IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 3272 of 2008() ------------------------------ CRA.739/2005 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CC.867/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- AJAYAGHOSH, S/O.NANDAN, KUNJUMAKKAN PARAKKAL, KUTHIYALAM, ADAVILANGU, THRISSUR DISTRICT. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3272 OF 2008 ............................................ DATED THIS THE 29th DAY OF OCTOBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under Section 325 IPC. Prosecution case is that PW1 was the driver of Bus KL 8 S 7369 and on 14.8.2002 at about 5.40 am, the bus was parked to take passengers and at about 5.55 am, petitioner who is a conductor in another bus, entered the bus through the door meant for the driver and proclaimed that the bus shall not proceed and then hit on the face of PW1, inflicting fracture of nasal bone and thereby committed the offence under Section 325 IPC. PW1 was taken to PW4, the Doctor by PW3, Raju, the cleaner of the bus and Doctor examined PW1 at 6.10 am and prepared Ext.P3 wound certificate. Ext.P1 F.I.Statement was prepared on the same day at 3.30 pm. Ext.P4 F.I.R was prepared and crime was registered. During investigation, Ext.P5 report was filed by the investigating officer to correct the name of the accused, stating that he is not the Conductor of the bus `Tatwamasi' as disclosed in Ext.P1 F.I.Sttement and Ext.P4 F.I.R. After completing the investigation, charge was laid which was taken cognizance by Judicial First CRRP 3272/2008 2 Class Magistrate, Kodungallur. Petitioner pleaded not guilty. Prosecution examined seven witnesses and marked five exhibits. 2. On the evidence, learned Magistrate convicted and sentenced the petitioner to rigorous imprisonment for one year and a fine of Rs.5000/- and in default, simple imprisonment for two months for the offence under Section 325 IPC. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.739 of 2005. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard and records of the courts below were perused. 4. Learned counsel appearing for petitioner pointed out that PW1, after sustaining injury, was examined by PW4 at 6.10 am as seen in Ext.P3 and the alleged cause of the injury as recorded in Ext.P3 was that injury was inflicted by a person who is known by sight. It is also pointed out that in Ext.P1 F.I.Statement, the version of PW1 was that injury was inflicted by the Conductor of Tatwamasi bus residing at a particular CRRP 3272/2008 3 house and petitioner was implicated only on the basis of Ext.P5 report submitted by the Investigating Officer to the effect that accused is not the Conductor of Tatwamasi bus but the petitioner. Learned counsel argued that as per the evidence of PW1, corroborated by the evidence of Pws 2 and 3, petitioner was known to them previously and there was an incident involving the petitioner one month earlier to the incident and if that be the case and the injury was inflicted by petitioner, PW1 would have named petitioner as the assailant at the first instance itself. It was pointed out that if petitioner was the person, who inflicted the injury, in Ext.P1 F.I.Statement, PW1 would not have said that the injury was inflicted by the Conductor of Tatwamasi bus, especially when Pws 1 to 3 have no case that petitioner was the Conductor of Tatwamasi at any point of time. It was therefore argued that on the evidence, courts below should not have convicted the petitioner, especially when PW1 deposed that he had given the name of the assailant in writing to the Doctor. 5. There is force in the submission made by learned counsel. As per Ext.P1 F.I.Statement itself, the person who inflicted the injury on PW1 was known to PW1 previously. It is admitted by Pws 1 and 2 that there was another incident CRRP 3272/2008 4 involving petitioner who is the Conductor of another bus one month earlier to the date of the incident and petitioner was known to them. If that be the case and injury was inflicted by the petitioner as found by courts below, when PW1 was examined by PW4, Doctor, the name of petitioner as the assailant would have been given to the Doctor. On the otherhand, evidence of PW4 with Ext.P3 wound certificate would show that petitioner did not name the assailant but only mentioned that assailant could be identified by sight impliedly stating that his name is not known. If the assailant was known to PW1 and he was involved in another incident one month earlier, in Ext.P3 wound certificate it would have been stated that the assailant is the petitioner. Evidence of PW1 is that he had given the name of the petitioner to PW4 and that too in writing which can never be the truth. 6. There is force in the submission of learned counsel that if the evidence of Pws 1 to 3 is true, PW1 would not have mentioned in Ext.P1 F.I.Statement that petitioner is the Conductor of Tatwamasi bus. Ext.P1 shows that the person who inflicted the injury on petitioner is described as the Conductor of Tatwamasi bus residing at western side of Kara panchayat. Ext.P5 report submitted by the investigating officer after CRRP 3272/2008 5 investigation implicating petitioner is to the effect that the person who inflicted the injury is not Ghosh, who is the conductor of Tatwamasi bus but Ajay ghosh, son of Kaniyalam Kuthumackal Purackal Nandanan. If in fact petitioner inflicted the injury, PW1 would have definitely mentioned the name of petitioner and would not have mentioned that he is the conductor of Tatwamasi bus at least when Ext.P1 F.I.Statement was recorded. It is more so because even though the incident was at 5.55 pm and PW1 was examined by PW4 at 6.10 am, Ext.P1 F.I.Statement was recorded only at 3.30 pm and PW1 had sufficient time to find out the details of the assailant. Unfortunately, these aspects were not taken note of by courts below while accepting the evidence of Pws 1 to 3. As per the evidence of Pws 1 to 3, apart from them who are the employees of the bus, there were several independent witnesses who are the passengers of the bus. None of them was examined. Evidence also establish that Pws 1 and 2 were also involved in other cases regarding the dispute with the other bus due to the trips of the bus violating the time schedule. In such circumstances, based on the interested version of Pws 1 to 3 alone, courts below should not have convicted the petitioner especially when the name of CRRP 3272/2008 6 petitioner was not mentioned in Ext.P3 wound certificate and the description of the assailant in Ext.P1 F.I.Statement is different. At least benefit of doubt should have been granted to the petitioner. Revision petition is allowed. Conviction of revision petitioner is set aside. Petitioner is found not guilty and is acquitted of the offence. Bail bond executed by petitioner stands cancelled. Fine, if any, deposited before the Magistrate shall be allowed to be withdrawn by the petitioner. M.SASIDHARAN NAMBIAR, JUDGE lgk/-