Out of the six accused persons, second accused was absconding. When accused 1 and 3 to 6 appeared before the Commital Court, copies of documents relied on by the prosecution were furnished to them. As the offence under Section 307 of IPC was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Thodupuzha from where it was made over to the trial Crl.R.P.No.1769/02 Page numbers court for trial and disposal. When accused 1 and 3 to 6 appeared before the trial court, they pleaded not guilty to the charge under Sections 143, 147, 148, 324 and 307 r/w Section 149 of IPC. PWs 1 to 28 were examined and Exts.P1 to P17 and MOs 1 to 3 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C., the accused persons denied the incident. On the side of the accused persons, Ext.D1 was marked. 4. On an appreciation of evidence, the trial court found the first accused guilty of the offences punishable under Sections 324 and 307 of IPC, convicted him thereunder and sentenced him as aforesaid. The trial court found accused 3 to 6 not guilty of the offences alleged against them and acquitted them of all the charges levelled against them. The trial court also acquitted the revision petitioner/first accused of the charges under Sections 143, 147, 148 and 149 of IPC. On appeal by the revision petitioner, the lower appellate court confirmed his conviction and substantive sentence. Instead of imposing fine, first accused was directed to pay compensation of Rs. 5,000/- to each of the injured, PW 16 and PW17 as ordered by the trial court. The first Crl.R.P.No.1769/02 Page numbers accused/revision petitioner has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Sections 324 and 307 of IPC rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. PWs 1 to 28 and Exts.P1 to P17 and MOs 1 to 3 were marked on the side of the prosecution to prove the guilt of the revision petitioner/accused. PW1 is a witness to the recovery mahazar of MO3 knife allegedly used by the revision petitioner to stab PW 16 and PW17. PW2 is the person who allegedly gave MO3 knife to the first accused. PW3 is the Secretary of Ezhukumvayal Service Co-operative Bank. PW4 is a witness to the scene mahazar. PWs 1 to 4 turned hostile and did not support the prosecution. PW5 is an attestor to Crl.R.P.No.1769/02 Page numbers Ext.P3 mahazar with respect to the seizure of the register of inmates of Kavitha Lodge which is marked as Ext.P4. PW6 is given up by the prosecution. PW7 is a witness to the seizure mahazar of shirts of PW16 and PW17, MOs 1 and 2. PW8 is also an attestor to Ext.P7 series, the seizure mahazar of MOs 1 and 2. PW9 is the then Village Officer of Kattappana Village who prepared the plan of the scene of incident, Ext.P8. PW10 is an attestor to Ext.P7 mahazar. PW11 is an attestor to Ext.P9 mahazar which is recovery of Ext.P10 complaint given by PW17 against the first accused before the Kattappana Police station. PW12 is given up by the prosecution. PW13 is a witness to the alleged recovery of MO3 knife from the house of PW1. He turned hostile and did not support the prosecution. 7. PW.14 is the then Sub Inspector of Police of Vandanmedu Police Station who arrested the 3rd accused in the original case on July 15, 1995. PW.15 is the Head Constable of Kattappana Police Station who went to the hospital on receipt of intimation and recorded the statement of PW.16 and registered the FIR Ext.P12. Pws.16 and 17 are the injured persons and Pws.18 and 19 are the alleged Crl.R.P.No.1769/02 Page numbers eye-witnesses. 8. PW.20 is the doctor who treated Pws.16 and 17 and issued the wound certificates Exts.P13 and P14. PW.21 is the person who took the injured persons to the hospital. PW.22 is an alleged eye witness to the incident who has turned hostile and did not support the prosecution. PW.23 would say that he knows the 1st accused and that he he was conducting the business of hill produce near Seena Hotel, Kattappana. PW.24 is the president of High Range Motor Workers' Union who proved Ext.P10 complaint filed by his union against the 1st accused. PW.25 is the Manager of Seena Hotel, Kattappana, who proved Ext.P6 bill. He turned hostile and did not support the prosecution. PW.26 is the Manager of Kavitha Tourist Home, Kattappana, who proved Ext.P4 register which shows that the 1st accused resided in that lodge from 6.2.1995 4 p.m. to 7.2.1995 4 p.m. PW.27 is given up by the prosecution. PW.28 is the Investigating Officer who prepared the scene mahazar Ext.P3 and took into custody M.Os.1 and 2 and M.O.3 knife on the basis of the disclosure statement made by the 1st accused. Crl.R.P.No.1769/02 Page numbers 9. Now, as such, there is only the evidence