IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 Crl.Rev.Pet.No. 2451 of 2007() ------------------------------ CRA.78/2004 OF SESSIONS COURT, KOLLAM CC.468/2000 OF JUDL. FIRST CLASS MAGISTRATE COURT-I,PUNALUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- ANIL KUMAR, S/O.NEELAMBARAN, SARADANILAYAM VEEDU, KOMALAM, VADAMON MURI, ANCHAL VILLAGE, KOLLAM DISTRICT. BY ADV.SRI.SIJU KAMALASANAN SRI.MUHAMMED RAFI RESPONDENT/RESPONDENT/COMPLAINANT AND STATE: ---------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2451 OF 2007 =========================== Dated this the 18th day of September,2008 ORDER Petitioner was concurrently convicted for the offence under section 448 and 332 of IPC and sentenced to rigorous imprisonment for one month and three months respectively. Prosecution case was that CPI(M) had declared 11.5.2000 as a bundh day and PW1 the Village Officer of Anchal Village Office was at his office from 10-15 a.m on that day. It was the case that 25 sympathisers of the political party rushed to the Village office and questioned PW1 why he had attended the office inspite of the fact that it was declared a day of Bundh. Petitioner entered the office where PW1 was sitting and slapped on his face and ransacked the files and went away. PW1 went to the Government Hospital Primary Health Centre, Anchal from where PW4, the Asst.Surgeon examined him and prepared Ext.P5 wound certificate. Ext.P1 First CRRP 2451/2007 2 Information Statement was recorded at 11-30 a.m and Ext.P2 First Information Report was prepared and Crime 152/2000 was registered. PW3 the Investigating Officer prepared Ext.P3 scene mahazar. Petitioner was arrested on the same day at 8.35 p.m. After completing the investigation charge was laid before the learned Magistrate for the offence under section 448 and 332 of IPC. Petitioner pleaded not guilty. On the evidence of Pws. 1 to 4 and Exts.P1 to P5 learned Magistrate found petitioner guilty of the offence and sentenced him to undergo rigorous imprisonment for one month for the offences under section 448 and rigorous imprisonment for three months for the offence under section 332 IPC. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl.Appeal 78/2004. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. CRRP 2451/2007 3 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner vehemently argued that courts below did not properly appreciate the evidence and fact that Ext.P1 First Information Statement was prepared on the morning of 11.5.2000 at 11.30 a.m was omitted to be taken note of. It was pointed out that as per the evidence first information was given only after PW1 was admitted in the hospital and the evidence of PW3 and Ext.P5 wound certificate establish that he was admitted only at night and if so First Information Statement could have been recorded only thereafter and it is clear that because of political reasons a false case was foisted. Learned counsel also argued that according to PW1 he had no previous acquaintance with the petitioner and there is no evidence to prove the identity of the person who slapped on his face. It was argued that as per the evidence of PW1, three persons who had come to CRRP 2451/2007 4 the office was there at the time of occurrence and learned Sessions Judge was not justified in saying that no other person was present at the time and therefore non-examination of the other witnesses is not a material fact. It was argued that even PW1 did not identify the petitioner as the person who slapped on his face on that morning and therefore the conviction is not sustainable. 4. Learned Public Prosecutor submitted that courts below properly appreciated the evidence and there is no reason to interfere with the conviction and sentence. 5. The evidence of PW4 the doctor with Ext.P5 wound certificate establish that PW4 examined PW1 at 11 p.m on 11.5.2000 and prepared Ext.P5 wound certificate. As per Ext.P5 when the doctor examined PW1 at 11 p.m, he had noted pain and tenderness over the left cheek of PW1. The alleged cause of injury disclosed to PW4 as recorded in Ext.P2 is by beating on his left cheek with hands. The name of the assailant is not CRRP 2451/2007 5 mentioned to the doctor and not recorded in Ext.P5. If the First Information Statement was recorded after the admission of PW1 in the hospital, it could only be after 11 p.m on the night of 11.5.2000. But Ext.P1 First Information Statement shows that First Information Statement was recorded at 11.30 a.m on 11.5.2000 and what is alleged in Ext.P1 First Information Statement is that under the leadership of petitioner about twenty five sympathisers of political party came to the Village Office and while the remaining persons stood on the verandah, petitioner the leader of the gang entered the office and beat PW1 on his left cheek. Ext.P1 First Information Statement shows that PW1 had named the petitioner at 11.30 a.m in the morning itself. If that be the case and Ext.P5 wound certificate was prepared on the night, the name of the assailant would have been shown in Ext.P5. There is no case for the prosecution that 11 p.m mentioned in Ext.P5 was a mistake. Such a case was not even put to PW4. If that be the case CRRP 2451/2007 6 there is sufficient reason to doubt the genuineness of the fact mentioned in Ext.P1 First Information Statement. 6. PW1 has no case that he had any previous personal acquaintance with petitioner. True, being a Village Officer and if he was beaten by the petitioner, eventhough there was no previous acquaintance with the petitioner, PW1 would be able to identify petitioner. But even from the witness box PW1 did not identify the petitioner as the person who slapped on his cheek. On the other hand, he only stated that accused slapped him. What was deposed by PW1 was that though he had no personal acquaintance with petitioner and did not know his name, his name was disclosed by some person at that time. He also stated he did not enquire about the names of the other persons. If petitioner is the leader of that gang, who came to the Village Office as PW1 violated the direction to observe Bundh on that day and PW1 inflicted hurt on PW1, it cannot be believed that name of the CRRP 2451/2007 7 leader would be given by any member of the gang. What was stated by PW1 was that he got the name as told by others, who were there. PW1 also deposed that two or three persons were there at the Village Office at that time. He did not say that one among those persons disclosed the name. PW3 the Investigating Officer has no case that petitioner was identified by PW1. PW1 has also no case that he identified the petitioner as shown by the police. In such circumstance, there is sufficient ground to doubt the identity of the culprit, if in fact PW1 was slapped by some person on that day. 7. Learned Sessions Judge rejected the argument of the appellant regarding the non- examination of the independent witness stating in paragraph 15 that there is absolutely no evidence to show that any other person was present in the office. As rightly pointed out by learned counsel appearing for petitioner, it is against the very evidence of PW1. PW1 deposed that there were two CRRP 2451/2007 8 or three persons at the office who had come there for official purpose at the time of the incident. If that be the case, one among them could have identified the assailant. But none was even questioned by the Police much less examined. On the evidence, it cannot be said that prosecution has established that petitioner was either the leader of that gang or had slapped PW1 by entering his office. Unfortunately these material aspects were not properly appreciated by the courts below. Though PW1 named petitioner at the time of evidence from the fact that he had named the petitioner even before he was admitted in the hospital at 11.30 a.m on the day and evidence of PW1 shows that he had no acquaintance with the petitioner, it is not possible to believe the evidence to convict the petitioner. There is no other evidence to connect petitioner with the offence. In such circumstance, conviction and sentence passed by the courts below is unsustainable. CRRP 2451/2007 9 Revision Petition is allowed. Conviction and sentence are set aside. Petitioner is found not guilty of the offence and is acquitted of the offence charged. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006