IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 3248 of 2003 ------------------------------------- (AGAINST THE JUDGMENT DATED 24.9.2003 IN CRA.489/2003 of THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC-II), ERNAKULAM) AGAINST THE ORDER DATED 30.4.2003 IN CC.932/1999 of THE COURT OF JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM) . ................... REVN. PETITIONER(S): -------------------------------- 1. VINOD, S/O.MOHANAN, AGED 25, RESIDING AT SREE VIDYA, PARIYIL ROAD, PUTHUKALAVATTOM, ELAMAKKARA, EDAPALLY SOUTH, ERNAKULAM. 2. VIPIN, S/O.JOSEPH, AGED 26, THIRUPARAMBIL VEETTIL, PONOTH ROAD, KALOOR, ERNAKULAM BY ADV. SRI.T.D.ROBIN RESPONDENT(S): ------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2011, ALONG WITH CRMC NO. 492 OF 2005 THE COURT ON 30/06/2011 PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P.No. 3248 of 2003 & Crl.M.C.No. 492 of 2005 ---------------------------------------- Dated this the 30th day of June, 2011 ORDER As the above revision petition as well as the Crl.M.C. are interconnected and as the parties are same, the above matters are heard together and being disposed of by this common order. Crl.R.P.No.3248 of 2003: 2. The above revision petition is preferred at the instance of the revision petitioners/accused, who face prosecution for the offence punishable under Section 326 read with Section 34 I.P.C. The trial court viz., the Judicial First Class Magistrate court-II, Ernakulam, as per its judgment dated 30.4.2003 in C.C.No.932 of 1999 convicted the revision petitioners under Section 326 read with Section 34 I.P.C. and accordingly, sentenced them to undergo simple imprisonment for six months each under Section 326 read with Section 34 I.P.C. and also directed accused Nos.1 and 2 to pay a compensation of `.7500/- each and thus, a total sum of `.15,000/- is directed to be paid as compensation to PW1. The said Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-2-: judgment has been challenged by the accused in an appeal before the Sessions Court, Ernakulam, but by judgment dated 24.9.2003 in Crl.A.No.489 of 2003, the court of Additional Sessions Judge (ADHOC- II), Ernakulam allowed the appeal only in part. Thus, while confirming the conviction and the sentence, the direction to pay compensation is modified and reduced as `.7,000/- and thus, each of the accused is directed to pay a sum of `.3500/-. Aggrieved by the above judgments of the trial court as well as the appellate court and challenging the conviction and sentence and order to pay compensation, the accused preferred the above Criminal Revision Petition. Crl.M.C.No.492 of 2005: 3. The de facto complainant in C.C.No.932 of 1999 of the court of Judicial First Class Magistrate-II, Ernakulam is the petitioner in the above Crl.M.C. On the ground of insufficiency of sentence and the compensation amount awarded by the trial court, the de facto complainant preferred Criminal Revision Petition (Crl.R.P.No.34 of 2003) before the Sessions Court,Ernakulam. By judgment dated 25.8.2004 in Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-3-: Crl.R.P.No.34 of 2003, the court of Additional Sessions Judge (ADHOC- I) Ernakulam, dismissed the revision petition on the ground that in the appeal, at the instance of the accused challenging the very same judgment dated 30.4.2003 in C.C.No.932/1999 of the Judicial First Class Magistrate Court-II. Ernakulam and the conviction and sentence, by judgment dated 24.9.2003 in Crl.A.No.489 of 2003, the court of Additional Sessions Judge (ADHOC-II), Ernakulam, while confirming the conviction and sentence, modified and reduced the compensation amount and therefore, in the revision, which is subsequently came up for hearing, no order can be passed, and that court cannot alter the order of compensation modified and reduced by the Additional Sessions Court in Crl.A.No.489 of 2003. Thus Crl.RP.No.34 of 2003 was dismissed. It is, against the above order, the de facto complainant preferred the Crl.M.C. under Section 482 of the Cr.P.C. 4. The prosecution case is that at about 3 p.m. on 17.9.1998, accused Nos.1 and 2 in furtherance of their common intention voluntarily caused grievous hurt to CW1/the de faco complainant with dangerous weapon of Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-4-: glass piece in front of the shop belonging to the de facto complainant at V.I.P.Road, near International Stadium, Kaloor,ElamkulamVillage. According to the prosecution, the de facto complainant is conducting a 'C' class shop and also running a cycle workshop at the above said place and the accused came there and demanded for cigarette which was declined by CW1 and aggrieved by the same,the accused uttered obscene words against him and the second accused took up a glass jar kept in the shop and after breaking the same, he