KUMARAN P.K v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943 CRL.REV.PET NO. 822 OF 2006** **AGAINST THE JUDGMENT IN CRA 574/2005 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** **SC 58/2000 OF PRINCIPAL SUB COURT,NORTH PARAVUR, ERNAKULAM REVISION PETITIONER/APPELLANT/ACCUSED:** KUMARAN P.K, AGED 56 YEARS, S/O. KORAMAN, PERUVANKAMOLATH VEETTIL,, METHALA KARA, ASAMANNOOR VILLAGE. BY ADV SRI.K.RAMAKUMAR (SR.) ## **RESPONDENT/COMPLAINANT/STATE:** STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,, KURUPPAMPADY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. SRI SANAL P RAJ,PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON 22.11.2021 DELIVERED THE FOLLOWING: Crl.R.P No.822/2006 ## -:2:- ## O R D E R Dated this the 22[nd] day of November, 2021 This revision petition has been directed against the judgment dated 25/1/2006 in Crl.Appeal No.574/2005 on the file of the Sessions Court, Ernakulam (for short, 'the appellate Court') confirming the judgment dated 29/6/2005 in SC No.58/2000 on the file of the Principal and Sessions Court, North Paravur (for short, 'the trial court') 2. The revision petitioner is the accused. He faced trial for an offence punishable under Sections 509, 324 and 307 of IPC. 3. The prosecution case in short is that on 12/4/1999, when PW2 was taking bath in a canal at Methala in the early hours of the morning, the revision petitioner who was residing nearby made some obscene gestures with an intention to insult her modesty. PW2 informed the incident to PW1 who questioned the accused. Thereupon the accused assaulted PW1 with an iron rod on his head, hands and other parts of the body whereby he Crl.R.P No.822/2006 -:3:- sustained fracture. On seeing the incident, mother of PW1 intervened and she was also beaten up by the accused. 4. Immediately after the incident, PW1 was taken to Sanjoe Hospital, Perumbavoor. PW11 went to the hospital and recorded the statement of PW1 which was marked as Ext.P1. On the basis of Ext.P1, PW12 registered crime against the accused under Sections 509, 324 and 307 of IPC. PW13, CI of Police, Kuruppampady took up the investigation on 25/6/1999, completed the investigation and filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case to stand trail at the Court of Sessions. 5. The accused appeared at the trial Court. After hearing both sides, the trial Court framed charge against the accused under Sections 509, 324 and 307 of IPC. The charge was read over and explained to the accused who pleaded not guilty. 6. The prosecution examined PWs 1 to 13 and marked Exts.P1 to P9. MO1 was identified. On the side of defence, DW1 was examined and Exts.D1 to D4 were marked. Considering the evidence on record, the trial Court found the accused guilty under Crl.R.P No.822/2006 -:4:- Sections 509, 324 and 307 of IPC and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of `1,00,000/-, in default to suffer simple imprisonment for one year for the offence u/s 307 IPC, rigorous imprisonment for three years for the offence u/s 324 of IPC and rigorous imprisonment for one year for the offence u/s 509 of IPC. In appeal, the appellate Court found that no offence u/s 307 of IPC was made out and accordingly the conviction u/s 307 was converted to S.326 of IPC. The accused was sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of `50,000/-, in default to suffer rigorous imprisonment for a further period of three months for the offence u/s 326 of IPC. Aggrieved by the conviction and sentence passed by the courts below, the accused preferred this revision. 7. I have heard Sri.K.Ramakumar, the learned Senior Counsel for the revision petitioner and Sri.Sanal P.Raj, the learned Public Prosecutor. 8. The learned Senior Counsel appearing for the revision petitioner impeached the finding of the Court below on appreciation of evidence and resultant finding as to the guilt. The Crl.R.P No.822/2006 -:5:- learned Senior Counsel submitted that the prosecution has miserably failed to prove the recovery of MO1 weapon allegedly used for the commission of the offence and in the absence of proof about the weapon used for the commission of the offence, the conviction u/s 326 of IPC cannot be sustained. The learned counsel further submitted that PW1, PW2 and PW4 whose evidence were heavily relied on by the Court below are interested witnesses and they could not have been relied on. On the other hand, the learned Public Prosecutor supported the findings and verdict handed down by the Court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt. 9. The prosecution mainly relied on the evidence of PW1, PW2, PW4, PW5 and PW6, Exts.P2, P3 as well as recovery of MO1 iron rod consequent to the confession statement of the accused u/s 27 of the Indian Evidence Act to prove the incident and to fix the culpability on the accused. PW1 is the injured. He is the brother of PW2. The incident pertaining to the assault on PW1 was preceded by an incident of insulting the modesty of PW2 by the accused. PW2 deposed that at 6.00 a.m on 12/4/1999, while Crl.R.P No.822/2006 -:6:- she was taking bath in the canal in front of her house, the accused came there, showered obscene words, lifted his dhoti and exhibited his private parts to her. She further deposed that she left the place without completing the bath and told the incident to her brother, PW1. She further deposed that then she along with PW1 went to the canal bund in search of the accused to ask about the incident. When PW1 questioned the accused about the incident, he assaulted him with MO1 iron rod on his head, hands and other parts of his body uttering that “ _I will kill you_ ”. She further deposed that her mother came to the spot and the accused beat her as well. PW1 also gave evidence in tune with the evidence given by PW2. He specifically deposed that when he along with PW2 went and met the accused to question the previous incident, he was brutally assaulted by the accused with MO1 iron rod. PW1 and PW2 were cross-examined at length by the counsel for the accused. But nothing tangible could be extracted from their evidence to create any shadow of doubt that they are truthful witnesses. They clearly deposed that the accused assaulted PW1 and inflicted injury on his head, hands and other parts of his body with iron rod. PW2 further deposed Crl.R.P No.822/2006 -:7:- that the accused made obscene gestures against her with intention to insult her modesty. PWs1 and 2 gave reliable, consistent and credible version of the crime and their evidence inspires confidence. They clearly deposed the manner in which the accused assaulted and attacked PW1, the nature of weapon used by him and parts of the body of PW1 whereupon the injuries were inflicted by the accused. PWs 1 and 2 identified MO1 as the weapon used for the commission of the offence. They have also identified the accused. Therefore, I hold that the evidence of PWs 1 and 2 could be safely relied on to prove the incident and to fix the culpability on the accused. PW4 is another witness who supported the prosecution. She deposed that she used to take bath at the place of occurrence in morning hours on almost all days. She further deposed that while she was taking her bath in the morning on the date of incident, PW2 came there to take her bath. She also deposed that she saw the accused also at the place of the incident. 10. The evidence of ocular witnesses gets corroboration from the medical evidence of PW5 and PW6. PW5 is the doctor who examined PW1 immediately after the incident and issued Crl.R.P No.822/2006 ## -:8:- Ext.P2 wound certificate. PW6 is the doctor who treated PW1 at the hospital and issued Ext.P3 discharge certificate. PW5 on his examination found the injuries on the body of the PW1 and recorded it in the wound certificate. The evidence of PW6 coupled with PW5 would show that there is linear fracture on the leg frontal bone of the scalp of PW1. PW5 deposed that the injuries are possible with MO1 weapon. Thus, the medical evidence also supports the prosecution case. 11. The next piece of evidence relied upon by the prosecution is the recovery of MO1 weapon consequent to the disclosure statement made by the accused while in police custody. To prove the recovery, the prosecution relied on the evidence of PW13, the police officer, who discovered MO1 consequent to the disclosure statement of the accused as well as Ext.P5(a), the portion of the statement of the accused which led to the recovery. The learned Senior Counsel for the revision petitioner vehemently argued that two independent witnesses cited by the prosecution to prove the recovery did not support the prosecution case and, hence, relying on the interested testimony of PW13 alone, the recovery cannot be said to be Crl.R.P No.822/2006 -:9:- proved legally. The learned Senior Counsel further submitted that the recovery is from an open place. I cannot subscribe to the said argument. It is true that two independent witnesses to the recovery did not support the prosecution case. For the simple reason that they did not support the prosecution, the evidence of PW13 cannot be discarded. PW13 clearly gave evidence that after the arrest of the accused, he gave confession statement that if he was taken to the place where he concealed the weapon used for the commission of offence, he will show the weapon as well as the place, and based on the said statement, as led by the accused, he along with the accused went to the place where MO1 weapon was stated to be thrown and when they reached the said place, the accused showed him MO1 weapon which was seized as per Ext.P5 mahazar. MO1 weapon was identified by PW13. There is absolutely no serious challenge against this evidence given by PW13. I am of the view that even in the absence of the evidence of independent witnesses, the recovery stands proved through the evidence of PW13. 12. It is well settled that the revisional jurisdiction under Sections 397 and 401 Cr.P.C was to confer power upon superior Crl.R.P No.822/2006 -:10:- criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The Apex Court in _**State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and others**_ [(2004) 7 SCC 659] has held that while exercising the revisional powers under Section 397 r/w 401 of the Code of Criminal Procedure, the court is required to find out if there is any illegality or impropriety in the findings of the trial court and the appellate court warranting interference and it is not open to the High Court to exercise the revisional power as the second appellate forum. In _**Shlok Bhardwaj v. Runika Bhardwarj and others**_ [(2015) 2 SCC 721], it was held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence 13. Since there are concurrent findings of the two courts below, this Court would be circumspect in invoking the revisional powers under S.397 r/w S.401 of the Code of Criminal Procedure. Crl.R.P No.822/2006 -:11:- It is only if the decision rendered by the two courts below can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. I have carefully gone through the entire records, evidence, proceedings and the judgments of the two courts below. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with the courts. The sentence passed by the courts below also appears to be reasonable. There is no merit in the Criminal Revision Petition and accordingly it stands dismissed. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp**