Alikoya S/o Beerankooya and Manoj S/o Narayanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **Crl.Rev.Pet.No.3260 OF 2004(B)** **CRA 294/2001 OF II ADDITIONAL SESSIONS COURT, KOZHIKODE** **CC 317/1996 OF CHIEF JUDICIAL MAGISTRATE ,KOZHIKODE** ## **REVISION PETITIONERS/APPELLANT/ACCUSED** - **1 ALIKOYA S/O BEERANKOYA KORA HOUSE, HOUSE NO.21/114,, PANNIYANKARA AMSOM, P.O.KALLAI,, KOZHIKODE.** - **2 MANOJ SO.NARAYANAN CHOLAYIL THAZHAM THARAMMAL,, HOUSE NO. 34/656, NADUVATTOOR AMSOM, DESOM.** **BY ADV. SRI.P.V.ANOOP** ## **RESPONDENT/RESPONDENT/COMPLAINANT** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **OTHER PRESENT:** ## **SR.PP - SRI. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-06-2020, THE COURT ON 22-06-2020 PASSED THE FOLLOWING:** Crl.R.P.3260/2004 2 ## **ORDER** ## **Dated : 22[nd] June, 2020** 1. This revision petition has been filed against the concurrent finding of guilt, conviction and sentence passed against the revision petitioners/accused 2 and 3. 2. The prosecution case in short is as follows : On 3.3.1996 at about 12.30 mid night at Thiruvannur Kottaram road margin, Panniankara the accused committed the offence punishable under Secs 323 and 326 IPC read with 34 IPC. The case was registered as per the FIS given by PW2, the victim at the hospital. PW6, the head constable, attached to Panniankara police station recorded the FIS on 7.3.1996 at Medical college hospital and produced the same at the police station and on the basis of the same, PW5 another head constable registered crime No.34/1996 originally under Secs 323 and 324 read Crl.R.P.3260/2004 3 with Sec.34 IPC. FIR is marked as Ext.P4. Thereafter PW8 another Head constable attached to Panniankara police station conducted the investigation, questioned the witnesses, prepared Ext.P3 scene mahazar and seized MO1 by describing in the scene mahazar and conducted the initial investigation. Thereafter PW7 who was the sub inspector of police attached to Panniankara police station continued the investigation of PW8 and filed Ext.P5 report altering the charge adding Sec.326 IPC and filed Ext.P5 report stating the name and address of the accused and he also arrested accused 2 and 3, the revision petitioners herein. Thereafter he filed the charge-sheet. 3. On the side of prosecution PW1 to 8 were examined. Exts.P1 to P5 were marked and MO1 was identified and marked. After closure of prosecution evidence, all the accused were questioned under Sec.313 Cr.P.C. They Crl.R.P.3260/2004 4 denied all the incriminating facts and circumstances put to them. DW1 examined and Exts.D1 and D2 were marked on the side of defence. Thereafter on hearing both sides the trial court found all the accused guilty under the sections aforementioned. The revision petitioners were sentenced to undergo rigorous imprisonment for a period of three months each and to pay fine of Rs.750/- each, in default to undergo simple imprisonment for two weeks under Sec.323 read with 34 IPC and accused 1 to 3 were sentenced to undergo rigorous imprisonment for one year each and to pay fine of Rs.2000/- each in default to undergo simple imprisonment for two months each under Sec.326 read with 34 IPC. Set off was also allowed under Sec.428 Cr.P.C. Out of the fine amount Rs.2500/- was directed to be paid to PW2 towards compensation under Sec.357(1) Cr.P.C. Against the conviction and sentence Crl.R.P.3260/2004 5 passed by the Chief Judicial Magistrate, Kozhikode, separate appeals were filed by the revision petitioners and the first accused, as Crl.Appeal Nos 294/2001 and 297/2001 respectively. As per the judgment dated 18.8.2004, the learned second Additional Sessions Judge, Kozhikode, dismissed the Appeal filed by the first accused and the Appeal filed by the revision petitioners was allowed partly setting aside the sentence under Sec.323 IPC and the conviction and sentence under Sec.326 IPC had been confirmed. Against the common judgment passed, the revision petitioners alone came up in revision. On enquiry from the office it has been reported that no appeal has been filed against the judgment in Crl.Appeal 297/2001,filed by the first accused. 4. Notice was issued to the respondent and the learned public prosecutor appeared on behalf of the respondent. Crl.R.P.3260/2004 6 Lower court records were called for and perused. Both sides were heard. 5. The learned counsel for the revision petitioners assailed the conviction and sentence on various grounds. According to him, PW2 the victim alone has supported the prosecution case and PW1 who is none other than the brother of PW2 turned hostile and was cross-examined by the Assistant public prosecutor. He would also contend that though DW1 was examined and Exts.D1 and D2, the attested copies of wound certificates pertaining to the revision petitioners were marked, both the courts below failed to consider the aspect of non explanation of the injury sustained by the revision petitioners by the prosecution which, according to him, is a material flaw which goes to the root of the prosecution case. It is also his contention that the place of occurrence has been Crl.R.P.3260/2004 7 changed by the prosecution and inconsistent evidence has been brought in by the prosecution with regard to the place of occurrence and without considering any of the above aspects, the trial court and also the appellate court convicted and sentenced the revision petitioners. 6. It is true that PW2 the victim and PW1, his brother, alone have been examined to prove the occurrence. But as has been rightly pointed out by the courts below, the incident occurred admittedly at about 12.30 mid night. So there is no possibility of anybody present on the road at that odd hours to witness the incident. PW1 the brother of PW2, though declared as hostile, certain aspects brought out during his evidence are in corroboration with the evidence of PW2. He would depose that the incident occurred at 12.30 mid night on 3.3.1996. The first accused came and asked Rs.2000/- from him and the second and third Crl.R.P.3260/2004 8 accused were present with the first accused and first accused tried to snatch the money from his pocket and he ran away. He also admitted that himself and brother (PW2) are residing together. He further deposed that he had seen PW2 lying on the road and accused beating him and there were injuries on his head, finger and below the knee and nobody else was present there. He took the brother to the hospital. He further stated that he had not seen the attack of the accused and he has not stated of witnessing the incident of beating his brother with iron rod. At that time, prosecution seems to have declared him as hostile and cross-examined. 7. PW2 is the victim. He also deposed that on 3.3.1996 at about 12 mid night while he was doing the watchman duty at the house of Ashraf, first accused, came and asked about PW1. When he stated that PW1 was not there, he Crl.R.P.3260/2004 9 was asked to come out and he was taken to the junction. Accused Nos.2 and 3 were present there and they also asked about his brother, PW1. When he stated that he does not know , he was beaten with iron rod on his left leg, at the forehead and at the lower jaw. Accused 2 and 3 beat him with hand and there upon PW1 came and accused ran away and he was taken to medical college hospital. 8. On an evaluation of the evidence of PW2, it could be seen that the evidence of PW1, his brother cannot be completely discarded, though he has been cross-examined by the prosecution. It is the specific evidence tendered by PW2 the victim that only when he alarmed, PW1 his brother came and hence there is no possibility of PW1 seeing the attack of PW2 by the accused. His evidence that there were injuries on the head, finger and below the knee of PW2 is in corroboration with the version given by PW2. He Crl.R.P.3260/2004 10 also stated that he had not seen anybody there. So his evidence initially that he had seen the accused beating PW2 may not be correct. But the fact that he has taken PW2 the victim to the hospital is not seen disputed and that fact is corroborated by the evidence of PW2. 9. The evidence of the doctor who has been examined as PW3 also would corroborate the prosecution case regarding the injury sustained by PW2. PW3 the doctor would depose that he examined one John aged 42 years at 6.30 am on 4.3.1996 and he noted the following injuries : 1. 6 x 1 cm lacerated wound on the forehead bone deep. ## 2. Evidence for fracture left mandible 3. 1 cm long transverse lacerated wound on an leniar aspect of left leg. ## 4. Fracture both bones left leg. 5. .5 x .5 cm lacerated wound on.....(not clear) Crl.R.P.3260/2004 11 aspect of middle finger with fracture of middle phalanx. 10. The alleged cause stated is beating with iron stick and the doctor also deposed that he was admitted in the ward and PW3 stated that injuries could be caused as alleged. The wound certificate is marked as Ext.P2. The doctor also stated that injury Nos.2, 4 and 5 are grievous injuries, that is fracture to left mandible, fracture to both bones of left leg and .5 x .5 cm lacerated wound on middle finger with fracture of middle phalanx. 11. On evaluating the evidence of PW3 the doctor, PW2 the victim and the admissible portion of evidence of PW1 his brother, it could be seen that there is consistent evidence with regard to the grievous injury sustained by PW2 at the instance of the first accused along with accused Nos. 2 and 3, revision petitioners herein. The Crl.R.P.3260/2004 12 allegation against the revision petitioners is that they beat him with hand. 12. The main contention of the learned counsel for the revision petitioners/accused is with regard to the evidence of DW1 the doctor and Exts.D1 and D2, the copies of the wound certificates pertaining to the revision petitioners. He would contend that the evidence of DW1 and Exts.D1 and D2 would prove that on the same day the revision petitioners have been examined at Government general hospital, Kozhikode with the alleged history of assault by PW1. DW1 would