took a glass piece and stabbed on PW1. According to the prosecution, the first accused has also attacked him. Thus, the case of the prosecution is that when PW1 resisted the attack, he had sustained injuries on his left little finger and ring finger. According to the prosecution,when he cried loudly, the local people had rushed to the scene and on seeing them, the accused ran away from the spot and the injured was taken to General Hospital for treatment. It is the further case of the prosecution that on the basis of the above incident, PW1 gave information to the Police which was reduced into writing and thus, First Information Statement was recorded on the basis of which Crime No.280 Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-5-: of 1998 was registered in the Ernakulam Town North Police Station for the offence under Section 326 read with Section 34 of I.P.C. The Police, after investigation, filed a report before the Judicial First Class Magistrate Court-II, Ernakulam, based upon which cognizance was taken for the said offence and thus, instituted C.C.No.932 of 1999. On appearance of the accused, a formal charge was framed which was read over and explained to the accused, but they denied the same and pleaded not guilty. During the trial, Pws.1 to 7 were examined from the side of the prosecution and Exts.P1 to P5 were produced. Exts.D1 to D2(a) were marked from the side of the defence, though no witnesses were examined. It is thereafter,the trial court found that the accused is guilty under Section 326 read with Section 34 I.P.C. and accordingly,the trial court imposed the sentence and direction to pay compensation as indicated earlier. The challenge against the above conviction and sentence in appeal also fails and thus, they preferred this Criminal Revision Petition. 5. I have heard Sri.T.D.Robin, counsel appearing for the revision petitioners/accused, Sri.Rajasimhan, learned counsel appearing for the Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-6-: petitioner in Crl.M.C./the de facto complainant and Smt.Rekha.C.Nayar, the learned Public Prosecutor. 6. Counsel for the revision petitioners Sri.T.D.Robin strenuously submitted that the prosecution has miserably failed to establish its case beyond reasonable doubt and there is no legal evidence and materials in support of the conviction and sentence imposed against the petitioners by the trial court as well as the appellate court. Learned counsel submitted that there is a delay of 23 days in lodging Ext.P1 F.I.statement and the prosecution had suppressed the original F.I.statement dated 19.9.1998 given by PW1. It is also the submission of the learned counsel that the identity of the accused has not been established beyond reasonable doubt. The further contention of the learned counsel is that the accused were not properly questioned under Section 313 of Cr.P.C. and no question was put to them regarding the injury allegedly sustained by the de facto complainant, which forms the basis for the conviction of the revision petitioners. According to the learned counsel, Section 326 of I.P.C. is not at all established since there is no evidence to show that the de facto Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-7-: complainant was not in a position to follow his daily pursuits for 20 days. It is also the submission of the learned counsel that the departmental proceedings initiated against PW5 cannot be made the basis for conviction of the petitioners. Thus, according to the learned counsel, the trial court as well as the appellate court committed wrong in convicting and sentencing the revision petitioners in this case, especially when the investigation is defective and when there is no substantial evidence warranting conviction and sentence. 7. Learned Public Prosecutor submitted that the de facto complainant and the accused are not strangers and they have got prior acquaintance and therefore, a mere omission to mention the name of the accused is not a ground to hold that the prosecution has failed to establish the identity of the accused. According to the learned Public Prosecutor, there is no suppression of material facts and for the lapse on the part of PW5, he was properly dealt with through the departmental proceedings. It is also the submission of the learned Public Prosecutor that Pws.1 and 6 have deposed that they can identify the accused though they were not able Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-8-: to mention the name of the assailants. It is the further submission of the learned Public Prosecutor that the delay was because of the fact that the de facto complainant was hospitalised and thus, the prosecution has explained the delay and therefore, the same is not a ground to acquit the accused. 