Crl.Rev.Pet.No. 3347 of 2008 in CRA 714/2005 of Addl. District Court (Adhoc), Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939 Crl.Rev.Pet.No. 3347 of 2008 IN CRA 714/2005 of ADDL.DISTRICT COURT (ADHOC), KOZHIKODE DATED 30-06-2008 IN CC 120/2005 of C.J.M.,KOZHIKODE DATED 30-09-2005 ## REVISION PETITIONER(S)/APPELLANT/ACCUSED NO.1 MAHESH, AGED 27, CHANDAMMAN, MEETHALE KALLUMMAL HOUSE, CHEKKIYAD AMSOM,, KURUVANTHERI DESOM, VATAKARA TALUK,, KOZHIKODE. BY ADVS.SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SMT.K.M.RAMYA SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR ## RESPONDENT(S)/COMPLAINANT & FORMAL PARTY: 1. STATE OF KERALA TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, NADAPURAM POLICE STATION, KOZHIKODE. BY PUBLIC PROSECUTOR SMT. SREEJA V. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ds **P.UBAID, J. -----------------------------------------Crl.R.P. No.3347 of 2008 --------------------------------------------------Dated this the 3[rd] day of January 2018** ## **O R D E R** The revision petitioner herein is the 1[st] accused in C.C.No.120/2005 of the Chief Judicial Magistrate Court, Kozhikode. He and three others faced prosecution in the court below under Section 326 IPC read with Section 34 IPC, on the allegation that at about 7 p.m. on 3.8.2000, they assaulted one Vasu due to political animosity at the veranda of the tea shop of one Asokan, and inflicted grievous injury on his leg with a chopper. The crime was registered on the basis of the F.I.Statement given by the said Vasu at the hospital at 6 p.m. on 4.8.2000. During investigation, the police arrested the four accused, and submitted final report in court after investigation. The four accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them under Section 326 IPC read with Section 34 IPC. 2. The prosecution examined 14 witnesses in the trial court, and proved Exts.P1 to P9 documents. The MO1 pair Crl.R.P. No.3347 of 2008 -: 2 :- of chappal was also identified during trial. Two doctors were examined as CW1 and CW2 at the instance of the court as court witnesses, and they were cross examined by the defence. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances, and projected a defence of total denial. They also examined a witness as DW1 in defence. In spite of efforts made by the Investigating Officer to recover the weapon of offence, the said weapon could not be seized or recovered. 3. On an appreciation of the evidence, the learned Magistrate found the accused Nos.2 to 4 not guilty, and accordingly, they were acquitted, but the 1[st] accused was found guilty under Section 326 IPC. On conviction, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of `10,000/-, by judgment dated 30.9.2005. Aggrieved by the judgment of conviction, the 1[st] accused approached the Court of Session, Kozhikode with Crl.A.No.714/2005. In appeal, the learned Additional Sessions Judge (Adhoc) – I, Kozhikode confirmed the conviction and sentence, and accordingly, dismissed the appeal by judgment dated 30.6.2008. Now, the 1[st] accused is before this Court in revision challenging the legality Crl.R.P. No.3347 of 2008 -: 3 :- and propriety of the conviction and sentence. 4. The revision petitioner challenges the conviction and sentence on certain grounds such as inconsistency between ocular evidence and medical evidence, and also the improbability of the alleged injury. 5. Of the 14 witnesses examined in the trial court, PW1 to PW6 and PW13 are the material witnesses. Of them, PW2 is the de facto complainant, who sustained grievous injury in the alleged incident. PW4 and PW5 turned hostile during trial. They did not support the prosecution in any manner. PW1 was also declared hostile by the prosecution, but, his evidence contains some res gestae evidence as against the accused. PW3 is the tea shop owner, and PW13 is the owner of the building, wherein, the tea shop is being run. Though the prosecution would allege that PW13 had witnessed the incident, his evidence is that he had not actually seen the incident. However, PW3 is definite that the alleged incident happened at his shop, and he had clearly seen the 1[st] accused inflicting an injury on the leg of PW2 with a chopper. 6. Of course, it is true that PW1 has stated that he had not actually seen the alleged incident, or the accused Crl.R.P. No.3347 of 2008 -: 4 :- inflicting injury on the body of PW2. But he is definite that when he reached the scene of incident, he saw PW2 lying with a bleeding injury on his leg, and when asked what happened to him, he replied that he was assaulted by the 1[st] accused Mahesh. This statement was given by PW2 to PW1 within a few minutes, and so, this will have the value and acceptability as res gestae evidence as against the accused. 7. PW2, the defacto complainant has given definite and consistent evidence proving the prosecution case. His evidence is fully consistent with the statements in the Ext.P1 First Information Statement. This witness is corroborated by PW3 and PW6 on material particulars as regards the place of incident, the nature of the weapon used, the injuries inflicted etc.. I find no reason to disbelieve PW2 or PW3 or PW6. Just because PW6 is a distant relative of the wife of PW2, he cannot be disbelieved, and his evidence cannot be rejected, when it is otherwise acceptable and believable. PW3 has no reason to give evidence in favour of PW2, or against the accused. I find that on facts, the prosecution case stands well proved by the evidence of PW2, PW3 and PW6 and also the res gestae evidence given by PW1 incriminating the first accused. I find no reason to Crl.R.P. No.3347 of 2008 -: 5 :- disbelieve any of them. The medical evidence in this case proves that PW2 had sustained compound fracture of his right tibia involving a very long lacerated wound injuring the popliteal nerve. The Ext.P9 case sheet, and also the other medical documents like the wound certificate, discharge summary etc. contain the details of the injury sustained by PW2, and also the details of the treatment undergone by him. Exploratory treatment had to be given to PW2 at the Medical College Hospital, Kozhikode, where, consequent to the very serious injury, his right leg had to be amputated 5 cms below the right knee. It stands well proved by medical evidence that PW2 had sustained a very serious fracture of his right tibia in the alleged incident, and this injury even caused amputation of his right leg 5 cms below the knee. The severity and gravity of the injury is well proved by medical evidence. 