depose that he examined one Manoj, (second revision petitioner) with the alleged history of assault at 12 mid night on 3.3.1996 at Kallai by one Abel (PW1). The injuries noted in Ext.D1 are the following : 1. Lacerated wound on left eye brow 1 x ½ x ½ cm. Crl.R.P.3260/2004 13 2. Lacerated would on right parietal scalp 3 cm x ½ cm x ½ cm. 13. He also examined the first revision petitioner on the same day with the alleged history of assault by Abel (PW1) and the injury noted is : Lacerated injury over occipital scalp on the left side. Size 2 cm x ½ cm x ¼ cm. 14. He also identified the patients whom he examined as revision petitioners 2 and 1 respectively. So the fact that on the same day at about 12 mid night revision petitioners sustained injury is seen proved through the evidence of DW1 and Exts.D1 and D2. But according to the learned public prosecutor, the injuries noted in Exts.D1 and D2 are trivial and further that it would prove the presence of the revision petitioners at the place of incident. Though the learned counsel for the revision petitioners would contend that the non explanation of the injuries sustained by Crl.R.P.3260/2004 14 accused persons from the side of prosecution is fatal and hence benefit of doubt in that regard has to be given to the revision petitioners, it is to be noted that DW1 the doctor categorically stated during cross-examination that the injuries noted are minor and superficial injuries. The injuries sustained by the victim, PW2, had been narrated in the previous paragraph and on a mere glance through the medical evidence would reveal that very grievous injuries has been sustained to him including three fractures. In this context it is relevant to quote **Thoti Manohar v. State of Andhra Pradesh (2012 KHC 4500).** In the said decision the consequence of failure to explain the injuries sustained by the accused has been dealt with and it has been stated that if the injuries are superficial and accused are not send for medical examination and when there is no suggestion as regard the injuries sustained to any of the witnesses, Crl.R.P.3260/2004 15 the non explanation of injuries is not fatal . It is true that in this case the DW1 doctor had been examined and Extd.D1 and D2 wound certificates have been proved through him but since the injuries are of trivial in nature, non explanation of the same by the prosecution cannot be said as fatal to the prosecution. It is also relevant to quote **Sri Ram v. State of M.P. (2004 (9) SCC 292 )** wherein in a case of right of private defence the impact of injury sustained on the accused has been dealt with and it has been held that it cannot be stated as a universal rule that whenever injuries are on the body of the accused persons a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. It is also held that the defence has to further establish that the injuries are suffered in the same occurrence and that injuries on the accused probabilize Crl.R.P.3260/2004 16 the version of right of private defence. It is further held that non explanation of injuries sustained by the accused at the time of occurrence or in the course of altercation is a very - important circumstance but non explanation of the injuries by the prosecution may not affect the prosecution case in all cases. It is further held that this principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, probable, consistent and credit worthy and it far outweighs to the effect of the omission on the part of the prosecution to explain the injuries. It is also relevant to quote **State of Gujarat v. Bai fathima and Another AIR 1975 SC 1478).** In that case also while dealing with the aspect of nonexplanation of injuries sustained by the accused and when the injuries were of minor character, it has been held that Crl.R.P.3260/2004 17 in a situation when prosecution fails to explain the injuries on the person of an accused depending on the facts of each case any of the three results may follow : (1) that the accused had inflicted the injuries on the members of the prosecution partly in exercise of the right of self defence (2) it makes the prosecution version of the occurrece doubtful and charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) it does not affect the prosecution case at all . 