8. Adv.Sri.Rajasimhan, learned counsel appearing for the petitioner in Crl.M.C.No.492 of 2005/the de facto complainant submitted that the minor defects or the lapse on the part of the prosecution agency, especially regarding the non-registration of crime in pursuance of F.I. statement dated 19.9.1998 of PW1, cannot be a ground for acquittal, particularly when the de facto complainant has sustained very serious and grievous injury at the hands of the accused. It is the specific contention of the learned counsel that immediately after incident,that had taken place on 17.9.1998, on 19.9.1998 the de facto complainant had furnished the information to PW5, who recorded Ext.P4 F.I.R. as per Ext.P1. But, he wilfully neglected to register the crime on 19.9.1998 itself and no investigation was undertaken. According to the learned counsel, no crime was registered in time and such lapse cannot be considered as a ground for Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-9-: the acquittal of the accused. According to the learned counsel, the de facto complainant had sustained very serious and grievous injury due to the attack of the accused persons and immediately,after the incident, though he was taken to P.V.S.Hospital, he was not admitted there and he was referred to the Government Hospital, Ernakulam wherein he was admitted and treated as an inpatient. According to the learned counsel, besides the above, the de facto complainant had also undergone treatment as an inpatient in the Medical College Hospital, Kottayam from 18.9.1998 and he was discharged from there only after 21 days. According to the learned counsel,the above circumstances would reveal the gravity of the offence and the injury inflicted against the de facto complainant. Relying on Ext.P2 wound certificate and the deposition of PW2 and the observation made by the learned Magistrate of the trial court, the counsel submitted that the ingredients of Section 326 are attracted because there is fracture and dislocation of the left little finger and ring finger of the de facto complainant and therefore,the conviction of the accused under Sections 326 and 34 are absolutely correct and legal and no interference is Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-10-: warranted. According to the learned counsel, though it is specifically found that the accused have committed the offence punishable under Section 326 read with section 34 I.P.C. only a six months imprisonment is awarded as punishment and the same is not adequate and proper when compared with the overt act and seriousness of the offence committed by the accused and injury sustained by PW1 and therefore,the sentence has to be enhanced. It is also the submission of the learned counsel that as per the observation of the learned Magistrate and as per the deposition of PW1, supported by the deposition of PW2 and Ext.P2 wound certificate, the two fingers of the de facto complainant, where the accused inflicted injury, became impaired and therefore,the trial court ought to have awarded a substantial amount towards the compensation and though the trial court has imposed a total sum of `.15,000/-,i.e. `.7500/- each on the accused, the appellate court reduced the same to a total sum of `.7000/- i.e,`.3500/- each to the accused. Hence,according to the learned counsel,the de facto complainant shall be compensated sufficiently. In support of the above contentions, the learned counsel placed reliance upon Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-11-: the following decisions:- Allahabad Bank v. Bengal Paper Mills Co.Ltd. (AIR 1999 SC 1715), Bibhuti Bhusan Das Gupta and another v. Sudhir Kumar Mazumdar (AIR 1966 Cal.473), State of Karnataka v. Appa Balu Ingale and others (1993 Cri.L.J.1029), Zahira Habibulla.H.Sheikh v. State of Gujarat (2004(2) KLT SN 30Case No.36), Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204] and Eknath Shankarrao Mukkawar v. State of Maharashtra (AIR 1997 SC 1177). 9. I have carefully considered the arguments advanced by the counsel appearing for the rival parties and the learned Public Prosecutor. I have perused the judgments of the courts below and also the depositions and other materials available on record. I have carefully gone through the authorities cited during the hearing of the case. 10. As I indicated earlier,the specific prosecution case is that PW1,the injured was conducting a 'C' class shop along with which he is also running a cycle shop and according to the prosecution,at about 2.30 p.m., on 17.9.1998, the accused came in the said shop of PW1 and asked for cigarette and PW1 denied the same. Consequently, the accused infuriated with the same and inflicted the injuries on PW1. In order to Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-12-: prove the above prosecution case, the prosecution mainly relied upon the evidence of Pws.1,2,5,6 and 7 and also the main documents like Exts.P1 F.I.statement, Ext.P2 wound certificate,Ext.P3 scene mahazar and Ext.P4 F.I.R. PW1 is the injured. When he was examined, he had deposed in favour of the prosecution which was supported by the evidence of PW6 who is none other than the wife of PW1. Pws.2,3 and 4 who were cited and examined as independent witnesses, but they turned hostile towards the prosecution. Thus,it can be seen that the main evidence which is pressed into service by the prosecution for canvassing the conviction against the accused is that of Pws.1,2,5,6 and 7. In this juncture, it is relevant to note that the available evidence, especially the evidence of PW1, regarding the injury and Ext.P2 wound certificate supported with the evidence of PW2, would prove that PW1 has sustained injury and such injury is proved as grievous injury. The main contention advanced by the learned counsel appearing for the revision petitioners is that going by the records and the case of the prosecution, it can be seen that there is a delay of 23 days in lodging Ext.P1 F.I.statement since the alleged incident has Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-13-: taken place on 17.9.1998. 11. I find substance in the above contention. According to the prosecution,though the incident has taken place on 17.9.1998, Ext.P1 F.I.statement was given only on 11.10.1998. There is no convincing explanation for the delay. Normally,when a person is admitted in a Government Hospital or any other hospital complaining of medico-legal case,the same will be intimated to the Police and the Police is likely to come to the hospital and record the F.I.statement. But, in the present case, the prosecution has not produced any evidence to show as to whether, after the admission of PW1 in the Government Hospital,Ernakulam, any intimation was given to any of the Police Stations. Even according to the prosecution case, the crime was registered only on 11.10.1998 as per F.I.statement. Going by the evidence of the prosecution viz., Pw.5 and Ext.P7, it can be seen that PW1 claimed to have gone to the Police Station on 11.10.1998 and lodged the F.I.statement. If that be so, even if the Police has not come to the hospital on any date subsequent to the admission of PW1 in the Government Hospital, PW1 could have lodged Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-14-: the complaint either himself or through his wife- PW6 or even otherwise by sending the message, by availing any other means before Ext.P1 F.I.statement. But,there is no such attempt. The only explanation is that PW1 was hospitalised and undergoing treatment as an inpatient. But,the said explanation does not appear to be a reasonable and convincing one. Even though out of record, the submission of the learned counsel for the petitioner in the M.C. becomes relevant and according to him, PW1 was admitted in the Medical College Hospital,Kottayam on 18.9.1998 and he had undergone there for 21 days, in that case also, if the same is admitted as true, the intimation would have been sent from the Medical College Hospital to the concerned Police Station. The above submission of the learned counsel for the de facto complainant and the non-explanation of prosecution regarding the delay in lodging the F.I.statement contributes serious doubt regarding the very basis of the prosecution case. 12. Besides all the above, the learned counsel for the petitioner submitted that PW1 had lodged the F.I.statement on 19.9.1998 in the North Police Station, which was recorded by PW5. The prosecution is Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-15-: also admitting the said contention. But, there is no explanation from the side of the prosecution as to why those F.I.statements are not produced and marked as prosecution materials. Of course, there is a contention from the side of counsel appearing for the de facto complainant that PW5 deliberately omitted to register a crime on the basis of such F.I.statement. But, the above submission of the learned counsel is not supported by any materials or evidence. Thus, it can be seen that besides the belated Ext.P1 F.I.statement, there was another F.I.statement dated 19.9.1998 which was suppressed for which there is no plausible and convincing explanation from the prosecution side. The above two incidents gave a serious doubt regarding the very prosecution case. Therefore, it becomes absolutely necessary to examine and scan the evidence on record scrupulously and to find out the veracity of the prosecution case and also the defence version. 