IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1368 of 2006() ------------------------------ CRA.203/2003 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CC.256/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S): PETITIONERS/APPELLANTS/ACCUSED ---------------------------------------------------- 1. RAJAN, S/O. NARAYANAN ACHARI, RAJEEV BHAVAN, MOONNAMKALUNGU, KAIPPATTOOR MURI, VALLIKKODE VILLAGE, KOZHENCHERY TALUK. 2. PRASAD, S/O. THANKAPPAN ACHARI, KUDAMUKKU LAKSHAM VEEDU COLONY, KUDAMUKKU MURI, VALLIKKODE VILLAGE, KOZHENCHERY TALUK. BY ADV. SRI.C.K.SAJEEV RESPONDENT(S): COMPLAINANT --------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. AMJAD ALI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.R.P.No. 1368 of 2006 ------------------------------------------------- Dated this the 30th day of March, 2009 ORDER The revision petitioners in this petition assail the concurrent verdict of guilty, conviction and sentence imposed on them in a prosecution for offences punishable under Secs.324 and 326 IPC. The appellate court modified the sentence. The petitioners now face sentence of imprisonment till rising of court and to pay a fine of Rs.20,000/- and in default, to undergo rigorous imprisonment for a period of six months each. The entire fine amount, if realised, has been directed to be paid to P.W.4 as compensation. Though the allegations were raised initially under Secs.324 and 326 IPC, the learned Magistrate has found the petitioners guilty of the offence punishable under Sec.325 read with Sec.34 IPC. 2. The crux of the allegations against the petitioners is Crl.R.P.No. 1368 of 2006 -: 2 :- that they at about 10.30 p.m. on 21/5/2000, in furtherance of their common intention, assaulted P.Ws.2 and 4 – spouses. A1 allegedly wielded an iron rod. He beat P.W.4 with the iron road to cause an injury on the chest and fracture of two ribs. He allegedly beat P.W.2 with the iron rod on her thigh. A2 allegedly, in furtherance of the common intention which he shared with A1 allegedly, took a country stone and inflicted injuries on P.Ws.2 and 4. 3. The incident took place on 21/5/2000 at about 10.30 p.m. On the same night the victim/P.W.4 was taken to the Medical Mission Hospital, Pandalam, where P.W.3 examined him and issued Ext.P1 wound certificate. In the wound certificate, the allegation is that the incident had taken place at about 7.30 p.m. P.W.2, though she claimed to have suffered injuries, has not gone to the Doctor and there is no medical evidence to support the allegation that she had suffered injuries. The First Information Statement – Ext.P2, is seen lodged by P.W.4 on 29/5/2000. In such First Information Statement, allegations are raised not only against the petitioners herein; but also against two others. Altogether, there are four accused shown in the First Information Statement. They are the 1st accused, his son, his wife as also his brother-in-law (i.e., the 2nd accused herein). Crl.R.P.No. 1368 of 2006 -: 3 :- After investigation, final report was filed by the police raising allegations only against the petitioners herein. Cognizance was taken by the learned Magistrate. The accused denied the offences alleged against them and thereupon P.Ws.1 to 6 were examined and Exts.P1 to P6 were marked on the side of the prosecution. 4. The accused, in the course of cross-examination of prosecution witnesses and later when examined under Sec.313 Cr.P.C., took up a definite stand that the incident did not take place in the manner alleged by the prosecution. They contended that, as a matter of fact, the incident did take place in a different manner. There were some earlier disputes between the brother- in-law of P.W.4 and the accused and it was P.W.4 along with some others who went to the house of the accused and attacked them. D.Ws.1 and 2 were examined in support of the case of the accused. Ext.D1 was marked. 5. P.W.1 is an alleged witness to the occurrence. He turned hostile to the prosecution completely. P.W.2 is the injured/wife of P.W.4. Though she claims to have suffered injuries, there is no medical evidence whatsoever to support her version that she has suffered injuries in the course of accident. She did, however, tender evidence in support of the prosecution. Crl.R.P.No. 1368 of 2006 -: 4 :- P.W.3 is the Doctor who on that night examined P.W.4 and issued Ext.P1 wound certificate. P.W.4 is the victim. Ext.P2 is First Information Statement lodged by him. His present version on oath did not quite tally with the version in Ext.P2. P.W.5 is the Head Constable who recorded Ext.P2 and registered Ext.P3 FIR on the basis of Ext.P2. P.W.6 conducted the investigation and filed the final report. Ext.P4 is the scene mahazar prepared and Exts.P5 and P6 are the reports submitted to the court by the Investigating Officer. 6. The courts below concurrently came to the conclusion that the oral evidence of P.Ws.2 and 4 can safely be believed. Accordingly, they proceeded to pass the impugned concurrent judgments. The appellate court indulgently modified the sentence to imprisonment till rising of court and fine. 7. The petitioners claim to be aggrieved by the impugned concurrent judgments. The learned counsel for the petitioners assails the impugned concurrent judgments on various grounds. 