KANDIYIL ANEESH and V.C.BABU v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935** **Crl.Rev.Pet.No. 2154 of 2012 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 35/2006 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY DATED 06-07-2012** **AGAINST THE JUDGMENT IN CC 268/2002 of J.M.F.C.,THALASSERY DATED 07-01-2006** **REVN.PETITIONER/APPELLANT/ACCUSED : ------------------------------------** **1. KANDIYIL ANEESH, AGED 27 YEARS, S/O. BHARATHAN, KANDIYIL HOUSE, CHOKLI AMSOM, OLAVILAM, THALASSERI TALUK.** **2. V.C.BABU, AGED 38 YEARS, S/O. KELAPPAN, VADAKKE CHENGANAZHIYIL HOUSE, CHOKLI AMSOM, OLAVILAM, THALASSERI TALUK.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL)** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT :** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 2154 of 2012 -----------------------------------------------------Dated this the 22[nd] day of October, 2013** ## **ORDER** The revision petitioners are the 1[st] and 2[nd] accused in C.C. No.268/02 on the files of the Judicial First Class Magistrate's Court, Thalassery, as well as in Crl. Appeal No.35/06 on the files of the Court of Session, Thalassery. They were prosecuted for the offences punishable under Secs.143, 147, 148, 452, 341, 323 and 324 read with Sec.149 of the Indian Penal Code. After trial, the learned Magistrate convicted the 1[st] accused under Sec.324 of the IPC and the 2[nd] accused under Sec.323 of the IPC and sentenced thereunder; but acquitted of the offences under Secs.143, 147, 148, 452 and 341 read with Sec.149 of the IPC. The 1[st] revision petitioner/the 1[st] accused is sentenced to undergo simple imprisonment for a term of one year and also to pay a fine of `5,000/- under Sec.324 of the IPC and Crl.R.P.No.2154 of 2012 **==> picture [7 x 9] intentionally omitted <==** the 2[nd] revision petitioner/the 2[nd] accused is sentenced to undergo simple imprisonment for a term of four months and also to pay a fine of `1,000/- under Sec.323 of the IPC. In default of payment of fine, the 1[st] revision petitioner shall undergo simple imprisonment for a further period of six months and the 2[nd] revision petitioner shall undergo simple imprisonment for a further period of three months. Though they had preferred Crl. Appeal No.35/06 before the Court of Session, Thalassery, after re-appreciating the entire evidence on record, the learned Sessions Judge also confirmed the verdict of guilty and conviction and sentence thereunder. This revision petition is filed challenging the concurrent findings of conviction and sentence on various grounds. 2. The prosecution case is that on 1/3/02 at 6 p.m. all the accused including the accused Nos.3 to 6, in furtherance of their common object of causing bodily assault to P.W.1, formed into an unlawful assembly, armed with deadly weapons such as wooden stick and sword and Crl.R.P.No.2154 of 2012 **==> picture [7 x 10] intentionally omitted <==** committed rioting by trespassing into the house of P.Ws.1 and 2. The accused beat P.W.1 with stick and inflicted injury on his left thigh with a sword. P.W.2 was pushed on the ground and she sustained injury on her head. Thus, the accused which includes A1 and A2 are alleged to have committed the above said offences. 3. The revision petitioners pleaded not guilty to the charge before the trial court. The prosecution examined P.Ws.1 to 9 and Exts.P1 to P6 were marked. No evidence either oral or documentary was adduced in defence. 4. The learned counsel for the revision petitioners submits that the courts below miserably failed to evaluate the evidence on record in its correct perspective. The courts below have discarded the defence version put forward by the accused totally. It is pertinent to note that P.Ws.1 to 3 had expressly stated that P.W.1 had sustained injuries on the thigh; but P.W.2 had categorically stated that P.W.1 had sustained injuries on his hip. By no stretch of imagination can the court below overlook the evidence on Crl.R.P.No.2154 of 2012 **==> picture [7 x 9] intentionally omitted <==** record and adhere to an interpretation of convenience that the said evidence of P.Ws.1 and 2 does not make any difference. Similarly, there is no recovery of the weapon alleged to have have been used to commit the offence. The court below has not considered the discrepancy in the evidence of P.Ws.1, 2 and 3. The learned counsel submits that the evidence of P.Ws.1, 2 and 3 are mutually destructive as well as contradictory. It is worthwhile to note that as per Ext.P4 wound certificate injuries were alleged to have been caused by a knife. But the prosecution case pertains to the injuries caused by sword. The court below has not considered the said discrepancy in its correct perspective. These are the arguments advanced by the learned counsel for the revision petitioners. 5. Going by the evidence, it could be seen that P.Ws.1 to 3 were examined as occurrence witnesses and among them, P.Ws.1 and 2 are the injured. The evidence of the occurrence witnesses P.Ws.1 to 3 is that due to political enmity the revision petitioners along with other accused Crl.R.P.No.2154 of 2012 5 trespassed into the verandah of the house of P.W.1 and the 2[nd] accused pushed P.W.1 out of the house, who was standing in the verandah and the 4[th] accused beat him with stick and the 1[st] accused inflicted injury on the left leg with sword. On seeing P.W.1 being attacked, P.W.2, his mother came and tried to stop the accused and at that time the 2[nd] accused pushed her down and she sustained injury on her head. P.W.3, the sister of P.W.1, was witnessing this occurrence which took place at the verandah of their house. P.W.4, a neighbour, who came to the scene immediately after the occurrence, saw P.Ws.1 and 2 lying down and the accused going out of the house. After evaluating the evidence of P.Ws.1 to 4, the trial court found that the overt act committed by the revision petitioners on the body of the injured, P.Ws.1 and 2, are proved beyond reasonable doubt and the evidence of P.Ws.1 to 3 is corroborated each other and nothing brought out to discredit the evidence of P.Ws.1 to 3 in cross-examination. Further, the evidence of P.Ws.1 to 3 gets assurance from the evidence of P.W.4, though he Crl.R.P.No.2154 of 2012 **==> picture [7 x 10] intentionally omitted <==** was not an eye witness to the overt act. P.W.4 deposed that when he came to the scene immediately after the occurrence, he saw P.Ws.1 and 2 lying down and the accused going out of the house. The said evidence was reappreciated by the appellate court and confirmed the findings of the trial court. The contention raised before the trial court as well as the appellate court was that the evidence of P.Ws.1 to 3 is not reliable as they are relatives and they interested to see that the accused are convicted. The alleged reliability of the evidence of P.Ws.1 to 3 on the ground of close relationship was considered by the appellate court in the light of the decisions reported in **Dalip Singh and others v. The State of Punjab** (AIR 1953 SC 364); **Muhammed v. State of Kerala** (1999 (3) KLT 948) and **Sankarlal and Others v. State of Madhya Pradesh** (1996 SCC (Cri) 740), wherein the Supreme Court held that it is a well settled proposition that the evidence of eye witnesses who are said to be close relatives, cannot be discarded only on the ground that they Crl.R.P.No.2154 of 2012 7 are the relatives of the injured. This court also has time and again held that in such a situation all that is needed is that the court must put itself on guard and the evidence of relative witnesses must be appreciated carefully and cautiously. 6. In view of the above principle, the appellate court also re-appreciated the findings of trial court regarding the reliability of the witnesses who are close relatives. After re-appreciating the evidence, the appellate court also reposed the confidence in the evidence of PWs.1 to 3. I do not find out any kind of perversity in the appreciation of evidence, more specifically, in view of the decisions referred above. Coming to the contentions raised in the revision petition, regarding the place of injury, Ext.P4 wound certificate of PW1 shows that the Doctor has noted injury at his left hip. He has noted incised wound 3 x 1 x 1 cm. over the left hip. He has also noted a linear abrasion on the back of neck of PW1. But PWs. 1 and 3 testified before the Court that the injury sustained to PW1 was on the left Crl.R.P.No.2154 of 2012 **==> picture [7 x 10] intentionally omitted <==** thigh. Only PW2, the mother testified that PW1 sustained injury on his left hip. Of course, thigh and hip are two different parts of human body. But the court below arrived on a finding that even if these two parts are different, it is to be remembered that the thigh ends at the hip of a person. So, if an injury is caused towards the end of the thigh near the hip, the injured or the person who has witnessed the overt act may refer it as thigh or hip. So, it can be safely inferred that an injury caused to PW1 near the hip on his thigh, otherwise the Doctor would not have noted the injury as on the hip. According to my opinion, the said discrepancy will not render the evidence of PWs.1 and 2 inadmissible nor persuades this Court also to view the evidence with suspicion and the said discrepancy is also a minor discrepancy and it will not affect the credibility of their testimony, in view of the wound certificate issued by PW4. 