13. The specific defence taken by the accused when they denied the prosecution allegation is that PW1 sustained injury at about 3 p.m. and he did not sustain any injury as alleged by the prosecution at the place of occurrence and at the time as alleged by the prosecution. Though Pws.1 Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-16-: and 6 claimed that they have got prior acquaintance with the accused, they did not mention the name of the accused either in the F.I.statement which was lodged on 11.10.1998 or 19.9.1998. The prosecution has miserably failed to show how they identified and located the accused and no evidence is adduced in this regard. Though the incident had taken place on 17.9.1998, Ext.P1 F.I.statement was lodged after 23 days from the date of incident, and still then, PW1 was not aware of the real person responsible for the incident. Naturally, PW1 could have collected the name of the accused within that time if his claim that he had previous acquaintance with the accused is correct. But, there is no explanation for the same. The failure on the part of the de facto complainant in giving the name of the actual assailants became more relevant, when considering the defence version. According to Pws.1 and 6, the incident has taken place inside the shop of PW1, but according to PW5, the incident had taken place near the mud portion of the road. Ext.P3 scene mahazar also supports the version of PW7 and PW5, which goes against the version of Pws.1 and 6. So, the evidence of the loyal prosecution witnesses Pws.1 Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-17-: and 6 is in conflict with the other loyal witnesses particularly,the Police Officers Pws.5 and 7 whose evidence is supported by the contemporary documents Ext.P3 scene mahazar. So, regarding the place of occurrence also, the prosecution allegation is not definite and beyond doubt. The defence has succeeded in bringing out the fact, through the cross- examination of Pws.1 and 6, that at 11 a.m. on 17.9.1998, PW1 had a function and he was not in the shop at that time. As per the allegation of the prosecution and the claim of PW1, from the injury inflicted by the accused, he had sustained fracture on the little left finger and ring finger. Ext.P2 wound certificate also shows his injury as lacerated wound and the second injury as proximal interphalageal joint dislocation. If that be so, naturally there will be blood stain either in the shop of PW1 where the incident had taken place, according to Pws.1 and 6, or at the spot in the mud portion of the road, allegedly the incident had taken place as per Ext.P3. But, there is no bloodshed. The above discrepancy in the prosecution is consistent with and probablise the defence version that PW1 sustained injury at some other incident occurred in some other place. Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-18-: Thus, the above facts particularly,the delay in filing Ext.P1,the suppression of F.I.statement dated 19.9.1998 and the failure of PW1 to give the correct name of the accused though he claimed to have previous familiarity or acquaintance with the accused and the change of the place of occurrence further strengthened the doubt against the prosecution story and the very veracity of the prosecution allegation. Thus, the evidence and materials on record are not sufficient to hold that the prosecution has succeeded in proving the involvement of the accused in the incident in which PW1 sustained injuries. Therefore, according to me, the prosecution has miserably failed to establish the allegation against the revision petitioners/accused beyond reasonable doubt and the revision petitioners/accused are entitled to get the benefit of doubt. Consequently,the conviction recorded by the trial court as well as the appellate court against the revision petitioners/accused are liable to be set aside and I do so. 14. As I have already found that the prosecution has miserably failed to establish the case beyond reasonable doubt against the accused, Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-19-: and set aside the conviction imposed on the accused as per the judgments of the trial court as well as the appellate court, Crl.M.C.No.492 of 2005 is devoid of any merit and the same is liable to be dismissed and I do so. In the result,this Criminal Revision petition is allowed setting aside the judgment dated 30.4.2003 in C.C.No.932 of 1999 of the court of Judicial First Class Magistrate-II, Ernakulam and the judgment dated 24.9.2003 in Crl.A.No.489 of 2003 of the court of Additional Sessions Judge (AdHOC-II), Ernakulam and acquitting the revision petitioners of all the charges levelled against them. The bail bond if any executed by the revision petitioners/accused shall stand cancelled and they are set at liberty. The Crl.M.C. is dismissed as the same is devoid of any merit. V.K.MOHANAN, Judge MBS/ Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-20-: V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:.. Crl.R.PNO.3248of 2003 & Crl.M.C.No.492 of 2005 :-21-: