IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 Crl.Rev.Pet.No. 376 of 2004(B) ------------------------------ C.C.335/00 OF Chief Judicial Magistrate, KOTTAYAM CRA.450/02 OF ADDL.SESSIONS JUDGE, KOTTAYAM REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- CHACKO @ RAJU, S/O.MARKOSE, CHATHANATTU KAROTTU VEEDU, KUNNAMPALLY KARA, PANAICKADU VILLAGE. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR RESPONDENT(S): COMPLAINANT. --------------------------- KERALA STATE REP. BY S.I.OF POLICE, KOTTAYAM EAST, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.376 OF 2004 --------------------------------------------- Dated 3rd August, 2010 O R D E R Petitioner, the accused in C.C.335/2000 on the file of Chief Judicial Magistrate, Kottayam filed this revision challenging his conviction and sentence for the offence under Sections 324 and 326 of Indian Penal Code as confirmed by learned Additional Sessions Judge, Kottayam in Crl.A.450/2002. Prosecution case is that on 25/12/1996 at about 8 p.m PW1 the injured was standing on the side of the road talking with PW2 after consuming toddy from Kollad toddy shop. The petitioner came there in a scooter and using a sword stick he voluntarily caused grievous hurt on PW1 CRRP 376/04 2 and thereby committed offences under Sections 324, 326 and 294(B) of Indian Penal Code. PW1 was taken by his son and PW2 to District Hospital, Kottayam from where he was referred to Medical College Hospital. Doctor at the casuality examined PW1 at 8.55 p.m and prepared Ext.P11 wound certificate. Ext.P1 FI statement of PW1 was recorded by PW6, Head Constable, based on which Ext.P5 FIR was prepared and crime No.426/1997 was registered. After completing the investigation charge was laid for the offences under Sections 324, 326 and 294(b) of Indian Penal Code. It was taken cognizance. Petitioner pleaded not guilty. Prosecution examined eights witnesses and marked eleven exhibits and identified MO.1 sword stick. Learned Magistrate on the evidence found the petitioner guilty of the CRRP 376/04 3 offence under Sections 324 and 326 and found him not guilty for the offence under Section 294(b). Though petitioner challenged conviction before Sessions Court, learned Sessions Judge on re-appreciation of evidence confirmed the conviction. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that courts below relied on the solitary evidence of PW1 and the evidence of PW2, hostile witness in part to enter a conviction and the material contradictions in the evidence of PW1 with regard to his version in Ext.P1 was not properly appreciated and on the evidence courts below were not justified in convicting the petitioner at least he is entitled to the CRRP 376/04 4 benefit of reasonable doubt. Learned Public Prosecutor submitted that both the courts had occasion to note the demanour of PW1 and accepted his evidence finding it trustworthy and solitary evidence of an injured witness is sufficient to enter a conviction and there is no reason to disbelieve the evidence of PW1 as the contradictions are minor and thereby conviction is perfectly legal. 4. True, it is not the law that evidence of an injured witness by itself is not sufficient to enter a conviction, if his evidence is found trustworthy and credible. For the reason that independent eye witness turned hostile, evidence of an injured witnesses cannot be disbelieved, if his evidence is otherwise credible and reliable. Question is whether evidence of PW1 is credible, reliable CRRP 376/04 5 and trustworthy. 5. Ext.P1 FI statement was furnished by PW1. Incident was on 25/12/1996 at about 8 p.m. PW1 was taken to Medical College Hospital, Kottayam at 8.55 p.m and he was examined by the doctor at 8.55 p.m, as born out by Ext.P11 wound certificate. As doctor who prepared Ext.P11 wound certificate was not available, Ext.P11 was proved through PW8 another doctor who identified the signature of the doctor who prepared Ext.P11 wound certificate. Ext.P11 shows that alleged cause of injury was narrated by Pramesh. Evidence of PW1 and Ext.P1 FI statement shows that said Pramesh, is none other than the son of PW1. Ext.P1 FI statement was recorded on the next day at 5 p.m. Therefore, PW1 had sufficient time to deliberate and furnish all the details of the CRRP 376/04 6 incident to PW6 the Head Constable, who recorded FI statement. Version of PW1 in Ext.P1 FI statement was that being Christmas day