8. The defence cited **Thaman Kumar** v. **State of Union Territory of Chandigarh** (AIR (2003) Supreme Court 3975), **Niranjan Prasad and others** v. **State of Madhya Pradesh** (1996 Crl.L.J. 1987), **Kapildeo Mandal and Others** v. **State of Bihar** (AIR (2008) Supreme Court 533), and **Sunil Kundu and Another** v. **State of Jharkhand** ((2013) 4 Supreme Crl.R.P. No.3347 of 2008 -: 6 :- Court Cases 422) to contend that when there is inconsistency between ocular evidence and medical evidence, the benefit of this must go to the accused, and that when the prosecution has made improvements in evidence, the benefit of this also must go to the accused by way of benefit of doubt. 9. In fact, on a close examination of the entire materials in this case, I find no inconsistency between the ocular evidence and the medical evidence. One point urged by the defence is that the injury allegedly sustained by PW2 in the alleged incident is not possible with a weapon of the nature stated by him. Of course, it is true that the weapon of offence could not be seized or recovered during investigation. The Assistant Sub Inspector who took over initial investigation stated in evidence that in spite of earnest efforts, the weapon could not be recovered. However, PW2 has given a clear picture of the weapon of offence. Nothing was asked to the doctor regarding the probabilities of the injury, with a weapon of the nature stated by the injured. Another point urged by the defence is that if PW2 was in fact sitting on a chair or stool at the tea shop, the injury noticed by the doctor may not be possible with a weapon like the one described by PW2. In fact PW2 is consistent in the Crl.R.P. No.3347 of 2008 -: 7 :- FI Statement, and also in evidence that he was not in fact sitting on a chair or a stool when the first accused inflicted injuries on his leg. A wrong question was put to the witness that the FI statement contains a statement that he was sitting at the tea shop when assaulted by the accused. In fact, the FI statement shows that PW2 was standing at the tea shop when he was cut by the accused with a chopper. I do not find any sort of improvement or inconsistency on this aspect. Improvement is practically some addition or embellishment from what is contained in the prosecution records. The prosecution records in this case including the FI statement will show that PW2 was in fact standing at the tea shop when the first accused inflicted a serious injury on his leg. The contention of the defence is that the copy of the FI statement furnished to the accused under Section 207 Cr.P.C. contains a statement otherwise. But it is pertinent to note that questions were put to PW2 in cross examination with respect to the Ext.P1 document. It is a document proved in evidence by PW2. It appears that nobody had gone through this original FI Statement, and nobody cared to find out what exactly is the statement in Ext.P1. I do not accept it as an embellishment or improvement, the benefit of Crl.R.P. No.3347 of 2008 -: 8 :- which can be given to the accused. 10. The defence contention is quite unacceptable that an injury as noted in this case by the doctors is not possible with a chopper described by PW2. It is pertinent to note that no such question was put to any of the doctors during trial. PW2 has clearly described the nature of the weapon. But no question was put to any of the doctors whether the injury as noted by the doctors is possible with such a weapon. If so, there is no meaning in contending that there is inconsistency in between the medical evidence and the ocular evidence. I also find no instance of embellishment or improvement in this case. 11. On an appreciation of the entire evidence, I find that the case on facts stands well proved by the evidence of PW1 to PW3 and PW6. The nature and the consequence of the injury is well proved by the medical evidence including that of CW1 and CW2 examined at the instance of the court. This is a case where PW2 had to undergo amputation of his right leg 5 cms below the right knee due to the very serious injury inflicted by the revision petitioner. I find that the conviction as against him under Section 326 IPC is only to be confirmed in revision also. Crl.R.P. No.3347 of 2008 -: 9 :- 12. Now the question of sentence. The jail sentence imposed by the trial court is rigorous imprisonment for three years, and the fine sentence is only Rs.10,000/-. The alleged incident happened in 2000, and now we are in 2017. The long lapse of years since the date of incident also will have to be considered by the court in deciding sentence. On a consideration of various aspects including the age and circumstances of the accused, I find that rigorous imprisonment for two years will be the adequate sentence in this case besides the fine sentence. In the result, the conviction against the revision petitioner under Section 326 IPC in C.C.No. 120 of 2005 of the trial court, confirmed in appeal in Crl.A.No. 714 of 2005 of the Court of Session, Kozhikode, is confirmed, and the revision petition is disposed of accordingly. However, the jail sentence imposed by the court below will stand reduced to rigorous imprisonment for two years. The fine sentence with the default sentence thereon is maintained. The revision petitioner will surrender before the trial court within three weeks from this date to serve out the sentence, and to make payment of the fine amount, on failure of which, steps shall be taken by the trial Crl.R.P. No.3347 of 2008 -: 10 :- court to enforce the sentence, and to recover the amount of fine or to enforce the default sentence. Sd/- **P.UBAID JUDGE** Jvt/ds/8.1.2018 //True Copy// P.A. To Judge