of Pws.16 to 19 to prove the incident. Pws.16 and 17 are the injured persons and Pws.18 and 19 are the alleged eye-witnesses. PW.16 testified before the lower court that while he, along with PW.17, was riding a motor cycle and reached near the scene of incident i.e. near the Seena Hotel, Kattappana, the 1st accused caught hold of PW.17 and stabbed him with the knife MO.3 on the right side of his stomach and that when PW.16 intervened, the 1st accused stabbed on his navel part and the 2nd accused stabbed PW.16 on his stomach inflicting injuries described in Exts.P13 and P14 respectively. PW.17 supported PW.16 on all material particulars. He has also convincingly sworn before the trial court that it was the 1st accused who stabbed him. Their evidence is fully corroborated by Pws.18 and 19, the independent eye witnesses. 10. I have gone through their evidence. No serious discrepancies or inconsistencies were brought out in their cross-examination to discredit their evidence. The trial court as well as the lower appellate court has elaborately discussed their evidence and chosen to believe their version. I find no reason to come to a different conclusion. Crl.R.P.No.1769/02 Page numbers That apart, Pws.16 and 17 sustained corresponding injuries as seen from Exts.P14 and P13 wound certificates respectively, which were proved by PW.20, the doctor who treated them. 11. The evidence of Pws.16 to 19 is mainly criticised on the ground that the incident occurred at 9.15 p.m., that there was no light therein and that therefore they would not have identified the accused persons. There is no substance in the above contention. Pws.16 to 19 testified that they have previous acquaintance with accused Nos.1 and 2. That apart, they have also stated that there was light from the nearby shops and hotel. Ext.P8, the plan of the scene of incident, also shows that there was street light about 15 - 20 feet away from the scene of incident and that there are shops nearby. Therefore the trial court as well as the lower appellate court are perfectly justified in rejecting the above contention of the revision petitioner and holding that there was sufficient light at the scene of incident for Pws.16 to 19 to identify the 1st accused at the time of the incident. 12. Learned counsel for the revision petitioner sought to discredit the evidence of Pws.16 to 19 by pointing out some Crl.R.P.No.1769/02 Page numbers discrepancies in their evidence. PW.16 would say that he identified the accused in the light of the nearby shop and in the moon light. PW.17 would say that he identified the accused in the light from the nearby Seena Hotel. PW.17 admitted in cross-examination that he is an accused in several criminal cases. Pws.18 and 19 would say that another person stabbed PW.16. In my view merely because PW.17 is an accused in other criminal cases, his version cannot be disbelieved. His evidence is supported by Pws.16, 18 and 19. That apart, the discrepancies pointed out above were of very minor in nature and does not affect the core of the case of the prosecution. The Apex Court has held in Shivappa v. State of Kerala ( AIR 2008 Supreme Court 1860) that minor contradictions or inconsistencies in the evidence of witnesses are inconsequential and the witnesses should not be disbelieved on that ground. Therefore, in my view, the trial court as well as the lower appellate court are perfectly justified in believing their evidence. 13. The learned counsel for the revision petitioner next argued that there is unexplained delay in registering the FIR which casts Crl.R.P.No.1769/02 Page numbers serious doubts regarding the truth of the version of the incident by Pws.16 to 19. There is no substance in the above contention. PW.15, the Head Constable of Kattappana Police Station, testified that he received the intimation from the hospital at 10.45 a.m. on 7.2.1995 and Ext.P12 was registered at 2 p.m. on 7.2.1995. Thus it can be seen that there is no delay in registering the FIR. Further, even if there is any slight delay in registering the FIR, it cannot be taken as a ground for disbelieving the case of the prosecution. The Apex Court has held in Gouri Sankar v. State of Karnataka (AIR 2008 SC 2349) that delay in lodging the FIR although by itself is not a ground for disbelieving the entire prosecution case, but each case has to be judged by its own facts. In the present case both the courts below have chosen to believe the evidence of Pws.16 to 19 regarding the incident. On going through the evidence I find no reason to disbelieve their evidence. Therefore even if there was some delay in registering the FIR, in my view, it is not a ground for disbelieving the evidence of Pws.16 to 19 which is otherwise found reliable. 