Balan, Santhosh, Manoj and Jayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **CRL.REVISION PETITION NO. 136 OF 2020** **AGAINST THE JUDGMENT DATED 25.11.2019 IN CRA NO.173 OF 2017 OF THE II ADDITIONAL SESSIONS COURT,PALAKKAD ARISING OUT OF THE ORDER DATED 23.06.2017 IN CC NO.724 OF 2011 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, PALAKKAD** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** - **1 BALAN AGED 55 YEARS** - **S/O. MAYANDI, PANTHAKKAMEDU VEEDU, THENKURUSSI, ALATHUR TALUK, PALAKKAD.** - **2 SANTHOSH, AGED 45 YEARS,** - **S/O. KANDAMUTHAN, SANTHOSH NIVAS, PANTHAKKAMEDU VEEDU, THENKURUSSI, ALATHUR TALUK, PALAKKAD.** - **3 MANOJ, AGED 33 YEARS,** - **S/O.ARUMUGHAN,PANTHAKKAMEDU VEEDU, THENKURUSSI, ALATHUR TALUK, PALAKKAD.** ## **4 JAYAKUMAR, AGED 30 YEARS,** - **S/O.KORAN, PANTHAKKAMEDU VEEDU, THENKURUSSI, ALATHUR TALUK, PALAKKAD.** **BY ADVS. SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.JOPHY POTHEN KANDANKARY** 2 Crl.Revision Petition No.136 of 2020 ## **RESPONDENT/RESPONDENT/STATE:** **STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 22.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Crl.Revision Petition No.136 of 2020 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Revision Petition No.136 of 2020** **----------------------------------------------------------Dated this the 22[nd] day of July, 2024** ## **O R D E R** The petitioners are accused Nos.1 to 4 in C.C.No.724 of 2011 on the files of the Judicial Magistrate of the First Class-I, Palakkad. They were convicted and sentenced for the offences punishable under Sections 323, 324 and 341 read with Section 34 of the Indian Penal Code, 1860 (IPC) and sentenced. They appealed. The appeal was dismissed. Hence, they filed this revision petition invoking the provisions of Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Certified copy of the depositions of the witnesses and trial court records are made available for my perusal by the learned counsel for the petitioners. 3. PW1 is the de facto complainant. His children are PW4 and PW10. The petitioners are their neighbours. The 4 Crl.Revision Petition No.136 of 2020 incident had occurred between 3.00 and 3.30 p.m. on 14.08.2011. PW1 along with PW4 went to their property to pluck coconuts. At that time, the accused abused them. Hearing that, PW10 also reached there. There were disputes between them in relation to widening of a pathway. The altercation turned out to be a scuffle. The accused initially attacked PW4. PW1 intervened and then the accused beat him using a stone and a stick. The 1[st] accused beat at his abdomen also. PWs.4 and 10 were beaten up and were pushed down in the nearby canal. PWs.1, 4 and 10 thereby sustained injuries. The mother-in-law of PW1, who was an aged lady, came to the spot and she was also beaten up by the accused. 4. With the aforesaid allegations, the prosecution was initiated. A charge for the offence punishable under Sections 341, 323, 324 and 427 read with Section 34 of the IPC was framed. During trial, PWs.1 to 13 were examined and Exts.P1 to P19 were marked. MOs.1 to 3 were identified as well. 5 Crl.Revision Petition No.136 of 2020 5. The defence set up by the petitioners was that they belonged to a Scheduled Caste and they were attacked by PWs.1 and 2. With a view to circumvent the prosecution in relation to that, which was pending as C.C.No.1136 of 2012, this case was foisted. A statement to that effect was submitted by the 4[th] petitioner. No defence evidence was, however, produced. 6. The trial court believed the evidence of PWs.1, 4 and 10. The medical evidence tendered through PW9 and Exts.P6 to P9, besides the corresponding discharge certificates, were also placed on reliance by the trial court to conclude that the petitioners have committed the offences punishable under Sections 341, 323 and 324 read with Section 34 of the IPC. There was an allegation that after PWs.1, 4 and 10 went to the hospital following the attack, the petitioners destroyed the fence separating their property with that of PW1 and pelted stones at the house of PW1. That resulted in destruction of window panes of that house, causing a loss of Rs.4,000/-. The evidence tendered by the 6 Crl.Revision Petition No.136 of 2020 prosecution in that regard was not believed by