Mathai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 16TH DAY OF JANUARY 2014/26TH POUSHA, 1935** ## **Crl.Rev.Pet.No. 2109 of 2013 ()** **----------------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 606 OF 2011 of ADDITIONAL DISTRICT AND SESSIONS COURT, MUVATTUPUZHA DATED 26-09-2013** **AGAINST THE JUDGMENT IN C.C NO. 829 OF 2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MUVATUPUZHA DATED 30-09-2011** **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **MATHAI, AGED 51 YEARS, S/O. XAVIER, RESIDING AT THANDUMPURATH HOUSE, KAVANA KARA, MUVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADV. SRI.AJEESH S.BRITE** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MJL** ## **K. HARILAL, J.** ## **---------------------Crl.R.P. No.2109 of 2013** **------------------------------Dated this the 16[th] day of January, 2014** ## **ORDER** The revision petitioner is the accused in C.C No.829 of 2006 on the files of Judicial First Class Magistrate Court, Muvattupuzha. He was charge sheeted and tried for the offences punishable under Sections 323, 324 and 326 of the Indian Penal Code (for short the IPC). After trial, the learned Magistrate found the revision petitioner guilty of the offence under Section 326 of the IPC and acquitted of the offences under Sections 323 and 324 of the IPC. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of 10,000/- for the₹ offence under Section 326 of the Indian Penal Code. In default of payment of fine the accused/revision petitioner shall suffer further rigorous imprisonment for a period of six months. The entire fine amount if realised, shall be paid as compensation to PW2. **Crl.R.P. No.2109 of 2013** **2** Feeling aggrieved though he had preferred a Criminal Appeal No.606 of 2011 before the Additional District and Sessions Court, Muvattupuzha, the learned Sessions Judge, after re-appreciating the evidence on record confirm the verdict of guilty and conviction; but modified the sentence. The substantive sentence of imprisonment for a period of three years under Section 326 was reduced and modified to rigorous imprisonment for a period of one year. The default sentence was also reduced to two months. The order to pay the fine amount payable as compensation to the injured PW2 is sustained as such without any interference. This revision petition is filed challenging the concurrent findings of conviction and sentence imposed on the revision petitioner. 2. The prosecution case in brief is that the accused had enmity towards PW2 as PW2 had questioned the accused, when the accused caught hold of the neck of PW2's brother and assaulted him. **Crl.R.P. No.2109 of 2013** **3** With an intention to inflict grievous injuries upon PW2 at about 9.45 p.m. on 02/07/2006 the accused beat over the head of PW2 with M.O.1 handle of spade while he was standing on the rear side of the courtyard of the house bearing panchayat No.V/350 of Avoli grama panchayat, which belongs to one Vincent. As a result of the assault PW2 had sustained serious head injury and he had undergone treatment and admitted for 24 days as inpatient at Medical College hospital, Kolencherry. It is further alleged that PW2 is suffering from loss of memory following the injury sustained to his head. It is also alleged that PW3 was pulled down by the accused when she tried to prevent the accused from attacking PW2. Thus the accused allegedly committed offence punishable under Sections 323, 324 and 326 of the IPC. 3. To prove the prosecution case PW1 to PW10 were examined and Exts.P1 to P7 and MO1 were marked. The accused pleaded not guilty. But no **Crl.R.P. No.2109 of 2013** **4** evidence was adduced in defence except the evidence of DW1. 4. The learned counsel for the revision petitioner submits that the court below miserably failed to appreciate the facts and evidence in its correct perspective. The court below went wrong in disbelieve the evidence of PW1. There was a delay of one day in registering the FIR. The court below has failed to note that the cause of incident stated in the wound certificate was an alleged fall. PW2 is a habitual offender; but the accused had never been involved in any offence. Even if the prosecution case is admitted at its entirety, no offence is made out under Section 326 of the IPC. 5. The short question that arises for consideration in this petition is whether there is any illegality or impropriety in the findings of the impugned judgment. Put it differently, whether the prosecution has succeeded in proving the case beyond doubt. **Crl.R.P. No.2109 of 2013** **5** 6. Coming to the evidence, PWs 1 to 5 were examined as occurrence witnesses. The trial court observed that PW2 the injured had deposed in consonance with Ext.P1 FI statement. PW2 would swear that at about 9.45 pm on 02/07/2006, while he was walking through the rear side of the court yard of Mundakappara house, the accused beat on his head with handle of spade. When PW3 defended