8. First of all, it is contended that the courts below did not approach the evidence of P.Ws.2 and 4 in a fair, reasonable or just manner. It could not have been lost sight of by the courts that the oral evidence of P.Ws.2 and 4 are contradictory to each other in material particulars. Their version is not consistent Crl.R.P.No. 1368 of 2006 -: 5 :- with the earliest version about the incident given by P.W.4 to the police. That First Information Statement was lodged long after the incident and the version that is given in Ext.P2 is inconsistent with the present version. The courts below ought to have noted that the oral evidence of P.W.2 is not supported by the evidence of even P.W.4. No independent witness has at all supported the prosecution case. In these circumstances, the courts below should not have placed reliance on the incongruent, uninspiring and totally improbable interested testimony of P.Ws.2 and 4. At any rate, the benefit of doubt must have been conceded to the petitioners, contends the learned counsel for the petitioners. 9. I find merit in the contention of the learned counsel for the petitioners. First of all, I take note of the fact that there is no prompt First Information Statement lodged before the police. Of course, I take note of the circumstance that P.Ws.4 was admitted to the hospital on the same night and therefore he cannot be blamed if the police had not go to the victim to record his statement. But the fact remains that the absence of an earliest version prior to Ext.P1 must prompt a prudent mind to approach the evidence of P.Ws.2 and 4 with great caution and care. Crl.R.P.No. 1368 of 2006 -: 6 :- 10. The accused have a specific case that they are the victims of aggression and not aggressors. It is their fairly specific case that at about 7.30 p.m. on 21/5/2000 P.W.4 had trespassed into the house of the accused and had indulged in culpable overt acts. It is relevant in this context to note that the first statement made to the Doctor in Ext.P1 wound certificate suggests that there was an incident at 7.30 p.m. That version of the accused gets support from the oral evidence of P.W.4 who admits that he was present in the courtyard of the house accused on the night in question, though he advanced a version that he was dragged to that place after the alleged incident by the offenders. 11. P.W.2 claims to be injured; but even P.W.4 does not specifically support that version. It is crucial to note that there is no medical evidence to support the allegation that P.W.2 had suffered any injury. 12. It will not be inapposite straightaway to note the first version given in Ext.P2 which version finds the light of the day about a week after the occurrence. The version advanced in Ext.P2 is incongruent to the present version advanced by P.W.4. While overt acts are alleged against A1 and A2 as also the wife of A1 and the son of A1 in Ext.P2, P.W.4 does not have such a case Crl.R.P.No. 1368 of 2006 -: 7 :- at all now. P.W.4 conveniently asserts now in the box that he lost consciousness in the course of the incident which version is not at all supported by Ext.P2 First Information Statement. The learned counsel for the petitioners contends that P.W.4 is conveniently pressing into service the theory of loss of consciousness because he is unable to explain the crucial circumstances which are there in evidence. 13. I have been taken through the entire evidence. Having considered all the relevant inputs, I am certainly persuaded to agree with the learned counsel for the petitioners that it will be more prudent, reasonable and just to concede to the accused the benefit of doubt which is aroused in the mind of the court on the basis of totality of inputs available. I have no hesitation to concede to the accused the benefit of doubt. The evidence available does not inspire the confidence of the court that any incident had taken place other than in the courtyard of the house of the accused. Prevarication by P.W.4 in Ext.P2 First Information Statement and on oath before court does generate reasonable suspicion. The fact that P.W.2 is not proved to have suffered any injury and the fact that the evidence of P.Ws.2 and 4 did not reasonably tally are major circumstances that persuade this Court to concede to the accused the benefit of doubt. Crl.R.P.No. 1368 of 2006 -: 8 :- 14. The above discussions lead me to the conclusion that the impugned verdict of guilty, conviction and sentence do warrant revisional interference. 15. In the result: (a) This revision petition is allowed. (b) The impugned verdict of guilty, conviction and sentence imposed on the petitioners under Sec.325 read with Sec.34 IPC are set aside. (c) The petitioners are found entitled, at any rate, to the benefit of doubt. They are found not guilty and acquitted. (R. BASANT, JUDGE) Nan/ Crl.R.P.No. 1368 of 2006 -: 9 :-