he decided to consume some toddy and went to Kollad toddy shop. Then he consumed one bottle of toddy. He got out of toddy shop he saw PW2 who was the cleaner of the lorry previously owned by PW1. While PW1 was talking with PW2, petitioner along with his son came there in a scooter. Scooter rider stopped the scooter. The petitioner his son and the rider of the scooter got down. Petitioner scolded PW1 using obscene words. Petitioner then with MO.1 sword stick inflicted injury on PW1. PW1 fell down. He was taken to the hospital by PW2 and his son Pramesh. According to the version of PW1 in Ext.P1 FI statement, he was an accused in a murder case and petitioner used to insult him CRRP 376/04 7 calling him a murderer which was disliked by PW1. On that day petitioner had called him murderer from the place near to his house and petitioner warned him not to call him again threatening that if he calls it again, consequences will be grave. What is stated in Ext.P1 FI statement is that because of that enmity, petitioner inflicted the injury on PW1. When PW1 was examined, the case is entirely different. As per his version from the box, he did not even reach the toddy shop. On the way to the toddy shop he found PW2. While he was talking with PW2, petitioner came from behind and inflicted injury on him with a sword stick and PW1 fell down unconscious and taken to the hospital. According to his version in cross examination, petitioner asked him whether he will change political party and then inflicted CRRP 376/04 8 the injury. According to PW1 he was originally a member of Congress party and later become a member of CPI (Marxist) party and it is for that reason petitioner attacked him. If the evidence of PW1 from the box is to be believed, petitioner attacked him asking whether he will change the political party. If that is true, PW1 would have definitely stated about it in Ext.P1 FI statement and would not have stated that petitioner attacked him as PW1 had cautioned the petitioner not to call him a murderer again. If the incident occurred after consuming toddy and getting out of the toddy shop, as stated in Ext.P1, in Ext.P1 FI statement he would not have stated that incident occurred when PW1 consumed toddy and when came out of the toddy shop found PW2 and then the incident occurred. When this material CRRP 376/04 9 discrepancy in the evidence is appreciated in the proper perspective, the non examination of Pramesh, who is the eye witness even as per Ext.P1 FI statement is fatal. PW2 had turned hostile to the prosecution PW2 deposed before the court that while he was talking with PW1 on the side of the road, somebody inflicted injury on PW1 and he did not identify the petitioner as the assailant. Though PW2 was cross examined and the statement recorded under Section 161 of Code of Criminal Procedure was confronted, said statement can only be used as provided under Section 162 of Code of Criminal Procedure and cannot be used as substantive evidence. At best, it could said that PW2 had no regard for truth and his evidence is not credible or trustworthy. But it is not possible to use his statement recorded under Section 161 CRRP 376/04 10 of Code of Criminal Procedure, as substantive evidence. Evidence of PW3 was not relied on by the courts below as he turned hostile. In the light of the evidence, it cannot be said that prosecution has successfully established that it was the petitioner who voluntarily caused grievous hurt and hurt to PW1. 6. True, Ext.P11 wound certificate and Ext.P3 discharge certificate establish that PW1 sustained hurt and grievous hurt as alleged by the prosecution. But when the evidence of PW1 is not credible and trustworthy due to the material contradictions stated earlier, it is unsafe to rely on his evidence without corroboration. When the eye witness Peamesh who is son of the petitioner was not examined and Pws.2 and 3 the other eye witnesses did not support the prosecution case and there is no CRRP 376/04 11 other evidence to connect petitioner with the offence, conviction of the petitioner cannot be sustained. Revision is allowed. Conviction of the petitioner in C.C.335/2000 by Chief Judicial Magistrate, Kottayam as confirmed by Additional Sessions Judge in Crl.A.450/2002 is set aside. Petitioner is found not guilty of the offence under Sections 324 and 326 of Indian Penal Code. He is acquitted. M.SASIDHARAN NAMBIAR, JUDGE. uj.