Crl.Rev.Pet.No. 2018 of 2004 (B)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933** **Crl.Rev.Pet.No. 2018 of 2004 (B)** **-------------------------------CRA.703/2001 of D.C. & SESSIONS COURT,KOZHIKODE CC.169/1999 of J.M.F.C.,VADAKARA** **PETITIONER/REVISION PETITIONER ------------------------------** **1. SUNIL, S/O.KUMARAN, CHERIYA ILLATH HOUSE, PONMERI AMSOM, PARAMBIL DESOM, AYANCHERI, VADAKARA.** **2. BIJU, S/O.GOPALAN, AMBALAPARAMBATH, AYANCHERI, VADAKARA.** **3. MOHANDAS, S/O.KUMARAN, KAKKOTHU KANDIYIL, PONMERI AMSOM, PARAMBIL DESOM, AYENCHERI, VADAKARA.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH** **RESPONDENT/RESPONDENT** **---------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DG** ## **N.K.BALAKRISHNAN, J.** ## **---------------------------------------------------Crl.R.P.No.2018 of 2004 ---------------------------------------------------Dated this the 25th day of January, 2012** ## **Order** The revision petitioners were convicted by JFCM, Vadakara for offence punishable under Sections 324 and 341 r/w 34 IPC. They were sentenced to undergo S.I. for one year each for offence under Section 324 IPC and S.I. for one month each for offence under Section 341 IPC. The appellate court confirmed the conviction but modified the sentence to undergo S.I. for six months each for offence under Section 324 IPC and S.I. for one month each for offence under Section 341 IPC. 2. The incident took place on 24.5.1998 at about 5.15 PM on Ayancherry-Villiappally public road. P.W.1, the injured was proceeding in an autorickshaw. The petitioners reached there in a scooter. The autorickshaw was blocked. The second accused inflicted injury on the right elbow of the injured using M.O.1 which is described as koduval. The doctor examined the injured and issued wound certificate. The police reached the hospital and recorded the F.I.Statement based on which the FIR was registered. After investigation charge sheet was laid against the Crl.R.P.2018/04 petitioners. 2 3. P.Ws.1 to 11 were examined and Exts.P1 to P6 were marked. It was stated that the brother of P.W.1 was removed from the service of A3 and pursuant thereto there was a dispute between them. 4. The learned Magistrate accepted the evidence given by P.W.1, the injured which was supported by P.W.2, an independent witness and found the prosecution case true, convicted the accused and sentenced them as mentioned earlier. 5. The learned counsel for the petitioners has argued at length challenging the appreciation of evidence made by the two courts below. According to the learned counsel, there was a totally wrong appreciation of evidence by the two courts below. It is submitted that many of the crucial aspects were omitted to be considered. The learned counsel submits that in Ext.P1, the statement given by P.W.1 was to the effect that A2 inflicted the injury with a sword. But in evidence he has stated, when the weapon was shown to him, that the injury was inflicted with M.O.1 koduval -chopper. Therefore, according to the learned Crl.R.P.2018/04 3 counsel, there was inconsistency in the weapon stated to have used which the courts below have lost sight of while appreciating the evidence. But the learned Public Prosecutor would submit that the malayalam word 'koduval' might have been heard by the police officer as 'val' (sword) and at any rate the substratum of the prosecution case is not shattered because the injury found on the body of P.W.1 could be caused by using M.O.1 koduval (chopper). It was so testified by doctor, P.W.10, who proved Ext.P6 wound certificate. It is argued by the learned counsel for the petitioners that had P.W.1 been cut with chopper, then there would have been incised injury but only a lacerated injury with an abrasion was found on the right elbow which P.W.1 would have sustained due to a fall from the autorickshaw. The question is not whether such an injury could be caused by some other weapon or by some other way but the point is whether the evidence given by P.W.1 as to how he sustained injury is worthy of acceptance. 