15. So in the fact situation of the present case, it is true that the prosecution did not make any attempt to produce Ext.D1 and D2 and the doctor who examined accused Nos.2 and 3 were also not cited as a witness. But in this case as I have already discussed, the injures sustained by the accused and that has been proved through the evidence of DW1 and Exts.D1 and D2. The evidence of Crl.R.P.3260/2004 18 doctor as DW1 convincingly proved that the injury sustained by accused are of superficial in nature. Hence as has been held in the above cited decision, it does not affect the prosecution case at all. On the other hand, the injuries sustained by the revision petitioners would prove their presence at the place of occurrence during that mid night. It is to be remembered in this context that PW2 , the victim has been brutally attacked with MO1 iron stick inflicting grievous injuries by the first accused just for the reason that he could not point out his brother PW1. The revision petitioners were actively aiding the first accused in doing the act. They also beaten him with hand. So the minor injuries sustained by the revision petitioners cannot be taken as a ground to claim any benefit of doubt on the ground of non explanation of the injuries sustained by them. Crl.R.P.3260/2004 19 16. The next contention of the learned counsel for the revision petitioners is that the place of occurrence has been changed and that also creates doubt about the prosecution case. But it has come out in evidence that PW2 the victim is from Tamil Nadu and he came in this area prior to two months of the incident. The prosecution case is that the incident occurred on the road margin situated on the north west side of Neelachira road junction which is a junction where two roads join. According to the learned counsel, PW2 during chief-examination stated that he was taken to the junction by the first accused and accused Nos 2 and 3 were present there and asked about his brother. Thereafter he was attacked. During crossexamination he stated that it is correct to state that he has been attacked in front of the house of Moosa and he also denied that he had been asked to come to the junction. He Crl.R.P.3260/2004 20 also denied the statement given in chief-examination to that effect. He stated that he was not attacked at the junction. But in this context it is very relevant to note that PW2 as stated earlier, is a person from Tamil Nadu and he was examined through an interpreter. So the exact location of the place of incident may not be able to be revealed by him at the time of his examination which was after about four years of the incident. So the contention with regard to the change of place of occurrence cannot be taken as a material contradiction or embellishment in the prosecution case as contented by the learned counsel. 17. The learned counsel for the accused also pointed out discrepancies in the case that in the FIS, there is a statement that there were three persons at the junction when he was taken there by the first accused. It is also stated in the FIS that PW1 is his elder brother. But during Crl.R.P.3260/2004 21 his evidence he categorically stated that PW1 is his younger brother and that discrepancy also might have occurred due to language problem. During crossexamination also he stick to the stand that he has not stated that apart from first accused three persons were there. Probably the third person might not have been involved in the attack or he might not have been identified. That will not in any way create any doubt with regard to the prosecution case because the evidence of PW1 and Exts.D1 and D2 proved in abundance the presence of the revision petitioners and there is no document proving any injury to any third person is forthcoming. So that also would reveal that the revision petitioners were actually present with the first accused and the act had been taken place in furtherance of their common intention. 18. So on a close scrutiny of the facts and circumstances Crl.R.P.3260/2004 22 and the evidence adduced from both sides, I am of the considered view that there is no illegality and impropriety in the concurrent findings of fact by the courts below warranting interference at the instance of this Court. Hence the conviction passed against the revision petitioners under Sec.326 read with 34 IPC by the courts below is confirmed. 19. The learned counsel for the revision petitioners seeks maximum leniency with regard to the sentence. According to him, the evidence of DW1 and Exts.D1 and D2 documents would prove that the revision petitioners also sustained injuries and immediately after the incident, they have been treated at the Government general hospital, Kozhikode and he would also contend that the overt act of striking with iron rod is attributed only against the first accused and the allegation against the revision petitioners Crl.R.P.3260/2004 23 is only beating with hand. The incident also had taken place long back in the year 1996. 20. So taking into account all the above aspects, I find it appropriate to modify the sentence to that of simple imprisonment for six months each and to pay fine of Rs.2000/- each, in default to undergo further imprisonment for three months each under Sec.326 read with 34 IPC. 21. In the result, revision petition allowed in part modifying the sentence to that of simple imprisonment for six months each and to pay fine of Rs.2000/- each, in default to undergo further imprisonment for three months each under Sec.326 read with 34 IPC. Set off is allowed. Fine amount of Rs.4000/- if realised, shall be given to PW2 towards compensation under Sec. 357(1)(b) Cr.P.C Crl.R.P.3260/2004 24 towards the injuries sustained by him. Sd/- **M.R.ANITHA Judge** Mrcs/12.6.