IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Crl.Rev.Pet.No. 3017 of 2003(C) ------------------------------- CRA.113/1997 of ADDL. SESSIONS COURT (ADHOC-I), TRIVANDRUM CC.414/1993 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... REVN. PETITIONER(S)/APPELLANTS/ACCUSED: --------------------- 1. SHAFI, S/O.KOYAKUNJU, ROSE COTTAGE, NEAR KANIYAPURAM THEKKATH, KADINAMKULAM MURI. 2. RAFI, S/O.SHAFI, ROSE COTTAGE, NEAR KANIYAPURAM THEKKATH, KADINAMKULAM MURI. 3. ANIL, S/O.BHASKARA PILLAI, KOCHU MANAKKATTU VEEDU, PADINJATTU MUKKU, KADINAMKULAM MURI, -DO- VILLAGE. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE REP. 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 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.3017 OF 2003 --------------------------------------------- Dated 17th August, 2010 O R D E R Petitioners are accused 1 to 3 in C.C.414/1993 on the file of Judicial First Class Magistrate-II, Attingal. They along with accused 4 and 5 were tried for the offence under Sections 143, 147, 148, 447, 326, 324 and 323 read with Section 149 of Indian Penal Code. Prosecution case was that on 29/8/1992 at about 7.40 p.m while PW1 was talking with his brother PW2 on the courtyard of the house of PW2 at Manakkattuvilakam in Thekkevila Muri of Pallippuram Village, petitioners along with three others trespassed into the compound asking whether they will flow water to their paddy field, attacked Pws.1 and 2 and CRRP 3017/03 2 caused grievous hurt in furtherance of their common object to trespass and to cause grievous hurt to Pws.1 and 2 and thereby committed the offences. Pws.1 and 2, the injured were taken to the hospital immediately. PW5 the doctor examined PW1 at 8.20 p.m on the same day and prepared Ext.P2 wound certificate. Dr.B.Suresh Chandran examined PW2 at 7.45 p.m on the same day and prepared Ext.P3 wound certificate. On getting information that Pws.1 and 2 were admitted in the Medical College Hospital, PW8 Headconstable reached the Hospital and prepared Ext.P1 FI statement of PW1 on 30/8/1992 at 11.30 a.m and registered crime No.233/1992 under Ext.P4 FIR at 1.30 p.m. After completing the investigation PW9 Investigating Officer laid the charge which was taken cognizance by the learned Magistrate. All the accused pleaded not guilty. Prosecution examined nine CRRP 3017/03 3 witnesses and marked seven exhibits. When accused were called upon to enter on their defence and to adduce evidence, they examined Dws.1 and 3 (though DW2 is shown as a witness, he was not examined and was given up). Ext.D1, portion of the statement of PW4 recorded under Section 161 of Code of Criminal Procedure, which was earlier marked through PW9. Learned Magistrate on the evidence found accused No.4 not guilty of the offences and acquitted him. Learned Magistrate re-filed the case against the absconding fifth accused. Petitioners were found guilty and convicted and sentenced for the offences under Sections 143, 148, 447, 324 and 326 read with Section 149 of Indian Penal Code. Petitioners challenged the conviction and sentence before Sessions court, Thiruvananthapuram in Crl.A.113/1997. Learned Additional Sessions Judge on re-appreciation of CRRP 3017/03 4 the evidence set aside the conviction for the offence under Sections 143 and 148 read with Section 149 of Indian Penal Code and confirmed the conviction for the offences under Sections 447, 324 and 326 with the aid of Section 34 of Indian Penal Code. Revision is filed challenging the conviction for the offence under Sections 447, 324 and 326 read with Section 34 of Indian Penal Code. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioners argued that courts below did not properly appreciate the evidence and ignored the material contradictions. It was pointed out that the first version on the alleged cause of injury recorded in Exts.P2 and P3 are contradictory and it contradicts the version CRRP 3017/03 5 in Ext.P1 FI statement also. It was argued that when as per Ext.P2 wound certificate the incident occurred at Kaniyapuram, prosecution case is that it occurred one and half kilometers to the south-west of Kaniyapuram at Thekkethilkada and that too at 7.40 p.m as against 7 p.m stated both in Exts.P2 and P3. It was also argued that evidence of Pws.2 and 3 establish that the incident could not have occurred as alleged and possibility of Pws.1 and 2 sustaining injuries from Kaniyapuram due to some other incident cannot be ruled out and this aspect was not properly appreciated. It was also argued that evidence of Dws.1 and 3 was not properly appreciated and was disbelieved for no valid reason. It was argued that evidence of DW1 establishes that it was in his car Pws.1 and 2 were taken to the hospital from Kaniyapuram and evidence of DW2 CRRP 3017/03 6 establishes that the incident occurred at Kaniyapuram and not at the courtyard of the house of PW2 as claimed by the prosecution. It was also argued that evidence of Pws.3 and 4 should not have been relied on as their presence at the scene of occurrence is doubtful. It was pointed out that as per the evidence of PW3 he was in the mosque till 8.30 p.m on that night and therefore, he could not have witnessed the incident whether the incident occurred at 7 p.m or 7.45 p.m. It is also argued that existence of bunk shop on the western side of the house of PW2 is not seen in Ext.P5 scene mahazar and the scene mahazar shows that there was a compound wall with a gate on the western side of the house of PW2 and even if, PW4 was standing near the bunk shop on the western side of the road, there is no possibility for PW4 to witness the CRRP 3017/03 7 incident and hence his evidence should not have been believed. Learned counsel also argued that evidence of PW2 does not inspire confidence and due to the material contradictions prosecution case should have been disbelieved and at any rate, petitioner should have been granted the benefit of doubt. 5. Learned Public Prosecutor submitted that Pws.1 and 2, being the injured are most competent witness to give evidence as to how they sustained injury and who inflicted those injuries and there is no reason to disbelieve their evidence. It was also argued that evidence of Pws.3 and 4, the eye witnesses were believed by the trial court and accepted by the appellate Court and there is no reason to interfere with the conviction. 6. PW2 was examined by the concerned doctor at 7.40 p.m from the Medical College CRRP 3017/03 8 Hospital. As is clear from Ext.P3 wound certificate PW2 was brought to the Medical College Hospital by one Abdul Rahiman, who had given information as to how PW1 sustained injury as recorded in Ext.P3. That Abdul Rahiman was not examined. Ext.P2 wound certificate also shows that the very same Abdul Rahiman had brought PW1 also to the hospital. Though doctor who prepared Ext.P3 wound certificate was not examined and PW7, the doctor who is conversant with the handwriting and signature of the doctor who prepared Ext.P3 was examined, source of the information for the doctor as shown in Ext.P3 is Abdul Rahiman and not PW2. PW1 was examined thereafter at 8.20 p.m on the same day by PW5. Evidence of PW5 corroborated by Ext.P2 wound certificate establishes that it was PW1 who furnished the information on the alleged cause of injury. CRRP 3017/03 9 Both in Exts.P2 and P3 the incident was alleged at 7 p.m. When in Ext.P3 place from where PW2 sustained injury was recorded as house of PW2, in Ext.P2 wound certificate it is recorded that PW1 sustained injuries at Kaniyapuram. Evidence of PW9 the Investigating Officer establishes that scene of occurrence at Thekkethilkada and one and half kilometers to the south-west of Kaniyapuram. PW1 when examined has no case that he had disclosed to the doctor that he sustained injury from Kaniyapuram for the reason that the place where the house of PW2 is situated was also within Kaniyapuram. Therefore, place of incident from where PW1 sustained injury as proved by the evidence of PW5, as disclosed to him by PW1 was at Kaniyapuram and not at Thekkethilkada. But when he furnished Ext.P1 FI statement, it was alleged that he and PW2 sustained injuries at CRRP 3017/03 10 the courtyard of the house of PW2. When in Exts.P2 and P3 time of occurrence was recorded as 7 p.m, he changed the time of occurrence in Ext.P1 FI statement. It was shifted from 7 p.m to 7.40 p.m on the same day. Ext.P3 wound certificate shows that PW1 was examined by the doctor at Medical College Hospital at 7.40 p.m. As is clear from Exts.P2 and P3, Pws.1 and 2 were taken to the Medical College Hospital from the scene of occurrence and PW2 was examined by the doctor at 7.40 p.m. If that be so, the incident could not have occurred at 7.40 p.m as stated in Ext.P1 FI statement and asserted by Pws.1 and 2 from the box. If PW2 was examined by the doctor at 7.40 p.m and the incident occurred either at Kaniyapuram, or at Thekkethilkada Junction which is further one and half kilometers to the south-east of Kaniyapuram, and that too at 7.40 p.m, the CRRP 3017/03 11 doctor could not have examined PW2 at 7.40 p.m on the same day. It is therefore, clear that the incident did not occur at 7.40 p.m as alleged by the prosecution and scene of occurrence could not have been at Thekkethilkada Junction but at Kaniyapuram. In any case fact that Pws.1 and 2 sustained injuries from Kaniyapuram cannot be ruled out in view of contrary information furnished to PW5 and recorded in Ext.P2 wound certificate. Evidence of Pws.1 and 2 is to be appreciated in this background. 7. Though motive by itself may not be relevant in a case where there are eye witness to prove the incident as distinct from a case definitely on circumstantial evidence when prosecution case is built up on the edifice of a particular incident, as in the case herein, the improbability of the incident is a material CRRP 3017/03 12 aspect to appreciate the evidence of Pws.1 and 2. As per Ext.P1 FI statement itself, the accused trespassed into the compound of house of PW2, while Pws.1 and 2 were talking at the courtyard of house of PW2, accused asking whether they would flow water into the paddy field of the accused, attacked Pws.1 and 2 and inflicted grievous hurt and hurt. Evidence of Pws.1 and 2 establish that petitioners have no property adjacent to the property of PW1 or PW2. Second petitioner is only the son of the first petitioner and was only a student at that time. Evidence of Pws.2 and 3 establishes that their property was converted into a garden land at least six or seven years prior to the incident. In 1992, it was not even a paddy field. Their evidence also establish that neither PW1 nor PW2 had any property adjacent to the property of the first petitioner. If CRRP 3017/03 13 that be the case, possibility of an incident as claimed by the prosecution due to enmity of the petitioners against Pws.1 and 2 for releasing water from their property to the adjacent paddy field of first petitioner is highly improbable. If that be so, the very genesis of case is to be suspected. 8. Though evidence of PW3, who claimed that he was an eye witness to the incident, was relied on by the courts below, as rightly argued by the learned counsel appearing for the petitioners the evidence of PW3 establishes that he was in the Mosque on that night and participated in the prayer at 7 p.m and also at 8.05 p.m and left the mosque only after 8.30 p.m. From the evidence of PW3 it is absolutely clear that he was not near to the property of PW2 either at 7 p.m or 7.40 p.m as he was in the mosque till 8.30 p.m. If that be CRRP 3017/03 14 so, PW3 had no occasion to witness the incident as claimed by him. Hence the evidence of PW3 can only be disbelieved. 9. So also, though evidence of PW4 was relied on by the courts below, on a proper appreciation of the evidence of PW4 it is clear that he also did not witness the incident. As stated earlier, house of PW2 is facing to the west and there is a courtyard on the western side. Thereafter, there is a compound wall with a gate on two stone pillars. When there is a compound wall on the western side, PW4 claims that he witnessed the incident by standing near the bunk shop situated to the west of the compound. If there is a compound wall and PW4 was standing near to the shop on the side of the road, he could not have witnessed the incident at all. Unfortunately, courts below did not appreciate the evidence of PW4 in the CRRP 3017/03 15 proper perspective. It is clear that PW4 is also not an eye witness. 9. What remains is only the evidence of Pws.1 and 2. Though they are the injured witnesses, it is clear from the evidence, due to the contradictions and shifting of place of incident as well as time, it is unsafe to rely on their evidence. If that be so, petitioners are at least entitled to get the benefit of reasonable doubt. For the reason that Dws.1 and 3, the witnesses examined by the defence were found not trustworthy petitioners cannot be convicted when prosecution did not establish the case against the petitioners beyond reasonable doubt. If that be so, conviction of the petitioners for the offence under Sections 447, 324 and 326 read with Section 34 of Indian Penal Code is not sustainable. Revision is allowed. Conviction of the CRRP 3017/03 16 petitioners for the offences under Sections 323, 326 and 447 read with Section 34 of Indian Penal Code is not sustainable. They are found not guilty and are acquitted. M.SASIDHARAN NAMBIAR, JUDGE. uj. Figure “323” mentioned in the second line at page 16, in the last paragraph of the order dated 17/08/2010 in Crl.R.P 3017/2003 is corrected and substituted as “324” as per order dated 05/10/2010 in Crl.M.A.9004/2010 in Crl.R.P.3017/2003 sd/- Registrar (Judicial)