Kalaspurayil Venu and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939** **Crl.Rev.Pet.No. 1905 of 2003 ( )** **---------------------------------** **(AGAINST JUDGMENT DATED 06.06.2003 IN CRL.A.NO.211/1997 OF SESSIONS COURT, KASARAGOD IN C.C.NO.463/1995 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, HOSDURG DATED 8.10.1997)** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED:** **-----------------------------------------** - **1.KALASAPURAYIL VENU, S/O.AMBUNHI, MADAKKAL, SOUTH TRIKARIPUR.** - **2.KALASAPURAYIL DAMODARAN, S/O.AMBUNHI, MADAKKAL, SOUTH TRIKARIPUR.** - **3.PADINHATTAYIL PRASANTHAN, S/O.KUNHIKUTTAN, TAILOR, MADAKKAL, SOUTH TRIKARIPUR.** - **4.OLAKKARAN SURESH, S/O.KANNAN, OLAVARA, SOUTH TRIKARIPUR.** **BY ADVS.SRI.M.V.AMARESAN** **SRI.V.N.RAMESAN NAMBISAN** **RESPONDENT(S):** - **--------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R BY PUBLIC PROSECUTOR SMT.PRIYA SHANAVAS.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-07-2017, ALONG WITH CRRP.NO.2880/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **vgd** ## **K.P.JYOTHINDRANATH, J. ================================ Crl.R.P. No.1905 of 2003** ## **& Crl.R.P.No.2880 of 2006** ================================= Dated this the 3[rd] day of July, 2017 ## **O R D E R** These Criminal Revision Petitions are filed against concurrent findings of guilt by the courts below. A crime was registered as Crime No.70/1995 of Chandera Police Station. There were five accused. Originally four accused faced trial in C.C.No.463/1995 before the Judicial First Class Magistrate Court-I, Hosdurg and they were accused Nos.1, 2, 4 and 5 in that crime. At that point of time accused No.3 was absconding. He was tried by the court in C.C.No.1142/1998. All the accused were convicted for offences u/s 143, 147, 148, 448, 341, 323, 324, 325 read with Section 149 of IPC. The respective appeals filed by the appellants were dismissed. All the revision petitioners approached this Court by filing the above referred revisions. 2. Crl.R.P No.1905/2003 is filed by A1, A2, A4 and A5 CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 2 who were the convicted accused in C.C.No.463/1995, whereas Crl.R.P.2880/2006 is filed by the 3[rd] accused who was convicted in C.C.No.1142/1998. When the criminal revision petitions came up for hearing, the learned counsel for revision petitioners submitted before the Court that except for original accused No.5 in the crime, he is appearing for all the other revision petitioners. A memo is also filed in this regard. Since this being a revision, it will be only just proper to decide the matter on merit. 3. In the light of Sec.403 of Criminal Procedure Code, even though no person is appearing for the original 5[th] accused, the Court can decide the matter. After hearing the counsel and learned Public Prosecutor, it can be seen that the case of the prosecution is that on 30[th] March, 1995 at about 8pm, the accused five in number trespassed into the house wherein PW2 and PW3 were residing and caused hurt. Even though prosecution got a case that all the accused were equipped with sticks, belts etc., it can be seen from the evidence of PW2 and CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 3 PW3 that A5 alone used a belt. As per the evidence of PW2, the injured, the evidence is that while he was in the house, at about 8pm, he heard somebody calling him. As he has not recognized this person, he had not went outside the house. Then, one Venu, Damodaran, Prasanth, Purushothaman and one Suresh residing at Olavera jumped inside the house. It is the case that Venu caught hold on his left hand and Damodaran on his right hand and pulled him to the courtyard and they were caught on the hands with force. Suresh with a belt beat him on the face area and he sustained an injury on the eye. He was also beaten on the head and back of the chest. Purushothaman and Prasanth beat him with hands. At that time, his wife PW3 approached and interfered. Then Purushothaman kicked. Thereon some persons came and he was taken to the hospital. This is the gist of the evidence regarding the incident given by PW2. 4. As per the evidence of PW3, she also deposed that CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 4 Venu, one Damodaran, Purushothaman, Prasanth and one Suresh entered into the house and took PW2 outside and Venu and Damodaran caught on his hands and Suresh beat with a belt on his face area and her husband sustained injury in the eye and one Prasanth and Purushothaman beat on the chest area. When she cried, Purushothaman kicked her and she also sustained injury on the left leg. Hearing their cry, persons came and she as well as her husband were taken to the hospital. In this case, PW1 turned hostile. PW4 supported the prosecution case. 5. The main argument of the revision petitioner is that the appreciation of evidence by the court below was perverse. Surely, there was a conviction under Section 324 of IPC. Here, the belt was used to beat. Considering the belt as a dangerous weapon, convicted under Section 324 of IPC. The belt cannot be considered as a deadly or dangerous weapon. Thereon, it will be only proper to re appreciate the evidence. In this case, CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 5 the whole incident need not be doubted. The learned counsel appearing for the revision petitioners submitted before the court that there was nothing to show that there was light. In support of his submission, cited a decision of apex court **Arokya Thomas vs. State of Tamil Nadu ( 2006 (10) SCC 542)** . It is a case where the injured claimed that the incident was seen in the light of a motor bike. The claim was made, the first time, while he was giving evidence before the court. That was about 2 ½ years after the incident. But here is a case where the incident occurred in a house, the description of which as evident from Ext.P1, is a shed thatched with palm leaves. It is the case of the witnesses that they identified the persons in the light of a ranthal (kerosene lamp) kept in front of their house. I think, relying upon the said version, no error committed by the courts below. We can only expect that at 8pm there will be some