6. It is also argued by the learned counsel that there is discrepancy in the evidence regarding the seizure of M.O.1. M.O.1 was stated to have been handed over by P.W.2.l In Crl.R.P.2018/04 4 evidence he says that M.O.1 was seen by him having been left there by the accused and so he took that weapon to his house and it was there for two days and thereafter it was seized by the police. But at the same time, during cross-examination it was stated by him that M.O.1 was lying at the place of incident itself and it was from there he took it and handed over the same to the police. The credibility of a witness does not depend upon his erudition or memory power. Ext.P2 seizure mahazar shows that the weapon was handed over by P.W.2 from his house and it was seized by P.W.9. Since Ext.P2 is the contemporaneous record prepared by the police officer regarding the seizure of the same, what has been mentioned in Ext.P2 should be preferred to. Therefore, even if there is any inconsistency in the evidence given by P.Ws.1 or 9 as to the place from where it was seized, that cannot militate against the prosecution since Ext.P2 was accepted by the trial court as well as by the appellate court. Similarly, the fact that M.O.1 did not contain blood stains at the time of seizure may not be of much consequence since the seizure was effected after two days of the incident. Crl.R.P.2018/04 5 7. The other ground that has been vehemently argued by the learned counsel is that in Ext.P1 or in the statement given by the witnesses to the police it was not stated as to the light in which the accused could be identified. But there is evidence to show that P.W.1 was proceeding in an autorickshaw driven by him and that autorickshaw was intercepted by the accused who reached there on a scooter. Therefore, there would be parking light of the autorickshaw and also the light of the scooter and as such there could be no difficulty to identify the assailants as stated by the witnesses. There was no case for the accused that the accused were strangers. Not only that even according to the defence, there was a dispute between the brother of P.W.1 and A3 and that they belong to the same locality. Therefore, the argument advanced by the learned counsel for the petitioners relying on the decision of the apex court in **Arokia Thomas v. State of T.N.** [(2006) 10 SCC 542] is unacceptable. Not only that here in evidence it was stated as to the light in which the accused could be identified unlike in the case cited supra. 8. It was also argued by the learned counsel for the Crl.R.P.2018/04 6 petitioners that there was inconsistency in the evidence regarding the place of incident also. It is contended that one witness states that the incident took place at 'S Mukku' whereas another witness states that it was a few meters away from 'S Mukku'. The place 'S Mukku' is not specifically noted in the scene mahazar. But it appears that the curve on the road at that place was noted. The place of incident is six meters away from that curve. Therefore it cannot be said that there is inconsistency in the scene of occurrence so as to throw overboard the entire prosecution version. It is important to note that the evidence given by P.W.1, the injured, which was corroborated by P.W.2 was thoroughly scrutinised by the two courts below and entered a finding that the prosecution case is true. There is no illegality, irregularity or impropriety in the finding so entered by the courts below. Since all the three accused went to the scene of occurrence on the scooter, that too at 5.15 AM and they intercepted the autorickshaw driven by the accused proved to the hilt that A2 inflicted the injury on P.W.1 in furtherance of their common intention. In other words, all the accused earlier found guilty with Crl.R.P.2018/04 7 the aid of Section 34 IPC. The autorickshaw driven by P.W.1 was blocked by the accused, the offence under Section 341 is also attracted. The result therefore is that the conviction is well justified. It is only to be confirmed. 9. The learned counsel for the petitioners submits that the injuries are very minor in nature and since the incident took place about 14 years back, jail sentence may be avoided. The learned counsel for the petitioners would submit that A1 and A2 were then aged only 21 and 22 years. Since the injuries were very minor in nature, I find that it is just and proper that the sentence is modified to the extent of imprisonment till the rising of the court and to pay fine only. 10. In the result, this Crl.R.P. is disposed of as stated below: The conviction of the petitioners for offence under Sections 341 and 324 r/w 34 IPC is confirmed. In supersession of the sentence awarded by the court below, the petitioners are sentenced to undergo imprisonment till the rising of the court and to pay Rs.3000/- each for offence punishable under Section 324 Crl.R.P.2018/04 8 r/w 34 IPC and in default the petitioners will undergo S.I. for two months each. They are also sentenced to undergo imprisonment till the rising of the court and to pay Rs.1000/- each for offence punishable under Section 341 r/w 34 IPC and in default the petitioners will undergo S.I. for one month each. If the fine amount is paid or realised, Rs.4000/- shall be paid to P.W.1, the injured. ## **N.K.BALAKRISHNAN, JUDGE.** srd Crl.R.P.2018/04 9