IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 23RD MAY 2008 / 2ND JYAISHTA 1930 Crl.Rev.Pet.No. 474 of 2001() ----------------------------- CRA.322/2000 OF SESSIONS COURT, ERNAKULAM SC.221/1998 OF IIND ADDL. ASST. SESSIONS COURT, ERNAKULAM .................... PETITIONER/ APPELLANT/ ACCUSED: ------------------------------------------------------ GOPALAKRISHNAN, S/O. MADHAVAN, PAREPARAMBIL VEEDU, AMBELIMALA DESOM, MULAMTHURUTHY KARA, MULAMTHURUTHY VILLAGE. BY ADV. SRI.C.P.UDAYABHANU. RESPONDENT/ RESPONDENT/ COMPLAINANT: ------------------------------------------------------------------- STATE, REPRESENTED BY THE C.I. OF POLICE, PIRAVOM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2008, ALONG WITH CRL.A NO. 827/2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. A.K.BASHEER, J. -------------------------------------------------------- Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 ------------------------------------------------------ Dated this the 23rd day of May, 2008 O R D E R Since these two cases arise from the same Judgment passed by the Sessions Court, Ernakulam in Criminal Appeal No.322/2000, they are being disposed of by this order. 2. While the revision petition is at the instance of the accused who has been concurrently found guilty by the trial court as well as Appellate Court under Section 325 IPC, the State has preferred the criminal appeal impugning the order of acquittal of the petitioner under Section 304 IPC. The trial court found the petitioner/accused guilty under Section 325 of IPC and convicted and sentenced him to undergo Rigorous Imprisonment for three years. In Appeal, the sessions court while confirming the order of conviction, modified and reduced the sentence to Rigorous Imprisonment for one year and a fine of Rs.5,000/- and in default to undergo Rigorous Imprisonment for two months. 3. Heard the learned counsel for the petitioner/accused and the learned public prosecutor. 4. The prosecution case in brief was that on November 24, 1997 at Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 2 - about 8.15 PM petitioner/accused had, on account of his previous animosity towards deceased Vijayan, assaulted him on the Mulamthuruthy – Piravom public road in front of the shop of PW6. The prosecution alleged that the accused had attacked deceased Vijayan with an intention to cause his death. The accused slapped the deceased on his cheeks, fisted and pushed him, resultantly deceased Vijayan fell down on the ground. The accused hit and kicked Vijayan on his chest and abdomen while he was lying down on the ground. The deceased succumbed to the injuries sustained by him shortly after the above attack at the hands of the accused. The prosecution had charge sheeted the petitioner for the offences punishable under Sections 325 and 304 IPC. 5. In support of its case, the prosecution examined PWs.1 to 18. Exts.P1 to P14 and Mos.1 to 6 were marked in the case. There was no oral evidence on the side of the defence. But Ext.D1 contradiction was marked. 6. The learned Assistant Sessions Judge after a careful evaluation on the oral and documentary evidence on record found Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 3 - that the petitioner cannot be found guilty under Section 304 IPC, in as much as he had not inflicted any injury on deceased Vijayan with an intention to cause his death. However, the learned Judge took the view that the prosecution had succeeded in proving that the accused had committed the offence punishable under Section 325 IPC. Accordingly, he was convicted and sentenced, as mentioned earlier. In appeal, the learned Sessions Judge concurred with the finding of guilty. But the sentence was reduced to one year's Rigorous Imprisonment with a fine of Rs.5,000/-. 7. The learned counsel for the accused has taken me through the testimonies of the material witnesses namely PW1 and PW6 and also the other witnesses in his attempt to persuade me to interfere with the concurrent finding entered by the courts below. He points out that the courts below were not justified in holding the petitioner guilty on the basis of the totally inconsistent and unreliable testimony of PW1. It is also contended by him that the evidence of PW6 also did not, in any way, improve the prosecution case. I am unable to agree. Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 4 - 8. It is true that the testimony of PW1 did contain a few contradictory or inconsistent statements. But it has to be remembered that she is apparently an illiterate and rustic woman in her mid 40's. She asserted before the court that on the fateful day she had, as usual, gone to the bus stop to join her husband on his way back home after finishing his day's work. She had reached the scene of occurrence at about 7 PM. She wanted to purchase some grocery for the house. Deceased Vijayan came in a transport bus and got down at about 7.25 PM. PW1 took deceased Vijayan to the shop of Karunakaran in order to purchase the provisions. After completing the purchase PW1 and Vijayan came to the bus stop. At that time, the accused came and stood near them. PW1 identified the accused before the Court. The accused asked Vijayan whether he did not go for any work on that day. Vijayan did not respond. The accused asked some more questions apparently attempting to taunt and provoke deceased Vijayan.PW1 stated that deceased Vijayan did not respond or react. PW1 stated that the accused told Vijayan that he had been searching for him all the while. Saying thus he Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 5 - caught hold of the chin of Vijayan and shook it. The accused smeared his spittle on the face of Vijayan. He also hit and pushed Vijayan. At that stage, PW1 told Vijayan that they should move to the other side. Accordingly, PW1 and deceased Vijayan went towards the shop of Thomas nearby. Vijayan went to the shop of Mathai and purchased a cigarette. He lighted it. The accused took away the cigeratte from Vijayan's lips. He told Vijayan that he would not allow him to see the next sun rise. Vijayan lit another cigeratte. That was also taken away by the accused. He told Vijayan that he would be buried in Ambelimala Rubber Estate. When Vijayan went to catch an Auto, accused went behind and caught hold of him. He hit Vijayan on his face and neck. Because of the impact of the hit Vijayan fell down on the ground. The accused kicked Vijayan on his chest and abdomen while he was lying on the ground. PW1 had further stated that the deceased was taken to the hospital in an Auto soon after the incident. But by that time he succumbed to the injuries. 9. As mentioned earlier, there are some minor Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 6 - contradictions in the deposition of PW1, which in my view, are totally inconsequential and insignificant. I do not propose to refer to all of them; but still one such contradiction which should be highlighted is that PW1 had stated before police that the accused tried to smear spittle on the face of the deceased with his mouth. But PW1 had stated before the court that the accused had done so with his fingers. Having carefully gone through the deposition of PW1, I do not find absolutely any reason to disbelieve this rustic woman. She had evidently given a natural and straight forward narration of the incident in which her husband was humiliated and assaulted. 10. PW6 had also corroborated the version given by PW1. He had seen the accused assaulting deceased Vijayan. As rightly noticed by the learned Sessions Judge the evidence of PW2 to PW5, PW7 and PW8 will also undoubtedly show that the accused and the deceased were at the scene of occurrence as alleged and that there was some incident involving both of them. Significantly none of these witnesses (PW2 to PW5, PW7 and PW8) did not have a case that deceased Vijayan was the aggressor nor did they say that the Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 7 - deceased had done any provocative act. 11. Thus, having perused the oral testimonies of the witnesses and also having considered the other material pieces of evidence on record I do not find any reason to interfere with concurrent finding of guilty entered by the courts below. The learned Sessions Judge had, of course, reduced the sentence imposed by the trial court. 12. In the appeal preferred by the state the learned public prosecutor submitted that the petitioner is liable to be found guilty under Section 304 IPC also. I do not find any merit in the above contention. The trial court as well as the appellate court had evaluated the evidence on record meticulously and properly. The evidence did not, in any way, suggest that the accused perpetrated the crime with an intention to cause the death of Vijayan. At the same time, the evidence clearly established that Vijayan had succumbed to the injuries sustained by him as a result of the fall on the ground following the assault made by the accused. It has been already Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 8 - noticed that accused had hit the deceased on his chest and pushed him forcefully. Even after the victim fell down, the accused had hit and kicked on the chest of deceased Vijayan. 13. A perusal of Ext.P13 Post-Mortem Certificate will show that deceased Vijayan had sustained 14 injuries like Abrasions, contusions, etc. on various parts of his body. The certificate further revealed that air passages were congested. They contained blood stained fluid. Lungs were also congested and oedematous. Left lung showed adhesion to the chest wall which clearly indicated the impact of the kick and hit received by the deceased in that area. The Police Surgeon, Forensic Medicine, Medical College, Kottayam who conducted the Post-Mortem, opined that death was due to blunt injuries sustained to the head and neck. Obviously the fall might have caused the fatal injuries. Post-Mortem Certificate, in my view, is the proverbial last straw on the back of the camel. 14. The evidence adduced by the prosecution will Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 9 - undoubtedly show that the accused had attacked the deceased without any provocation. The evidence of PW1 also clearly indicated that the deceased had tried to avoid any confrontation with the accused. But still, the accused had attacked the victim, which unfortunately resulted in his death. Therefore, the order of conviction, in my view, is totally justified. 15. Though the learned counsel for the petitioner has made a very persuasive plea to show indulgence and leniency in the matter of sentence, I am not satisfied that this is a fit case in which such indulgence or leniency is warranted. It may be true that petitioner has wife and two young children to maintain. But the deceased had also his wife and children. Having regard to the entire facts and circumstances, I do not find any reason to reduce the sentence imposed on the petitioner. Revision petition fails and it is accordingly dismissed. 6. For the foregoing reasons and also for the reason that Crl.Rev.Petition No.474 of 2001 and Crl.Appeal No.827 of 2001 - 10 - there is nothing on record to show that the accused had inflicted injuries on the deceased with an intention to cause his death I do not find any merit in the appeal preferred by the State also. Accordingly, this appeal is also dismissed. A.K. BASHEER, JUDGE skr