Asokan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934** ## **Crl.Rev.Pet.No. 1814 of 2005 (B)** **-------------------------------CRA.248/2002 of SESSIONS COURT,TRIVANDRUM CC.1028/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT,VARKALA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **---------------------------------------------------------------------** **ASOKAN, S/O.APPU, VAVARA VEEDU, NEAR CHAPPATHU MUKKU, THOTTAKKADU DESOM KARAVARAM VILLAGE, CHIRAYINKEEZHU TALUK THIRUVANANTHAPURAM.** **BY ADV. SRI.D.KISHORE** **RESPONDENT(S)/COMPLAINANT.:** **------------------------------------------------** **STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.1814 of 2005** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of September, 2012** ## **O R D E R** The accused in C.C. No.1028/1998 before the Judicial First Class Magistrate's Court, Varkala and the appellant in Criminal Appeal No.248/2002 before the Sessions Judge, Thiruvananthapuram against the judgment of the Magistrate, is the petitioner in this criminal revision petition. The prosecution was under Sections 447 & 324 of the Indian Penal Code. The allegation was that the accused trespassed into the house of PWs 1 & 2 with the intention to assault them and assaulted them using a rod causing injuries to PWs 1 & 2. The Magistrate convicted the petitioner and directed the petitioner to undergo simple imprisonment for one year under Section 324 IPC and simple imprisonment for 3 months under Section 447 of IPC. The Sessions Court confirmed the conviction but the sentence of simple imprisonment for one year under Section 324 I.P.C. was reduced to one of simple imprisonment for Crl. Rev. Petition No.1814 of 2005 **-2-** six months without interfering with the punishment under Section 447 of I.P.C. Those judgments are under challenge in this Crl.R.P. 2. The petitioner is challenging the judgments of the lower courts on four grounds. The first is that, the prosecution has not properly proved the recovery of MO1, which was allegedly used for inflicting the injuries on PWs 1 & 2. According to him, no mahazar was prepared for recovery of the said MO. Secondly he would submit that the Investigating Officer who is stated to have recovered the said MO has not been examined. Thirdly, he would submit that there is no independent witness to the incident and fourthly, he would contend that the contradictions and discrepancies in the evidence of PWs 1 & 2, who are the injured in the alleged occurrence are sufficient to hold that the prosecution has not been proved the guilt of the accused beyond a reasonable doubt. Therefore counsel for the petitioner argues for an acquittal on those grounds. 3. The learned Public Prosecutor would vehemently oppose the contentions of the petitioner. According to her, Crl. Rev. Petition No.1814 of 2005 **-3-** MO1 was recovered from the scene of occurrence and the same has been proved through the Head Constable, who was assisting the Investigating Officer. According to the learned Public Prosecutor, non-examination of the Investigating Officer will not affect the prosecution case in any manner, insofar as the evidence of PWs 1 & 2 are sufficient to bring home the guilt of the petitioner beyond any reasonable doubt. It is further submitted that even assuming that there are some discrepancies in the evidence of PW1 and PW2, in view of the decision of the Hon'ble Supreme Court in **Bhajan Singh v. State of Haryana [2011 (3) KLT SN 59 (Case No.57) SC]** , evidence of injured witness should be relied upon unless there are grounds for rejection of the evidence on the basis of major contradictions and discrepancies. According to the learned Public Prosecutor there are no major contradictions and discrepancies which would discredit the evidence of PWs 1 & 2. Therefore, the learned Public Prosecutor would argue to sustain the judgments of the courts below. 4. I have considered the rival contentions in detail. Crl. Rev. Petition No.1814 of 2005 **-4-** 5. On consideration of the evidence adduced and the circumstances brought out by the accused, I am inclined to accept the contentions of the petitioner. As rightly pointed out by the accused, the recovery of MO1, which is the alleged weapon used to assault PWs 1 & 2 have not been proved at all with any acceptable evidence. Even if the nonexamination of the Investigating Officer is not fatal to the prosecution case, which itself depends on the evidence to be adduced to prove the guilt of the accused, if the examination of the Investigating Officer is necessary to prove any vital aspect of the prosecution case, then nonexamination of the Investigating Officer is fatal to the prosecution case. Here, as I have already stated the proof of recovery of MO1 is very essential for the successful prosecution of the accused in this case. There is no evidence whatsoever adduced by the prosecution as to from where the MO1, allegedly used for inflicting the injuries on the injured witnesses, was recovered. If at all anybody could prove the recovery of MO1, that was only the Investigating Officer, who is stated to have recovered the Crl. Rev. Petition No.1814 of 2005 **-5-** same. The Head Constable who was examined by the prosecution in this case did not have any direct knowledge as to when and from where MO1 was recovered. Of course, the lower courts would take the stand that the prosecution has made their best efforts to examine the Investigating Officer, but since despite several summons he did not appear for giving evidence he was given up. In this connection, the decisions of this Court in **State of Kerala v. Retnakaran [2001 (1) KLT 144]** and **Tarsem Singh v. State of Haryana [2008 KHC 5422]** are very relevant. A Division Bench of this Court has specifically held that, if the Investigating Officer does not turn up to give evidence on receipt of summons it was for the court to initiate coercive proceedings to make his presence in court, especially where the examination of the Investigating Officer was crucial for a successful prosecution. As I have already stated, in the absence of proper evidence regarding recovery of MO1, the examination of the Investigating Officer was crucial for the prosecution case. When the Investigating Officer was not examined to prove the same, Crl. Rev. Petition No.1814 of 2005 **-6-** that would certainly affect the prosecution case adversely. Admittedly, no independent witnesses have been examined in this case to prove the guilt of the petitioner. The injured themselves were the witnesses who spoke about the occurrence. The evidence given by PWs 1 & 2 are contradictory in very crucial particulars. Firstly, PW1 gave evidence to the affect that the accused assaulted the petitioner inside the veranda of the house, which was covered and after the injury he was lying in the floor of the veranda. But PW2, the wife of PW1 stated that the PW1 was standing in the courtyard of the house when the accused attacked PW1. PW2 says that the accused attacked the PW1. But she admits that she was not at the scene of occurrence when the accused is alleged to have attacked PW1. She admits that she came to the scene on hearing the cries of the PW1 after the attack. As such, it is anybody's guess as to how without actually seeing the incident the PW2 could state on oath that the accused attacked the PW1. There is also considerable confusion as between PWs 1 & 2 regarding the motive for the assault by the accused. PW1 Crl. Rev. Petition No.1814 of 2005 **-7-** in his evidence categorically admitted that till the date of the incident, there was no enmity between the accused and PWs 1 & 2. On the other hand PW2 would say that the enmity started one week after the marriage of the daughter of PWs 1 & 2. In this connection it must be noted that the accused has a case that PWs 1 and 2 have falsely foisted the case on the accused since the accused demanded taxi charges paid by him for the marriage of the daughter of PWs 1 and 2. So also, PW1 would say that he went to the hospital after going to the police station and giving a complaint. But PW3, who is the Head Constable, who has recorded the statement of the PW1 would categorically say that he recorded the statement at the hospital and PW1 never came to the police station. I am of opinion that these contradictions and discrepancies are very crucial to the prosecution case. Therefore, it is a fit case where the benefit of doubt should be given to the accused. In the above circumstances, the judgments of the lower courts are set aside. The petitioner is acquitted of the offences charged against him in Crl. Rev. Petition No.1814 of 2005 **-8-** C.C. No.1028/1998 of the Judicial First Class Magistrate's Court, Varkala giving him the benefit of doubt. His bail bond is cancelled. This Criminal Revision Petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/