the trial court. Therefore, the petitioners were found not guilty of the offence under Section 427 of the IPC. The trial court, however, found the petitioners guilty based on the evidence adverted to above for the offences under Sections 323, 324 and 341 read with Section 34 of the IPC. 7. Before the appellate court, the findings relating to the conviction of the petitioners were strenuously assailed. The contentions urged before the appellate court were not accepted. The appellate court observed that there exists enmity between the parties and no independent evidence was available. By so alerting itself, the appellate court analysed the evidence meticulously and found that there was no reason to reverse the findings of the trial court. 8. The learned counsel for the petitioners would submit that there was a counter-case and the parties were in loggerheads for quite a long. The conviction of the petitioners based on the oral testimonies of the injured alone is therefore incorrect. It is pointed out that the injuries noticed by the 7 Crl.Revision Petition No.136 of 2020 Doctor on the body of PWs.1, 4 and 10 did not correspond to the allegations levelled against the petitioners. The fact that a scuffle occurred between the parties is quite evident from the evidence tendered by PWs.1, 4 and 10, and therefore, the findings of the court below that the petitioners used weapons to voluntarily attack and inflict injuries to PWs.1, 4 and 10 cannot be correct. The further submission of the learned counsel for the petitioners is that none of the witnesses deposed meticulously about the overtacts concerning attack using weapons. The witnesses testified regarding attack using weapons, but the same are vague like hit using stone and beat using stick, but without explaining which accused attacked which victim using such weapons. It is further contended that MOs.1 and 2 were seized as per Ext.P14 scene mahazar, but there is nothing in evidence to show that the recovery was as identified the objects by any of the witnesses. Therefore, the evidence is totally lacking to connect MOs.1 and 2 to the incident. 8 Crl.Revision Petition No.136 of 2020 9. The learned Public Prosecutor, on the other hand, would submit that the courts below concurrently found that the petitioners attacked PWs.1, 4 and 10 using dangerous weapons like stone and stick and this Court, in revision, is not expected to interfere with the said finding. The medical evidence corroborates the version of PWs.1, 4 and 10 that they were attacked using weapons and even in the absence of proper evidence regarding recovery, their evidence can be trusted. The decision of the Apex Court in **State through the Inspector of Police v. Laly @ Manikandan [AIR 2022 SC 5034]** has been relied on to buttress that submissions. It was held in that decision that recovery of the weapon used in the commission of the offence is not a _sine qua non_ to convict the accused. If there is direct evidence in the form of eye witnesses, even in the absence of recovery of weapon, the accused can be convicted. 10. If it is possible to say from the nature of the injuries and in the light of the evidence that the injury was resulted using a weapon, which by the description is 9 Crl.Revision Petition No.136 of 2020 dangerous, recovery and production before the court the weapon of offence is not essential to render a conviction for an offence under Section 324 of the IPC. Therefore, the inconsistency in the recovery of MOs.1 and 2 may not be very much relevant while deciding the culpability of the petitioners concerning the offence under Section 324 of the IPC. But the question has to be decided with reference to the evidence tendered by PWs.1, 4 and 10 and the attending circumstances. 