IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 82 of 2001() ----------------------------------- CC.145/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER/PW1 : ------------------------------- SIVASANKARAN, S/O.BALAKRISHNA PILLAI, KOTHADAYYAM VEEDU, KUREEPUZHACHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS/COMPLAINANT & ACCUSED 1, 3 TO 5 : ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MANIKANTAN KOCHUKRISHNA PILLAI, NAMBIAR AIYYATHU PADINJATTATHIL, KANNIMEL CHERRY, SAKTHIKULANGARA. 3. SURESH ARUMUGHAN, DO. DO. 4. SANTHOSH RAVEENDRAN PILLAI, VADAKKINEZHUTHU THEKKETHIL, KUREEPUZHA, DO. 5. RAJENDRAN KUNJAN PILLAI, DO. ADV. SRI.K.SUBASH CHANDRA BOSE - R2TO5 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, ALONG WITH CRRP NO.134 OF 2001 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL. R.P. Nos. 82 of 2001 &134 of 2001 ----------------------------------------------------- Dated this the 14th day of October, 2008 O R D E R These revision petitions arise from C.C.No.145 of 1998 on the file of Judicial Magistrate of First Class -II, Kollam. On the information given by the revision petitioner, Sakthikulangara police registered Crime No.279 of 1997 for offences punishable under Sections 143,147, 148, 324 and 326 read with Section 149 of the Penal Code (for short, 'the Code') against five accused. Learned magistrate acquitted A1 and A3 to A5 of all the charges made against them while A2 was found guilty under Section 324 of the Code convicted for that offence and sentenced to undergo R.I for six months. A2 was acquitted of the remaining charges made against him. Aggrieved, defacto complainant/PW1 field these revision petitions. Criminal R. P. No.82 of 2001 is directed against the acquittal of A1, A3 to A5 while Criminal R.P. No.134 of 2001 is directed against the acquittal of the second accused for all offence other than Section 324 of the Code and inadequate sentence. CRL. R.P.Nos. 82 of 2001 &134 of 2001 2 2. Heard. 3. Following points arose for consideration. (1). whether acquittal of A1 and A3 toA5 is legal and proper. (2) whether acquittal of A2 for all offence other than Section 324 of the code and sentence awarded are legal and proper. 4. Perused the records. 5. Point Nos. 1and 2: Case is that on 23/12/1997 at about 7.30 P.M., A1 to A5 formed unlawful assembly on the public road, committed rioting armed with hard sticks and voluntarily caused hurt/grievous hurt to the revision petitioner/PW1 by beating him with sticks. PW6 examined PW1 on 23/12/1997 at about 8.15 P.M. and issued Exhibit P2. It is revealed from Exhibit P2 that PW1 suffered abraded contusion on his left scapula and left axilla. Exhibit P3 is the discharge certificate proved through PW6. In Exhibit P3, it is stated that there was fracture of bone on the left scapula. In cross examination PW6 stated that he had no occasion to see the X-ray film of PW1(regarding the fracture), but in re-examination he stated that he was satisfied that PW1 had suffered fracture of bone. CRL. R.P.Nos. 82 of 2001 &134 of 2001 3 6. So far as the incident is concerned, PWs 3 and 4 did not support the prosecution. According to PW1(revision petitioner), he was on his way to his work place and when he reached the place of occurrence, A1 to A5 and 2-3 other identifiable persons were seen at the place of occurrence. A1 blocked him. A2 beat him with stick on the left scapula. A3 and A4 beat him with sticks on his back. He fell down. When people gathered there, accused ran away with sticks. PW1 claimed that there was sufficient light at the place of occurrence from the burning tube light on the nearby electric post. PW2 claimed that hearing cry from place of occurrence he went there and found PW1 lying at the place of occurrence. PW5 stated that he had seen the accused and others bringing sticks from the nearby lane. All of them- about 8 persons-beat PW1 with sticks for about 6-7 minutes. They threw away the sticks and escaped from the scene. In cross examination PW5 stated that he did not see who beat PW1 first or last. He asserted that all the 8 persons had assaulted PW1. 7. Accused examined DW1. He claimed that hearing cry from the place of occurrence he reached that place and found PW1 CRL. R.P.Nos. 82 of 2001 &134 of 2001 4 lying feeble on the road. There was no light. He asked PW1 what had happened. PW1 told him that 'somebody' beat him from behind. 8. Learned magistrate considered evidence and found that though PWs 1 and 5 stated about the involvement of A1 to A5 in the alleged incident and though there is evidence to show that A1 to A5 were present at the scene of occurrence, their version that A1 and A3 to A5 were members of unlawful assembly and assaulted PW1 with sticks cannot be accepted. Medical evidence did not support that version. On the other hand medical evidence was only consistent with the evidence that A2 beat PW1 with stick. The mere presence of A1 and A3 to A5 at the spot by itself was not sufficient to hold that they formed unlawful assembly with the second accused . According to the learned magistrate there was sufficient evidence to show that second accused caused hurt to PW1 with stick. Hence the second accused was convicted for the offence under Section 324 of the Code. It is contented that the the finding of learned magistrate is not legal or proper. 9. It is stated that PWs1 and 5 are witnesses to the alleged CRL. R.P.Nos. 82 of 2001 &134 of 2001 5 incident. Though PW5 stated about the involvement of 8 persons and asserted that all the 8 persons had assaulted PW1, latter has no such case. According to PW1, only A1 to A5 assaulted him and other persons were standing nearby. Those persons had not assaulted him. Learned magistrate observed that version of PW5 that all the 8 persons assaulted PW1 and the version of PW1 himself that all of A1 to A5 assaulted him is quite improbable in view of Exhibit P2, which revealed that PW1 had only two injuries as noted by PW6. Learned magistrate also observed that as per version of PW1, it was the second accused who beat him on the left scapula with stick and that claim of PW1 is corroborated by presence of two external injuries on that part of his body. It is in these circumstances that learned magistrate after considering the evidence of PWs 1 and 5 and DW1 came to the conclusion that PWs1 and 5 gave exaggerated version regarding the involvement of A1 and A3 to A5. Learned magistrate in the circumstances, gave benefit of doubt to A1 and A3 to A5 which, I find no reason to say, is illegal or incorrect. Court below appreciated the evidence and came to the conclusion that mere presence of A1 and A3 CRL. R.P.Nos. 82 of 2001 &134 of 2001 6 to A5 at the place of occurrence at the relevant time is not sufficient to rope them in, invoking Section 149 of the Code. As such, acquittal of A1 and A3 to A5 require no interference. 10. Then next question is whether conviction of second accused for offence under Section 324 of the Code and sentence imposed thereunder are legal and proper. Though PW6 stated from Exhibit P3 that PW1 had fracture of bone on the scapula, he stated in cross examination that he had not seen the X-ray film. Mere statement in re-examination that he was satisfied that there was fracture is not sufficient since it must be the objective satisfaction of the Court that PW1 suffered grievous hurt. Though, learned magistrate has not stated that as a reason for holding that offence under Section 324 of the Code alone is made out, in the light of above fact emerging in the evidence of PW6, I do not consider it necessary to interfere with the conviction of second accused for the offence under Section 324 of the code alone. 11. Considering the nature of injuries suffered by the revision petitioner, it is not necessary to interfere with the sentence awarded. CRL. R.P.Nos. 82 of 2001 &134 of 2001 7 Resultantly, these revision petitions fail and are accordingly dismissed. THOMAS P. JOSEPH, JUDGE scm