IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 CRL.A.No. 63 of 2002() ---------------------- SC.259/2000 of V ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S)/ACCUSED: ---------------------- 1. REETHA REGHUNATHAN, AGED 40, W/O.REGHUNATHAN, RESIDING AT C.C.IX/123, VELI KIZHAKKE ODATHU, FORT KOCHI. 2. REGHUNATHAN, S/O. KESAVAN, AGED 42, -DO- -DO-. BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA TO BE REP.BY CIRCLE INSPECTOR OF POLICE,FORT KOCHI POLICE STATION. PUBLIC PROSECUTOR SMT.P.P.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON 24/08/2009 DELIVERED THE FOLLOWING: ORDER ON CRL.M.P.NO.410/2002 IN CRL.A.NO.63/2002 DISMISSED. 24.8.2009 SD/- SATHEESACHANDAN, JUDGE /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.APPEAL.NO.63 OF 2002 (A) ----------------------------------- Dated this the 24th day of August, 2009 J U D G M E N T Appellants are the two accused in S.C.No.259 of 2000 on the file of the Vth Additional Sessions Court, Ernakulam. Both of them, wife and husband, assail the conviction imposed against them for the offences punishable under Sections 323 and 447 of the Indian Penal Code. They were prosecuted for the offences punishable under Sections 447 and 302 read with Section 34 of IPC on a charge laid by the Circle Inspector of Police, Fort Kochi. They had pleaded not guilty. Finding them guilty of the offences under Sections 447 and 323 of IPC, they were convicted of such offences by the learned Sessions Judge directing the 1st appellant wife to undergo rigorous imprisonment for six months for the offence under Section 323 IPC and rigorous imprisonment for one month for the offence under Section 447 IPC. The 2nd appellant, husband was sentenced to undergo rigorous imprisonment for three months CRA.63/02 2 for the offence under Section 323 IPC and rigorous imprisonment for one month for the offence under Section 447 IPC. They were found not guilty for the offence under Section 302 IPC and acquitted of that offence. Aggrieved by the conviction and sentence as aforesaid they had preferred this appeal. 2. Short facts necessary for disposal of the appeal can be summed up thus: On the evening of 12.2.1999, by about 8.30 p.m., an altercation took place between the accused and a neighbour one Cicily, aged 70 years in the courtyard of Cicily. The 1st accused had borrowed a sum of Rs.1,000/- from the above said Cicily and its nonpayment is stated to have given rise to the incident. Prosecution case is that the accused trespassed upon the courtyard of Cicily and the 1st accused pushed Cicily by her neck resulting in her fall on the ground, and, then, she kicked her over her underbelly. The 2nd accused, the husband of the 1st accused, it is alleged, caught hold Cicily and kept her under restraint while the 1st accused pushed by her neck which led to her falling on the CRA.63/02 3 ground. Soon after the assault on the victim the accused left the place. PW1, son of Cicily, and closeby neighbours rushed to the scene and removed Cicily lying on the ground injured. She was then stated to be unconscious. She was admitted in a nearby hospital. While undergoing treatment, her condition became worse, and, hence, she was taken to another hospital for better treatment, but, she breathed her last on 16.2.1999. The next day of occurrence, Ext.P1 (a) F.I.R. was registered over the incident recording the statement of PW1, son of the victim, against both the accused for the offences punishable under Sections 447 and 323 read with Section 34 of IPC. Pursuant to registration of the crime, Ext.P2 scene mahazar was prepared over the scene of occurrence. After the death of Cicily, the investigation of the crime was taken over by PW16, the Sub Inspector of Police. The investigation proceeded incorporating the offence under Section 302 IPC also, and both the accused were arrested and taken into custody. After completion of the investigation, charge was laid against the accused for the offences punishable under Sections 447 and 302 read with Section 34 of IPC. CRA.63/02 4 3. After committal of the case to the Sessions Court, Ernakulam, it was made over to the Vth Additional Sessions Court for trial and disposal. The learned Additional Sessions Judge, after being satisfied of the committal and complying with the formalities, framed charges against the accused for the offences punishable under Sections 447 and 302 read with Section 34 of IPC. Both the accused pleaded not guilty. 4. Prosecution examined PWs.1 to 16, got marked Exts.P1 to P8 and identified MO1 to MO3 to prove his case. 5. The accused when questioned under Section 313 of Cr.P.C., denied the prosecution case. No defence evidence was adduced other than exhibiting portion of statements recorded under Section 161 of Cr.P.C. from two prosecution witnesses, which had been contradicted by them as Exts.D1 and D2. The learned Sessions Judge, after appreciating the materials produced and hearing the counsel on both sides, found the accused guilty of the offences punishable under CRA.63/02 5 Sections 447 and 323 of the IPC and not guilty of the offence punishable under Section 302 of IPC. Acquitting them of the offence under Section 302 of IPC, the accused were convicted for the offences punishable under Sections 447 and 323 of IPC and sentenced imposing the punishment as indicated earlier. 6. I heard the learned counsel for the appellants/accused and also the learned Public Prosecutor. Conviction of the accused is assailed by their counsel contending that it is illegal and unsustainable both under law and facts. There was considerable delay in production of the F.I.R. before the court and that itself cause serious doubt on the truthfulness of the prosecution case set up against the accused, submits the counsel. The eye witness referred to in Ext.P1 statement of the son of the victim, PW1, was not examined in the case, is the further submission of the counsel to contend that the delay in the production of the F.I.R. with no reasonable explanation for such delay and the nonexamination of the eye witness stated in the F.I.R. vitiates the prosecution case as a whole. CRA.63/02 6 There is serious discrepancy regarding the place of occurrence in the evidence of the witnesses and the mahazar prepared over the scene of crime, according to the counsel. Medical evidence tendered in the case, according to the counsel, does not assist the prosecution in showing that A1 had pushed the victim by her neck and kicked on the underbelly of the victim. The learned Sessions Judge too found that the prosecution version of A1 kicking on the underbelly of the victim, while she was on the ground, remained unsubstantiated by any evidence, which, according to the counsel, renders the whole prosecution case unworthy of credence. So much so, in the given facts of the case, conviction entered against the accused on the interested testimony of PW1, the son of the victim and two others, close relatives, is liable to be set aside. The accused, in the given facts of the case, are atleast entitled to the benefit of doubt, is the further submission of the counsel for reversing the conviction imposed against them by the court below. On the other hand, the learned Public Prosecutor submitted that CRA.63/02 7 after meticulous consideration of the evidence let in the case and finding that the evidence of PWs.1 to 3 established in unerring terms that the accused conjointly assaulted the victim, after both of them criminally trespassed upon her courtyard, the learned Sessions Judge found them guilty of the offences punishable under Sections 447 and 323 of the IPC, and accordingly, convicted and sentenced them thereunder. Conviction and sentence imposed against the accused, it is submitted by the learned Public Prosecutor, is fully supported by the proved facts and circumstances as established by the materials tendered in the case. It is further submitted that no interference with the conviction of the accused arise for consideration in the appeal. 7. Having regard to the submissions made by the learned counsel for the accused and the learned Public Prosecutor with reference to the judgment impugned and the materials involved, I find that the following points emerges for consideration. CRA.63/02 8 (1) Whether on the materials produced, has the prosecution established by cogent and convincing legal evidence that the accused, both of them, conjointly assaulted and voluntarily caused hurt to Cicily, the victim, committing trespass upon the courtyard of her residential building, and thereby, committed the offences punishable under Sections 323 and 447 of IPC as found by the court below. (2) If the conviction is found sustainable whether the sentence calls for any modification. 8. These two points in the given facts of the case can be conveniently considered together. Though there is some force in the arguments of the learned counsel as to the delay in the production of the F.I.R. before the court and nonexamination of the eye witness named in Ext.P1 F.I.Statement, I find the circumstances so canvassed cannot be looked in isolation, but with reference to the totality of the facts and circumstances presented in the case. The learned Sessions Judge found the testimony of PW1, son of the victim and PWs.2 and 3 reliable, trustworthy and convincing, and, on such evidence, held that the accused, both of them, conjointly assaulted the victim. Of course there is some minor discrepancy in their evidence and CRA.63/02 9 more particularly with reference to the overtact imputed against A1 of kicking the victim over her underbelly while she was on the ground. Version of the witnesses with reference to that overtact was found not supported by the medical evidence, and so much so, that overtact imputed against them was found unacceptable to the court below. That circumstance, which would indicate that an exaggerated version of the incident was narrated by the ocular witnesses is hardly sufficient to discard their testimony as a whole. Their evidence has to be read as a whole, and if it is found truthful, minor discrepancies, exaggerations and embellishments should be eschewed from consideration. The learned Sessions Judge, who had the opportunity to watch the demeanour and deportment of these witnesses found their testimony reliable and convincing. After going through their testimony, I find no reason to take a different view. PW1 has stated that seeing the assault on his mother, he rushed to the scene and later took her to hospital. He did not prevent the accused from leaving the scene of crime and there is some discrepancy as to at what spot in the courtyard his mother fell down etc. which CRA.63/02 10 were projected in his cross examination, needless to point out, has no merit or significance at all and was rightly and correctly repelled by the learned Sessions Judge. Merely because he is closely related to the victim, his evidence cannot be viewed with suspicion or doubted in the absence of convincing and justifiable grounds. The evidence of a related witness deserves more credit as he would be the last person to implicate some one on false accusation on the death of his closeby relative. There is not even any suggestion to PW1 during the course of his cross examination that he had any illwill or grouse towards any of the accused. PW2 is admittedly a closeby neighbour. He is also related to the victim, who was the wife of his elder brother. The learned Additional Sessions Judge, it is seen, has appreciated the evidence of PW2 taking note of all the surrounding circumstances involved. Implicit reliance on his evidence as to the overtact imputed against A1 of having kicked on the underbelly of the victim as deposed to by the witness was found unacceptable to the learned Sessions Judge. Noting that he viewed the entire incident from considerable distance, CRA.63/02 11 the occurrence was at night, and he was aged aged 60 years, after meticulous analysis, it was found that though his evidence on some specific overtacts imputed against the accused cannot be accepted, his evidence as to witnessing occurrence deserved acceptance. I find the appreciation of his evidence proper, valid and correct and in accordance with the principles of law. Cross examination of the witness would show that his evidence remained unshaken other than bringing forth some contradictions with reference to his previous statement recorded by the police. PW3 is the wife of PW1, the daughter- in-law of the victim. Her evidence also corroborates the version spoken to by PWs.1 and 2. On the basis of the evidence of these three witnesses, the learned Sessions Judge formed the conclusion that the accused, both of them, conjointly assaulted the victim at the courtyard of her residence, and as a result, she sustained injuries and later breathed her last three days after being admitted in a hospital. Medical evidence does not support the overtact imputed against the accused as to A1 kicking on the underbelly of the victim and one ocular witness, named in Ext.P1 statement of CRA.63/02 12 PW1, was not examined in the case, in the proved facts and circumstances of the case, cannot be of any assistance to the accused where their joint assault on the victim at the courtyard of the her house is established by convincing legal evidence. Conviction of the accused for the offences under Sections 447 and 323 of IPC imposed by the learned Sessions Judge is seen fully supported by reliable and convincing legal evidence. Challenge against the conviction on account of minor discrepancies in the evidence of the witnesses and also the scene of crime etc. in the given facts of the case, deserve to be taken note of only for its rejection. I find the conviction imposed against the accused for the offences under Sections 447 and 323 of IPC of the court below is fully sustainable and deserve only to be upheld, and I do so. 8. Now coming to the sentence imposed against the accused, it is noticed that after having found that A2 is vicariously liable for the act of A1, his wife, in pushing down the victim by pressing forcefully by her neck the learned Sessions Judge has imposed different sentences on the CRA.63/02 13 respective accused for the offence under Section 323 of IPC, with A1 the wife sentenced to undergo rigorous imprisonment for six months, and the husband, A2, who is held vicariously liable for the same offence, only for a period of three months. There is no justification for imposing such lesser sentence on A2 when vicarious liability for the overtact of A1 is established against him. Whatever that be, since there is no appeal from the State impeaching the acquittal of the accused under Section 302 of IPC and of the irregularity in the sentence imposed, any enquiry over the discrepancy noticed as above has got only academic value, and I refrain from doing so. Now on the facts presented, whether any modification of the sentence is called for is the question emerging for consideration. Evidently, the whole incident took place pursuant to an altercation and, perhaps, in the heat of surcharged emotions, A1 lost her control and she pushed down the victim. No doubt, the act was inhuman as she had assaulted an old lady. Still, in analysing the punishment to be imposed for such an overtact, where it is shown that it was an unpremeditated assault, the punishment for such offence has CRA.63/02 14 to be properly evaluated. The accused, both of them, as seen from the records, had undergone pretrial detention from 5.3.1999 to 13.4.1999. Sentence of imprisonment imposed against the accused for the offence of Section 323 IPC is modified limiting it to the period of detention already undergone and to pay a fine of Rs.1,000/- each with default term of simple imprisonment for three months. Sentence imposed for the offence under Section 447 of IPC, simple imprisonment for one month is also ordered to be treated as having been undergone in the period of detention, as both sentences has been directed to run concurrently. Fine, if realised, shall be paid as compensation under Section 357 (1) of the Code of Criminal Procedure to the legal heir/heirs of the victim, Cicily. Appeal is partly allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.APPEAL.NO.63 OF 2002 (A) ----------------------------------- J U D G M E N T 24th day of August, 2009 CRA.63/02 16