Devarajan @ Babu and Natarajan v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE G.GIRISH ``` ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ``` ## **`CRL.REV.PET NO.221 OF 2006`** ``` AGAINST THE JUDGMENT DATED 29.08.2003 IN CC 544/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, NEYYATTINKARA CRA 416/2003 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED NO.1:`** ``` DEVARAJAN @ BABU, S/O.PONNU NADAR VAZHARATHALA VEEDU, NADOORKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA. BY ADVS. SRI.B.KRISHNA MANI SRI.RAHUL VENUGOPAL SMT.S.SIBHA ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI SANAL P.RAJ - PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 07.11.2023, ALONG WITH CRL.REV.PET.222/2006, THE COURT ON 15.11.2023 DELIVERED THE FOLLOWING: ``` 2 Crl.R.P.Nos.221 & 222 of 2006 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE G.GIRISH ``` ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ``` ``` CRL.REV.PET NO.222 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 29.08.20003 IN CC 544/1998 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATINKARA CRA 424/2003 OF DISTRICT COURT & SESSIONS COURT, ``` ## **`THIRUVANANTHAPURAM`** ## **`REVISION PETITIONER/APPELLANT/ACCUSED NO.2:`** ``` NATARAJAN, S/O.KAVARIYEL NADAR, MELE ROADARIKATHU VEEDU, MANKOTTUKONAM, NADOORKOLLAM DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA. BY ADVS. SRI.B.KRISHNA MANI SRI.RAHUL VENUGOPAL SMT.S.SIBHA ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI SANAL P.RAJ - PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 07.11.2023, ALONG WITH CRL.REV.PET.221/2006, THE COURT ON 15.11.2023 DELIVERED THE FOLLOWING: ``` 3 Crl.R.P.Nos.221 & 222 of 2006 ## **G.GIRISH, J.** **---------------** ## **Crl.R.P.Nos.221 & 222 of 2006** **------------------------------** ## **Dated this the 15[th] day of November, 2023 O R D E R** The concurrent findings of Judicial First Class Magistrate Court-I, Neyyattinkara and Sessions Court, Thiruvananthapuram convicting and sentencing the accused Nos.1 & 2 for the offence punishable under Sec. 324 IPC, is the challenge in this revision petition. 2. The prosecution case is that on 13.05.1998 at about 4.30 p.m., the accused, in furtherance of their common intention to inflict bodily injury upon PW1, wrongfully restrained PW1, while he was standing in the landed property of his elder brother, and thereafter, while the 2[nd] accused caught hold of PW1, the 1[st] accused took out a knife from his loin and inflicted a stab injury upon the head of PW1. It is further alleged that the 2[nd] accused inflicted blows upon the chest and upper back of PW1, causing swelling and contusion. 4 Crl.R.P.Nos.221 & 222 of 2006 3. Sub-Inspector of Police, Neyyattinkara, the learned Magistrate took cognizance of the offence and issued summons to the accused. Upon appearance, charge was framed by the learned Magistrate under Secs.341, 323 and 324 IPC r/w S.34 IPC, and read over and explained to the accused, to which they pleaded not guilty. In the trial that followed, six witnesses were examined from the part of the prosecution as PW1 to PW6, and four documents marked as Exts.P-1 to P-4. After questioning the accused under Sec.313 Cr.P.C., the learned Magistrate gave opportunity to the accused for defence evidence, but they did not adduce any evidence. 4. After evaluating the evidence on record, and hearing the prosecution and defence, the learned Magistrate found both the accused guilty of Sec.324 IPC. They were convicted and sentenced to simple imprisonment for six months and fine Rs.2500/- each. The accused were acquitted in respect of the charge under Sec.341 and 323 IPC. 5. Though the accused approached the Sessions Court, Thiruvananthapuram by filing Crl.Appeal No.416/2003 and 5 Crl.R.P.Nos.221 & 222 of 2006 424/2003 against the above conviction and sentence, the learned Sessions Judge declined to interfere, and dismissed the appeal. Crl.R.P No.221/2006 has been filed by the 1[st] accused, and Crl.R.P.No.222/2006 by the 2[nd] accused, against the above verdict of the Sessions Court, Thiruvananthapuram in the common judgment dated 12.12.2005 in the above Crl.Appeals. 6. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 7. The learned counsel for the revision petitioner reiterated the arguments which the accused unsuccessfully advanced before the courts below regarding the nonacceptability of the sole evidence of PW1, the injured, towards finding the guilt of the accused. It is also pointed out that the inability of the Investigating Agency to recover the weapon of offence, ought to have been considered by the courts below as a circumstance which would vitiate the entire prosecution case. 8. At the outset, it has to be stated that the arguments advanced by the learned counsel for the revision petitioner in the above regard, as if the present proceedings are appeals preferred against the judgments under challenge, are liable to 6 Crl.R.P.Nos.221 & 222 of 2006 be repelled at the threshold. It is well-settled that this Court is not expected to re-appreciate the evidence and come to its own conclusion against the concurrent findings of the trial court and the appellate court unless any glaring feature, which would otherwise tantamount to gross miscarriage of justice is brought out. The revisional power of this Court under Secs.397 to 401 of the Code of Criminal Procedure is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law, or is grossly erroneous or glaringly unreasonable, or where the material facts are wholly ignored, or where the judicial discretion is exercised arbitrarily or capriciously, it is not possible for this Court to interfere with the verdict under challenge, in exercise of revisional jurisdiction. The proposition of law in this regard has been laid down by the decisions of the Apex Court in _**State of Kerala v. Jathadevan Namboodiri**_ **[1999 KHC 168 SC : AIR 1999 SC 981],** _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr.**_ **[2015 KHC 4037 SC : (2015) 3 SCC 123]** and _**Kishan Rao**_ 7 Crl.R.P.Nos.221 & 222 of 2006 ## **SCC 165]** 9. As far as the present case is concerned, the evidence tendered by PW1, the injured, with regard to the physical assault perpetrated upon him by the accused leading to injuries, does not suffer from any material defects, which would render it unreliable. It is not possible to discard the evidence of a witness for the sole reason that he is the injured, and hence he is likely to support the prosecution case as a matter of course. So also the absence of other oral evidence pertaining to the crime cannot be taken as a vitiating circumstance, which would defeat the prosecution case. Same is the situation with regard to the non-recovery of weapon of offence. There is no hard and fast principle of law that, in all cases, the non-recovery of weapon of offence has to be taken as a circumstance rendering the prosecution case improbable. Thus there is absolutely no reason to interfere with the concurrent findings of the court below convicting the accused for the commission of offence under Sec.324 IPC. 10. Now the question to be looked into is whether the sentence of simple imprisonment for six months and fine of 8 Crl.R.P.Nos.221 & 222 of 2006 Rs.2,500/- imposed as punishment by the courts below require any modification. It is argued by the learned counsel for the petitioners that the petitioner in Crl.R.P No.221/2006 is now aged 63 years, and the petitioner in Crl.R.P No.222/2006 aged 53 years. The incident involved in these cases took place two and a half decades ago at a time when the above petitioners were subject to the vagaries of their youthhood. According to the learned counsel for the petitioners, the long elapse of 25 years of this litigation has resulted in remorse and repentance in the petitioners, and hence they may be spared from getting imprisoned for the wrongs committed in the long past. 11. It is true that the elapse of a long period of time could not extenuate the seriousness of a crime. However, taking into account of the nature of the offence involved in this case and the gravity of the injuries sustained by PW1, I feel that an opportunity has to be afforded to the petitioners to avoid incarceration in prison, if they are prepared to make payment of exemplary compensation to PW1, the injured in this case. Having regard to the facts and circumstances of the case, it 9 Crl.R.P.Nos.221 & 222 of 2006 appears to be expedient in the interests of justice to modify the sentence imposed upon the petitioners to imprisonment till the rising of the court and payment of compensation to the tune of Rs.10,000/- (Rupees Ten Thousand only) each to PW1 or his legal heirs. In the result, - (i) While confirming the conviction of the petitioners for the commission of offence under Sec.324 IPC, the sentence is modified to imprisonment till the rising of court, with a further direction under Sec.357(3) Cr.P.C. to the petitioners to pay compensation Rs.10,000/- (Rupees Ten Thousand only) each to PW1 - Mr.Vijayan, or in his absence, to his legal heirs. - (ii) In the event of default of payment of compensation, as directed above, the petitioners will undergo simple imprisonment for a term of six months. - (iii) The petitioners are directed to appear before the - Court of Judicial First Class Magistrate – I, 10 Crl.R.P.Nos.221 & 222 of 2006 Neyyattinkara on or before 30.12.2023 for undergoing the sentence, as directed above, and for depositing the compensation amount of Rs.10,000/- each. - (iv) Upon deposit of the compensation amount by the petitioners, the learned Magistrate shall take steps for the release of the said amount to PW1 or his legal heirs. - (v) Forward a copy of this order along with case records to the court below, for prompt enforcement of the directions. ## **Sd/-** ## **G.GIRISH, JUDGE** vgd