15. Regarding the recovery of weapon used by the accused, Crl.R.P.No.1769/02 Page numbers MO3 on the basis of the disclosure statement made by the revision petitioner/first accused, counsel for the revision petitioner argued that there is only the evidence of PW28, the investigating officer to prove the same and as other witnesses to the alleged recovery turned hostile, the uncorroborated version of PW28 should not be believed. I am unable to agree. PW28 testified in a convincing manner before the trial court about the alleged recovery of MO3. Ext.P11(a) is the incriminating statement given by the first accused which is extracted in Ext.P11 mahazar . His evidence on this aspect was not shaken in cross examination. Both the courts below have chosen to believe the evidence of PW28. I find no reason to come to a different conclusion. Thus prosecution has proved beyond doubt the recovery of MO3 knife on the basis of the disclosure statement given by the accused. 16. The next question for consideration is whether the revision petitioner/first accused and second accused stabbed PW16 and PW17 with an intention to cause their death so as to attract the offence punishable under Section 307 of IPC. The nature of the injuries sustained by PW16 and PW17 as evidenced by Exts.P14 and P13 Crl.R.P.No.1769/02 Page numbers wound certificates and the evidence of PW20, the doctor, shows that the injuries sustained by PW16 and PW17 are very serious. The nature of the weapon used and the force with which the knife was employed so as to even penetrate the peritoneal cavity clearly shows that the intention of first accused and second accused was to kill PW16 and PW17. Therefore both the courts below are perfectly justified in holding that the appellant stabbed PW 16 and PW17 believing that the injuries would cause their death in the ordinary course which is an offence punishable under Section 307 of IPC. 17. As regards the case of the accused that there was clash between two groups of people in which PW16 and PW17 might have sustained injuries is not proved by the accused by adducing necessary evidence. 18. For all these reasons, accepting the evidence on the side of prosecution, I hold that the trial court as well as the lower appellate court is perfectly justified in coming to the conclusion that accused stabbed PW 16 and PW17 with MO3 weapon with intention to cause their death inflicting them the injuries described in Exts.P14 and P13, Crl.R.P.No.1769/02 Page numbers the wound certificates and thereby committed the offence punishable under Section 307 of IPC. I therefore confirm the conviction of revision petitioner/first accused under Sections 324 and 307 of IPC. Point No.2 19. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three years under Section 307 of IPC and simple imprisonment for one year and a fine of 5000/- under Section 324 of IPC. The lower appellate court confirmed the sentence of the trial court under Section 307 of IPC. The lower appellate court also confirmed the substantive sentence imposed by the trial court under Section 324 of IPC. But instead of fine, the lower appellate court directed to pay compensation of Rs. 5000/- . The accident occurred in 1995 i.e. about 15 years ago. Further PW17 in this case is accused in several other criminal cases. Taking into consideration all these aspects, I feel that the substantive sentence imposed by the trial court which is confirmed by the lower appellate court can be reduced to rigorous imprisonment for one year under each count. As PW16 and PW17 sustained serious injuries, I feel that the appellant should be Crl.R.P.No.1769/02 Page numbers directed to pay a compensation of Rs. 10,000/- to each of them as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months each. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 307 and 324 of IPC is confirmed. The sentence imposed by both the courts below is modified to the effect that he is sentenced to undergo rigorous imprisonment for one year under Section 307 of IPC and simple imprisonment for one year under Section 324 of IPC. He is also directed to pay compensation of Rs. 10,000/- each to PW16 and PW17 as provided under Section 357(3) Cr.P.C., in default to undergo simple imprisonment for two months each. The substantive sentence shall run concurrently. The appellant shall appear before the trial court on or before 15-04-2010 to receive the sentence. He shall pay the compensation on or before 15/04/2010. His bail bonds are cancelled. Set off allowed as ordered by the Trial Court. P.Q.BARKATH ALI JUDGE sv.