Ibrahim T. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935** **Crl.Rev.Pet.No. 562 of 2013 () -------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 251/2011 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC-II), KASARAGODE DATED 16-01-2013** **AGAINST THE JUDGMENT IN CC 890/2008 of J.M.F.C., KASARAGOD DATED 05-08-2011** **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------** **IBRAHIM.T., S/O. MUHAMMAD, CHEMBAKKADU, BEDAGOM VILLAGE, KASARGODE.** **BY ADVS.SRI.M.RAMESH CHANDER (SR.) SRI.ANEESH JOSEPH SMT.DENNIS VARGHESE** **RESPONDENT/RESPONDENT/COMPLAINANT:** **-----------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (SHO, BEDAKAM POLICE STATION).** **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = Crl.R.P.No.562 of 2013. = = = = = == = = = = = Dated this the 25[th] June, 2013. ## **O R D E R** The Revision Petitioner is the Accused in CC.No.890 of 2008 on the files of the Judicial First Class Magistrate Court-I, Kasaragod as well as the Appellant in Crl.Appeal No.251 of 2011 on the files of the Court of Sessions Judge, Kasaragod Division. He was prosecuted for the offence punishable under Section 341, 324, 325 of the Indian Penal Code. After trial, he was found guilty under the said offences and convicted thereunder. He was sentenced to pay a fine of Rs.500/- under Section 341 IPC and in default to undergo simple imprisonment for seven days. He is sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.500/- under Section 324 IPC and in default to undergo simple imprisonment for three months. Under Section 325 IPC he was sentenced to undergo simple imprisonment for three years and to pay a **Crl.R.P.No.562/2013.** 2 fine of Rs.5,000/- and in default to undergo simple imprisonment for three months. If the fine is realised, Rs.5,000/- shall be paid to Pw1. and the substantive sentence shall run concurrently. Though he had preferred an appeal, the appellate court also confirmed the conviction and sentence as such without any interference. This Revision Petition is filed against the concurrent findings of conviction and sentence imposed by the courts below concurrently. 2. It is the case of the prosecution that on 31.8.2008 at 12.00 noon while Pw1, the defacto complainant and his workers Pw2 and 3 were extracting stones from a quarry situated in the property of one Narayanan at Panniyadi in Bedakam Village, the accused wrongfully restrained Pw1 and beat him with gliricidia stick causing injury on his left forehead. It is further alleged that the accused pulled the left hand of Pw1 causing dislocation to his left shoulder and he has thereby committed the offences punishable under Section 341, 324 and 325 IPC. **Crl.R.P.No.562/2013.** 3 3. To prove the offence alleged against the Revision Petitioner, Pw1 to to Pw7 were examined and Ext.P1 to P4 and MO1 were marked. No evidence had been adduced by the Revision Petitioner. Coming to the evidence, Pw1 to Pw3 are occurrence witnesses and among them Pw1 is the injured. 4. Pw1 deposed that it was on the pathway near to the stone quarry where he and his workers Pw2 and 3 were working, the accused came to him and called him to the nearby pathway from where he beat him with MO1 stick causing injury on the left side of his head and caused dislocation to his left shoulder as he pulled his left hand. It was by asking as to who he was to find fault with his sister for not getting her goat tied. It was the screaming voice of Pw1 that attracted the attention of Pw2 and 3 to the scene of occurrence and they witnessed the incident in which Pw1 sustained injury. The accused beat him with MO1 stick and pulled his left hand. The above evidence of Pw1 is well corroborated by the evidence of Pw2 and 3 who rushed to **Crl.R.P.No.562/2013.** 4 the spot on hearing the screaming voice of Pw1. 5. The evidence of Pw1 to Pw3 are further got assurance from the medical evidence and MO1 gliricidia stick recovered from the scene of occurrence. Pw4 is the Medical Officer who examined Pw1 immediately after the incident and issued Ext.P2 wound certificate. He has deposed in terms with Ext.P2 wound certificate. MO1 stick was seized by Pw6, the ASI of Police under Ext.P3 scene mahazar. After an overall evaluation of the evidence of Pw1 to Pw3, the trial court found that the alleged offence against the Revision Petitioner was proved beyond reasonable doubt. In appeal, the Appellate Court also re-appreciated the entire evidence and concurrd with the findings of the trial court. 6. The reason for the attack was well established by the evidence of Pw1 and it gets assurance from Ext.P1 FI statement also. Pw1 deposed that the goat belonged to the sister of the Revision Petitioner destroyed the improvements effected in the property of Pw1 and hence he **Crl.R.P.No.562/2013.** 5 had asked his sister to tie the goat and it was on account of that incident the Revision Petitioner came to him and asked him as to who he was to advise his sister to tie the goat and assaulted him. I do not find any kind of perversity in the appreciation of evidence made by the courts below. 7. The learned counsel for the Revision Petitioner reiterated the arguments advanced before this Court also. The counsel for the Revision Petitioner pointed out that Pw2 and Pw3 are interested witnesses. But, at the time of examination, not a single suggestion had been put to these witnesses that they are deposing falsely on account of either enmity towards the Revision Petitioner or interestedness towards Pw1. In cross-examination the Revision Petitioner challenged the presence of Pw2 and Pw3. But, Pw1 the injured had specifically stated before the court that it was while he and Pw2 and Pw3 were removing the stone and earth from the quarry the accused came there and called him and led him to the near by pathway and thereafter beat him and on hearing the screaming voice of Pw1, Pw2 and **Crl.R.P.No.562/2013.** 6 Pw3 reached there immediately. Pw3 stated that within one minute from the time when he heard the screaming voice of Pw1 he reached the spot and he had seen the accused beating Pw1 with stick twice. This evidence was not challenged in cross-examination also. Therefore, the presence of Pw2 and Pw3 stands beyond doubt. The second point raised by the counsel is that there are certain contradictions in the evidence of Pw1 to Pw3. After examining the said contradictions, the court below found that those contradictions are not material and that will not affect the substratum of prosecution case. As rightly pointed out by the Appellate Court in **Sukhchain Singh v. State of Haryana** (2002(5) SCC 100) the Supreme Court held that, every contradiction or improvement not directly related to the occurrence is no ground to reject the testimony of witnesses. Minor contradictions, inconsistencies, embellishment or improvements on trivial matters which do not affect the core of the prosecution case should not be made a ground on which the evidence can be **Crl.R.P.No.562/2013.** 7 rejected in its entirety. This is the preposition laid down by the Apex Court in **A.Sankar v. State of Karnataka** (2011 (6) SCC 279). The third point raised by the counsel is that the name of assailant is not seen in the wound certificate. Therefore, it cannot be believed. As pointed out by the Appellate Court the fact that the name of the assailant is not seen in the wound certificate cannot be a ground to presume that the injured has not stated to the doctor the name of the assailant. Similarly, recording of the name of the assailant or holding an enquiry regarding the occurrence is neither a duty of the doctor nor usually expected from him at the time of examining an injured brought to the casualty ward of the hospital. This is the view of the Apex Court taken in **Sukhchain singh v. State of Haryana** (2002(5) SCC 100). Thus the appellate court considered the entire arguments advanced by the Revision Petitioner and successfully ruled out the said arguments. There is no illegality or impropriety in the impugned judgment under challenge. Therefore, I confirm the **Crl.R.P.No.562/2013.** 8 conviction. 8. Next point to be considered is whether the sentence imposed on the Revision Petitioner is proper and justifiable. The learned counsel for the petitioner submits that the sentence imposed on the petitioner is disproportionate with nature and gravity of the offence and excessive. Prison term is inevitable for securing the interest of deterrence. But, I am of the opinion that the length of the term alone is not the decisive factor for the same. The length of the term can be reduced and modified, provided that the Revision Petitioner must give adequate compensation to the injured. 9. In the above view, in supersession of the sentence imposed by the trial court and conformed by the Appellate Court the Revision Petitioner/accused is sentenced to pay a fine of Rs.500/- (Rupees five hundred only) under Section 341 IPC and in default to undergo simple imprisonment for seven days. Further, he is sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.8,000/- **Crl.R.P.No.562/2013.** **==> picture [7 x 10] intentionally omitted <==** (Rupees eight thousand only) under Section 324 of the Indian Penal Code and in default to undergo simple imprisonment for one month and he is further sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.10,000/- (Rupees ten thousand only) under Section 325 of the Indian Penal Code. In default to undergo simple imprisonment for one month. Entire fine amount shall be given to PW1 under Section 357(1)(b) of the Crl.PC. Set off is allowed and sentence shall run concurrently except default sentence. Bail bond will stand cancelled and the trial court is directed to execute the sentence forthwith. **K. HARILAL,** **(Judge)** **Kvs/-**