11. Immediately after the incident, PWs.1, 4 and 10 and Smt.Thankamma were taken to the hospital. Exts.P6 to P9 are the respective accident register-cum-wound certificate. The corresponding discharge certificates were also produced. PW1 had sustained (i) contusion 1x1 cm over right side abdomen and (ii) four teeth mark on abdomen along side of the above. PW4 had (i) contusion 1x1 cm over the abdomen (ii) abrasion 0.5x0.5 cm over right cheek and (iii) contusion 1x1 cm over the scalp. PW10 had sustained (i) abrasion 0.5x0.5 cm over left forearm and abrasion 0.5x0.5 cm on the 10 Crl.Revision Petition No.136 of 2020 right big toe. The alleged cause stated to the Doctor is similar; that five known persons trespassed into their house and beat them up at about 3.30 p.m. on 14.08.2011. Immediately, a statement of PW1 was recorded and the crime was registered. From the said evidence, it can certainly be held that there occurred an incident where PWs.1, 4 and 10 sustained injuries at the hands of the petitioners. Regarding the motive, there cannot be any doubt. Even the petitioners have a case that they were in inimical terms with PW1 and members of his family. So, the findings of the courts below that the petitioners voluntarily attacked PWs.1, 4 and 10 and inflicted them injuries cannot be found fault with. 12. What are the offences constituted by the acts of the petitioners is a matter for further deliberation. According to the learned counsel for the petitioners, no offence under Sections 324 and 341 of the IPC are proved by the evidence tendered by the prosecution. Although it was contended that C.C.No.1136 of 2012 was a counter-case, no evidence to prove that fact has been adduced by the petitioners. It is true 11 Crl.Revision Petition No.136 of 2020 that PW1 admitted pendency of such a case against them. Whether that case also relates to the incident in question is not in evidence. 13. Be that as it may, there is such a case with the allegation that the petitioners were manhandled by PWs.1 and 2. Also, it is evident that there were existing civil disputes between the parties. It was in that context, the instant incident had occurred. While PW1 along with PW4 was plucking coconuts from their property, the incident began. Obviously, a scuffle followed and in that incident PWs.1, 4 and 10 sustained injuries. Sustenance of bite marks at the abdomen of PW1 indicates that there had a scuffle between the parties. The abrasions sustained by PWs.4 and 10 indicate that they fell in the canal and that resulted such abrasions. They have no case also that they were hit using stone. Beating up with a stick like MO2 did not ordinarily cause abrasions on the scalp. In that context, lack of evidence regarding specific overt acts concerning infliction of injuries using MOs.1 and 2 becomes crucial. I am of the view that the 12 Crl.Revision Petition No.136 of 2020 evidence tendered by the prosecution is insufficient to prove beyond doubt that the injuries sustained by PWs.1, 4 and 10 were the result of attack using MOs.1 and 2, or for that matter, any dangerous weapon. 14. When evidence in that regard is not specific enough to lead a definite finding, I am of the view that the conviction of the petitioners for the offence under Section 324 of the IPC cannot be sustained. However, the contention of the learned counsel for the petitioners that the evidence is lacking to prove that PWs.1, 4 and 10 were wrongfully restrained cannot be appreciated. When PW1 was beaten up at the abdomen by the 1[st] accused and bit that by itself amounted to wrongful restraint. So also, from the other acts of attack, it is proved that PWs.4 and 10 were pulled down in the canal. In the light of the said evidence, it is obvious that the acts of the petitioners amounted to not only an offence under Section 323, but also under 341 of the IPC. Accordingly the conviction of the petitioners for the offence under Sections 323 and 341 read with Section 34 of the IPC is confirmed; whereas their 13 Crl.Revision Petition No.136 of 2020 conviction for the offence under Section 324 read with Section 34 is set aside. 15. Each of the petitioners was sentenced to undergo simple imprisonment for a term of six months under Section 323 of the IPC and one month under Section 341 of the IPC. Having heard the submissions of the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that slight modification in the sentence is called for. Hence, each petitioner is sentenced to undergo simple imprisonment for a term of three months for the offence under Section 323 and to undergo simple imprisonment for a term of one month under Section 341 of the IPC. The terms of sentence shall run concurrently. Set off, if any, shall be entitled by the petitioners. The revision petition is allowed in part accordingly. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr