Crl.R.P. No. 1131 of 2001 (Thomas v. Sub-Inspector of Police, Kodenchery)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 **Crl.Rev.Pet.No. 1131 of 2001(C)** **-------------------------------** **CRA NO.295/1996 OF SESSIONS COURT, KOZHIKODE CC NO.112/1993 OF JUDICIAL FIRST CLASS MAGISTRATE II, THAMARASSERY.** REVISION PETITIONER/APPELLANT/ACCUSED: ------------------ THOMAS, S/O.MATHAI, KALAPPURAKKAL, KODENCHERRY, CHEMPUKADAVU, KOZHIKODE DIST. BY ADV. SRI.JACOB ABRAHAM RESPONDENT/RESPONDENT/COPMPLAINANT: ------------- THE SUB INSPECTOR OF POLICE, KODENCHERY REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.R.P. No.1131 OF 2001 -------------------------------------Dated this the 18[th] day of September, 2008.** ## **ORDER** On the charge that on 2.2.1993 at about 8.45 p.m. the revision petitioner voluntarily caused hurt/grievous hurt to PWs 1 to 4 by stabbing with knife on the public pathway in between the properties of PW1 and the revision petitioner, he faced trial in the court of Judicial First Class Magistrate-II, Thamarassery in C.C.No.112 of 1993 for the offences punishable under Sections324 and 326 of the Indian Penal Code. The learned Magistrate found that the revision petitioner committed the offences as alleged, convicted and sentenced him to undergo rigorous imprisonment for various periods. Though the revision petitioner preferred an appeal to the Sessions Court, Kozhikode, that appeal was dismissed vide judgment dated 3.11.2000. The revision petitioner has preferred this revision challenging the findings of the courts below. 2. Heard the learned counsel for the revision petitioner and the Public Prosecutor. It is argued by the learned counsel that evidence of PWs 1 to 7 regarding the alleged incident is not trustworthy, prosecution has not explained the injuries suffered by the revision petitioner and his wife in the course of the same incident, going by the evidence of prosecution witnesses, the place of occurrence is different and that the investigation was not fair in that no attempt was made by the Investigating Officer to ascertain the correctness of the defence version concerning the alleged incident. Learned counsel placed **Crl.R.P.No.1131/2001** 2 reliance on the decision of the Apex Court in **Kashiram and others v. State of M.P. ((2002) 1 SCC 71)** . The learned Public Prosecutor submitted that the evidence of PWs 1 to 7 is sufficient to warrant the conviction of the revision petitioner. 3. The first information regarding the alleged incident (Ext.P1) was given by PW1 on 3.2.1993 at about 4.30 p.m. while undergoing treatment at Medical College Hospital, Kozhikode. He stated in Ext.P1 that on the relevant day and time revision petitioner and his wife (Mary) abused him and family members, standing on the road near their house and when himself, wife and son, Manoj (PW3) came there, the revision petitioner stabbed them. His son, Sunny on hearing the hue and cry came there. He was also stabbed. PW1 gave evidence regarding the alleged incident in the above manner and identified MO1 as the weapon of offence (though the identification was made in re-examination). PWs 2 to 4 also injured, also gave evidence regarding the alleged incident. They stated that the revision petitioner stabbed them and PW1. PW3 identified MO1, the knife and MO2, the lunki which the revision petitioner was allegedly wearing at the time of incident. PW4 also identified MO1. PWs 5 to 7 are neighbours. They claimed to have witnessed the revision petitioner stabbing PWs 1 to 4. PWs 5 and 7 identified MO1. PW9 examined PWs 1 to 4 and issued Exts.P3 to P6. Evidence of PW9 and Exts.P3 to P6 show that PWs 1 to 4 sustained stab injuries on 2.2.1993. PW9 stated that those injuries could be caused with MO1. PW12, the Sub Inspector conducted the investigation. **Crl.R.P.No.1131/2001** 3 He prepared the mahazar for the scene of occurrence (Ext.P2) and seized MOs 2 and 3 from the place of occurrence. MO2 is a blood stained granite stone found at the scene of occurrence. 4. According to the revision petitioner, himself and wife were attacked by PW1 and others, himself and wife sustained injuries and underwent inpatient treatment at Medical College Hospital, Kozhikode. PW9 was examined as DW1 to prove Exts.D1 and D2, copy of the wound certificates of the revision petitioner and his wife, respectively. The revision petitioner was examined by DW1 (PW9) on 3.2.1993 at 12.15 p.m. and had lacerated wound 2 x 1 x 2 c.m. on the right thigh. The wife of the revision petitioner was examined by DW1 (PW9) on 2.2.1993 at 11 p.m. She had hematoma on the scalp 2 x 2 cms, myalga and incised wound below the left shoulder. 5. So far as the injuries suffered by the revision petitioner and his wife are concerned, though PWs 1, 2 and 4 to 7 pleaded ignorance about that, PW3 stated that the wife of the revision petitioner was trying to remove the revision petitioner in the course of the incident and in that process, may have sustained injuries. Pw12, the Investigating Officer admitted that the revision petitioner was inpatient in the hospital for seven days while his wife was inpatient for nine days. He stated that a case was registered against PWs 1 to 4 for assaulting the revision petitioner and his wife. But he was unable to say anything about the fate of that case as he was not possessed with the relevant records. PW10, the Head Constable who recorded Ext.P1, First **Crl.R.P.No.1131/2001** 4 Information Statement (of PW1) stated that since he was not aware in which ward the revision petitioner and wife were admitted he could not record their statement. Though, initially the wife of the revision petitioner was arrayed as the second accused in the First Information Report, PW12 after investigation filed Ext.P11, report deleting the second accused from the array of the accused since according to him, investigation revealed that the second accused not involved in the incident. 6. The crux of the argument of the learned counsel for the revision petitioner is that the Investigating Officer has not placed the whole truth before the court as to how the incident started, developed and culminated. It is in support of that contention the learned counsel placed reliance on the decision of the Apex Court in Kashiram and others v. State of M.P.(referred supra). There, the Supreme Court observed that the Investigating Officer having found one of the accused to have sustained injury in the course of the same incident should have at least made an effort to investigate the cause of and the circumstances resulting in injuries on the accused and that the failure to do that resulted in prejudice to the accused in their defence. 7. A decision is authority for the case it decides. So far as a case is concerned, the decision must be based on the facts of that case. The principle laid down in the authoritative pronouncements certainly, are binding on the subordinate courts. It is not as if in the case on hand no investigation was conducted as to how the revision petitioner and wife sustained **Crl.R.P.No.1131/2001** 5 injuries. It is pertinent to note that the revision petitioner took up the pains to prove Exts.D1 and D2 through DW1 (PW9). But he did not think it necessary to produce the records of the case registered against PWs 1 to 4. True, it is on his obligation to produce a copy of the charge sheet or other documents from that case. I am only referring to the conduct of the revision petitioner in his defence which may have a bearing on the question whether the evidence of PWs 1 to 7 can be accepted. 8. The worst that could be said in a situation like this is that the prosecution did not explain the injuries suffered by the revision petitioner and his wife. What is the consequence of that on the prosecution case should necessarily depend on the acceptability of the evidence let in by the prosecution. In the case on hand the revision petitioner had only implicated PWs 1 to 4 in the matter of himself and wife sustaining injuries. But there is evidence to PWs 5 to 7 who are independent witnesses and immediate neighbours of the revision petitioner as well as PWs 1 to 4. Nothing is brought out to suspect the version of PWs 5 to 7 regarding the incident. In such a situation, when the case of the prosecution is otherwise proved by acceptable evidence, even the failure (if at all it is so) to explain the injuries suffered by the revision petitioner and his wife cannot be said to be fatal. In fact the evidence of PW9 rules out the possibility of a scuffle involving PWs 1 to 4 on the one side and the revision petitioner and his wife on the other side. Moreover, Ext.D1 shows that the revision petitioner, though the incident was on 2.2.1993 at about 8.45 p.m. and **Crl.R.P.No.1131/2001** 6 he allegedly sustained injuries in that incident, got admitted in the hospital only the next day at 12. 15 p.m. There is no explanation why he got himself admitted in the hospital only the next day. At any rate, there is the evidence of PW3 that the wife of the revision petitioner could have sustained the injuries while she was trying to remove the revision petitioner in the course of the incident. The failure of PW12 to place before the court the records regarding the case registered against PWs 1 to 4 is not fatal in the circumstances. 9. It is next argued by the learned counsel that there is shift in the place of occurrence as spoken by the witnesses. The learned counsel says, if according to PW1 the incident occurred on the road in between the properties of revision petitioner and himself, PW5 would say that the incident occurred on the road through their property while according to PW7, the incident was at the garden. Ext.P2, the mahazar shows that the incident occurred on a public pathway going through the garden. As per the evidence of PW1, that pathway is in between the properties of himself and the revision petitioner. Therefore, PW7 is justified in saying that the incident occurred at the garden. It is also pertinent to note that in chief-examination PW7 had stated that the incident occurred on the footpath going along the properties. As such there is no shift in the place of occurrence, as contended by the learned counsel. On the materials on record, I am satisfied that the courts below were justified in **Crl.R.P.No.1131/2001** 7 placing reliance on the testimony of PWs 1 to 7 to hold that on the relevant day and time and at the relevant place, the revision petitioner inflicted stab injuries on PWs 1 to 4 with MO1. 10. So far as the conviction for the offence punishable under Section 326 of the Indian Penal Code is concerned, it is seen that PW9 stated that some of the injuries suffered by PWs 1 to 3 are 'grievous' and based on that, a finding is entered by the courts below that PWs 1 to 3 suffered grievous hurt. ”To be a grievous hurt” the injury must satisfy the definition given in Section 320 of the Indian Penal Code. Going through the evidence of PW9 and Exts.P3 to P6, I am not satisfied that any of PWs 1 to 4 suffered 'grievous hurt'. Therefore, the conviction for offence punishable under Section 326 of the Indian Penal Code and the sentence thereunder are to be set aside, and I do so. 11. So far as the sentence awarded for the offence punishable under Section 324 of the Indian Penal Code is concerned, the learned counsel submitted that leniency may be shown to the revision petitioner. He submitted that the revision petitioner is suffering from enlargement of lungs. Learned counsel submitted that along with the petition to condone delay in filing the Revision Petition the relevant medical records are produced. **Crl.R.P.No.1131/2001** 8 12. It is seen that photocopies of certificate and discharge summary are produced along with C.M.P.No.4871 of 2001 filed in this Revision Petition to condone the delay. These records say about the inpatient treatment of the revision petitioner in the hospital though for a short period of six days, for lung abrasion. It would appear that he is afflicted with illness of the lungs. The revision petitioner was aged about 60 years in the year 2001. Admittedly, the revision petitioner and PWs 1 to 4 are neighbours. The incident happened 15 years back. In these circumstances, I am inclined to think that it is not necessary in the ends of justice to send the revision petitioner behind the bars at this distant time. At the same time, he has to pay for his crime. PWs 1 to 4 suffered injuries at his hands and have to be compensated. In the circumstances, the sentence awarded to the revision petitioner under Section 324 of the Indian Penal Code can be modified as simple imprisonment till the rising of the court and compensation of Rs.20,000/- (Rupees Twenty thousand only) payable to PWs 1 to 4 in equal proportion. The Revision Petition is therefore, allowed in part in the following lines:- (1) The conviction and sentence imposed on the revision petitioner for the offence punishable under Section 326 of the Indian Penal Code are set aside and he is acquitted of that charge. **Crl.R.P.No.1131/2001** 9 (2) The conviction of the revision petitioner for the offence punishable under Section 324 of the Indian Penal Code is confirmed. (3) The sentence awarded for the offence punishable under Section 324 of the Indian Penal Code is modified as simple imprisonment till the rising of the court. The revision petitioner is directed to deposit in the trial court for payment to PWs 1 to 4 in equal proportion Rs.20,000/-(Rupees Twenty thousand only) as compensation within three months failing which he shall undergo simple imprisonment for three months. The revision petitioner shall surrender in the trial court on 22.12.2008 to receive the sentence. Crl.M.P.No.5328 of 2001 shall stand dismissed. **THOMAS P.JOSEPH, JUDGE.** cks **Crl.R.P.No.1131/2001** 10 **Thomas P.Joseph, J.** **Crl.R.P.No.1131 of 2001** **ORDER** **18[th] September, 2008.**