light in a house especially when the case of the witnesses is that they had not gone to sleep. The incident occurred inside the house. As CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 6 already found, that there was no dangerous or deadly weapon. Thus, a conviction under Section 324 of the IPC will not prima facie lie. Surely, in this case, as evident from Ext.P4 there was a dislocation of shoulder as well as a fracture of clavicle. PW2 and PW3 were the injured witnesses. There was nothing to show that anybody beat or kicked at this area. Surely there was a case for the witnesses that he was caught forcefully by hands. There was a dislocation on the shoulder. It can be attributed as caused by holding on the hands. But when fracture is on the clavicle area, it can be only caused by exerting force to that particular area. Thus, it appears that there was some push and pull which was actually not presented before the court. This Court is fully aware that the accused were five in number and the incident occurred from the house of the victims. Thus, what comes out is that there was a common object to trespass and cause hurt to the injured PW2. 6. Thus, conviction under Section 143 read with Section CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 7 149 of the Indian Penal Code made out. In execution of the said object they proceeded and as per the evidence, PW2, he was taken out of the house after committing trespass. Under such circumstances, an offence under Section 448 read with Section 149 of the I.P.C. was also seen made out. He was forcibly taken out and there was restraining and thereafter assaulted. Therefore, an offence under Section 341 read with Section 149 of I.P.C also made out. As already found, no dangerous weapon was possessed by the accused. The allegation is that A5, used a belt. Under such circumstances, the conviction under Section 148 read with Section 149 of the Indian Penal Code will not lie. The said conviction under Section 148 read with Section 149 of I.P.C set aside. Even though no dangerous weapon was therein, they had committed assault and thereby an offence under Section 323 of the Indian Penal Code made out. Since there was more than five person and common object was therein, it can be seen that they had committed an offence under CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 8 Section 323 read with Section 149 of the Indian Penal Code. A5, Suresh, caused injury on the eye of the victim using a belt. It was found that belt cannot be considered as a dangerous weapon. But at the very same time, it is an injury caused on cornea. Under such circumstances, conviction under Section 325 of the Indian Penal Code against above said Suresh, who is the 4[th] petitioner in Cr.R.P. No.1905/2003 is made out. 7. Thus, considering the fact that the incident occurred in the year 1995 and further considering the fact that I have already found that except 4[th] petitioner in Crl.R.P. No.1905/2003 who was the original 5[th] accused, are not liable for injury caused in this case, it is found that A5 caused injury on the corneal area and was found guilty for an offence under Section 325 of the Indian Penal Code. I feel that substantive sentence of imprisonment is not warranted in the case of original accused No.A1 to A4 (except A5, Olakkaran Suresh). Hence, under Section 143 read with Section 149 of the Indian Penal Code, all CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 9 the revision petitioners except above referred Suresh are sentenced to imprisonment till rising of the court and to pay a fine of Rs.1,000/- each with default simple imprisonment for one month. For offence under Section 341 read with Section 149 of the Indian Penal Code, all the accused except above referred Suresh are sentenced to undergo imprisonment till rising of the court and also directed to pay a fine of Rs.500/- each with default simple imprisonment for two weeks. For offence under Section 147 read with Section 149 of the Indian Penal Code, all the accused except the above referred Suresh is sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.1,000/- each with default simple imprisonment for one month. All the accused except above referred Suresh is sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.1,000/- each with default simple imprisonment for one month under Section 323 read with Section 149 of the Indian Penal Code. All the accused/revision petitioners including the above CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 10 referred Suresh are sentenced to undergo imprisonment till rising of the Court and to pay a fine of Rs.1000/- with default simple imprisonment for one month for an offence under Section 448 of IPC read with Section 149 of IPC. 8. In the case of Suresh, who is 4[th] revision petitioner in Cr.R.P. No.1905/2003, he is sentenced to undergo simple imprisonment for six months and to pay fine of Rs.5,000/- with default simple imprisonment for six months for an offence under Section 325 of the Indian Penal Code. Since sentenced for an offence under Section 325 of the Indian Penal Code, no separate sentence is awarded under Section 323 read with Section 149 of the Indian Penal Code. On other heads excluding one under Section 448 read with Section 149 of IPC i.e., Section 143 read with Section 149, Section 147 read with Section 149 and Section 341 read with Section 149, he is sentenced to undergo simple imprisonment for seven days under each head. Substantial sentence will run concurrently. CRL.R.P No.1905 of 2003 & CRL.R.P No. 2880 of 2006 11 9. Except 4[th] revision petitioner in Cr.R.P No.1905/2003 all the other revision petitioners and revision petitioner in Cr.R.P No.2880/2006 are hereby acquitted for an offence under Section 325 read with Section 149 of IPC. All the revision petitioners are acquitted for an offence under Section 148 read with Section 149 of IPC. If the fine amount is realised, Rs.15,000/- shall be paid to the defacto complainant as compensation under Section 357(1) of the Cr.P.C. With the above modification on the side of the sentence and conviction, these Cr.R.Ps. are partly allowed. Sd/- **K.P. JYOTHINDRANATH, JUDGE** //True copy// vgd/SKV PA To Judge