7. Another contention raised by the learned counsel for the revision petitioners is that the evidence tendered by Crl.R.P.No.2154 of 2012 **==> picture [7 x 10] intentionally omitted <==** the witnesses and the prosecution charge is that, A1 has used a sword but according to Ext.P4 wound certificate, the weapon used, as narrated to the Doctor is a knife. I do not find this also a serious defect which will render the prosecution case . Whether it is a knife or sword, the injury was caused by a sharp-edged weapon. One may described it as the sword and the other may describe it as a knife. But, considering the wound certificate, stating the incised wound, the said wound can be caused either by the sword or by the knife. If that be so, the discrepancy of the weapon used in the statement given to the Doctor immediately after the occurrence does not make the evidence totally incredible and unreliable. Thus, I find that subtractum of the prosecution case is proved beyond doubt and the court below concurrently found that the evidence available on record particularly the evidence of PW1 to 4 are sufficient to bring home guilt of the accused. I also concur with the said findings. 8. Considering the limited jurisdiction under Sec.397 ## Crl.R.P.No.2154 of 2012 **==> picture [13 x 10] intentionally omitted <==** and 401 of the Cr.P.C, I do not find any other material to arrive at a finding contrary to the findings of the court below. Consequently, I am inclined to confirm the conviction and I do so. 9. Coming to sentence, the learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioners is disproportionate with the nature and gravity of the offence and the same is excessive and harsh. The learned counsel for the revision petitioners submits that the 1[st] accused was aged only 23 at the time of occurrence and the 2[nd] accused was aged 35 years at that time. The learned counsel for the revision petitioners prayed for a lenient view and prayed for a further opportunity to lead a refined life. Prison term can be imposed to secure the interest of deterrence. But, deterrence does not depend upon solely on the length of the term that the offendor spends behind the Bar. At the same time, by the passage of time, the concept of victimology is getting prominence in criminal administration justice. Crl.R.P.No.2154 of 2012 **==> picture [13 x 9] intentionally omitted <==** Certainly, the accused who have committed the offence on the body of the victims are liable to compensate the victim in terms of compensation also. At the same time, misplaced sympathy cannot also have a place in the criminal adjudicatory process. So, after balancing the above aspects, I am inclined to reduce the prison term but the revision petitioners are liable to give adequate compensation to PWs.1 and 2 who are the victims. 10. In supersession of the sentence imposed by the trial court and confirmed by the appellate court, the 1[st] revision petitioner is sentenced to undergo simple imprisonment for six months and to pay a compensation of ₹ 30,000/- to PW1 under Sec.357(3) of the Cr.P.C. and in default, he shall undergo simple imprisonment for three months for the offence punishable under Sec.324 of the IPC. The 2[nd] revision petitioner is sentenced to undergo simple imprisonment for two months and to pay a compensation of ₹ 15,000/- to PW2 under Sec. 357(3) of the Cr.P.C for the offence under Sec.323 of the IPC. In default, to undergo Crl.R.P.No.2154 of 2012 **==> picture [13 x 9] intentionally omitted <==** simple imprisonment for one month. Compensation can be paid directly or through court, by depositing in court. Notice shall be issued to PWs.1 and 2 for receiving the same, in case of deposit. This revision petition is allowed in part. **K.HARILAL, JUDGE.** Nan/stu //True copy// P.A to Judge