the accused from further attacking him, she was pulled down by the accused and he ran away from the place of occurrence. PW3 is the witness sighted by the prosecution to prove the said occurrence. Her evidence would disclose that at about 9.45 p.m. on 02/07/2006 while she was serving rice to the inmates of the Mundakappara house, she heard a sound from the rear side of the house. According to PW3, when she came out of the house, the accused was seen beating PW2 with a handle of spade. PW3 further stated that when she interfered in the incident she ## **Crl.R.P. No.2109 of 2013** **6** was pulled down by the accused and thereafter he ran away from the place of occurrence. Thus the evidence of PW2 is corroborated by the evidence of PW3, an independent witness. Further, the evidence of PWs 2 and 3 gets assurance from the evidence of PW 4 and 5 which would reveal that when they reached the rear side of the court-yard of Mundakappara Vincent, on hearing a hue and cry the accused was seen running away from the place of occurrence. According to them, they were informed by PW2 that the accused beat on his head with a handle of spade. The learned Magistrate who had an opportunity to witness the demeanour of the witness reposed confidence in the evidence given by PWs 2 to 5. The said evidence was again re-appreciated by the learned Sessions Judge and concurred with the findings of the trial court. 7. Further, the evidence of PWs 2 to 5 was supported by medical evidence. PW6 is the casualty medical officer of Medical College Hospital, **Crl.R.P. No.2109 of 2013 7** Kolencherry at the relevant time. His evidence would reveal that he examined PW2 at about 1.15 a.m on 03/07/2006 and issued Ext.P2 wound certificate noting the injury found over the body of PW2. As per Ext.P2 certificate, PW2 had sustained contusion left side of the scalp. The alleged cause for the injury as per Ext.P2 is “assault with a wooden piece at about 10.30 p.m. on 02/07/06”. 8. PW 7 is the consultant Neuro Surgeon attached to the Medical College Hospital, Kolenchery who issued Ext.P3 discharge summary in respect of PW2. According to PW7, C.T.scan of the head of the PW2 showed left temporo-parietal extradural hemetoma and pericisternal contusion. As per entries in Ext.P3 discharge summary, the PW2 had undergone inpatient treatment for a period from 03/07/2006 to 27/07/2006. 9. Further, the evidence of occurrence witnesses and medical evidence get supported from the Exts.P1 ## **Crl.R.P. No.2109 of 2013 8** to P7 prosecution documents prepared contemporaneously by PWs 7 to 10 coupled with Ext.P1 to Ext.P7. Thus the evidence of PW3 to PW5 would reveal that the accused is the person who inflicted injury upon the head of PW2 with MO1 handle of the spade. 10. The case of the accused is that PW2 sustained injury due to fall on a stone after consuming Alcohol at about 10.30 pm on 02/07/2006. But it is pertinent to note that in Ext.P2 wound certificate no where it is stated that the smell of alcohol was present in the breath of the patient when PW2 was brought to hospital. If the smell of alcohol was present in the breath of the patient definitely PW6 would have narrated that aspect in the wound certificate. Therefore, I concur with the findings of the court below rejecting the said contention. 11. Going by the judgment it could be seen that DW1 was examined to prove the defence contention ## **Crl.R.P. No.2109 of 2013 9** that the injury was caused by falling on a rock. Admittedly, DW1 is sister of the accused. The evidence of DW1 would reveal that she has deposed before the court with an ulterior motive to save her brother from punishment. In view of the medical evidence, it can be held that she had deposed with an ulterior motive to save her brother from punishment. The court below concurrently found that the evidence of DW1 cannot be relied on as the same is devoid of truth and credibility. I do not find any kind of perversity in the appreciation of the evidence of DW1. 12. PW6 during cross examination has stated that injury mentioned in Ext.P2 cannot be caused by falling on a rocky surface and that in such eventuality there could be associated injury also. He further stated in cross examination that if the patient had consumed alcohol at the time of his examination, that matter would have recorded in Ext.P2 certificate. 13. The evidence of PW7 consultant Neuro **Crl.R.P. No.2109 of 2013** **10** Surgeon of Medical College, would reveal that PW2 had sustained grievous head injury. PW7 had stated in cross examination that fall from a height on a hard surface can cause such an injury. But it may be noted that PW2 did not sustained any external injury over the scalp in the incident. As stated by PW6, Medical Officer, if PW2 had sustained injury due to fall on a stone, definitely there would have every chance to sustain some associated injury over his head. But no such injury was seen sustained by PW2. As rightly held by the court below, it is a matter of common knowledge that due to hit by a wooden piece over the head of a person, there was every chance to sustain internal injury to brain. 14. The learned counsel for the revision petitioner pointed out the entry in the discharge summary stating that the PW2 was brought to hospital with an alleged fall; but I am of the view that it cannot be taken as the evidence to prove the **Crl.R.P. No.2109 of 2013** **11** defence contention in view of Ext.P2 wound certificate which was prepared contemporaneously at the time of admitting the PW2 as an inpatient. The wound certificate is the authentic document which can be relied on to prove the nature of wound. Moreover, at the time when PW2 brought to hospital, he had transient loss of consciousness and vomiting. Even if, such a version was given to the doctor by the person who brought him to the hospital, it cannot be taken as a material to doubt prosecution case in view of the evidence of occurrence witness supported by other medical evidence. Moreover, in _**Sukhchain Singh v. State of Haryana**_ [2002 (5) SCC 100], the Apex Court held that recording the name of the assailants or holding an enquiry regarding the occurrence is neither a duty of the Doctor nor usually expected conduct from the Doctor at the time of examining an injured, when brought to casualty ward of the hospital for trauma case. Therefore, I find that the version **Crl.R.P. No.2109 of 2013** **12** given by the persons who brought the injured to the hospital to the Doctor as regards the cause of injury have no significance at all. Considering the evidence available on record, it could be seen that the accused, the injured and PWs.3 to 5 are relatives having close acquaintance. Therefore, it can be presumed that at the time when the injured was brought to hospital, the close relatives of both accused and injured might not have disclosed the true versions to the hospital. The oral evidence given by the Doctor supported by the nature of injury recorded would prevail over the cause of injury given by the person who brought him to hospital, particularly when the patient had loss of consciousness and vomiting. On an overall analysis of the evidence on record, I find that there is no illegality or impropriety in the impugned judgment under challenge. I do not find any kind of perversity in the appreciation of evidence, from which those findings have been arrived at. ## **Crl.R.P. No.2109 of 2013** ## **13** 15. The learned counsel for the revision petitioner drew my attention to Sec.320 of the Indian Penal Code and submits that even though he was admitted in the hospital as inpatient for a period of more than 24 days, it cannot be taken as an evidence to show that he had sustained any hurt which endangers life or which causes the sufferer to be during the spa of 20 days in severe bodily pain, or unable to follow his ordinary pursuits. But, coming to the medical evidence, it is evident that when he was brought to the hospital, he had transient loss of consciousness and admitted in the ICU unit for a period of 13 days and he was unconscious during that period. The damages caused to the brain was specifically deposed by PW7, the consultant Neuro Surgeon of Medical College Hospital, Kolencherry. His evidence would reveal that PW2 had sustained grievous head injury. It is stated in Ext.P3 discharge summary that the C.T scan of the head showed left **Crl.R.P. No.2109 of 2013 14** temporo-parietal extradural hemetoma with pericisternal contusion. He was admitted and emergency craniotomy EDH, evacuation was done under general anesthesia. Post operatively he was ventilated in CMV mode for 24 hrs and was managed with antioedema measures anticonvulsants, antibiotics and other supportive measures. Thus, the medical evidence unequivocally proved that the hurt caused to PW2 by the accused was one which endangers his life and which causes severe bodily pain and it could be reasonably presumed that he was unable to follow his ordinary pursuits during the period when he was hospitalised. 16. In view of the medical evidence, I am not inclined to accept the argument advanced by the learned counsel for the revision petitioner that the alleged hurt caused to PW2 could not come under the grievous hurt. Consequently, on an overall appreciation of evidence, I confirm the conviction **Crl.R.P. No.2109 of 2013** **15** entered by the courts below concurrently. 17. Coming to sentence, the learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner was disproportionate with the nature and gravity of the offence and it is too excessive and harsh. At the time of occurrence, the accused was aged 53 years and both the accused and PW2 are close relatives. The learned counsel urged for reducing the substantive sentence of imprisonment. 18. Having regard to the aggravating and mitigating circumstances, I am inclined to modify the substantive sentence of imprisonment; but, in lieu of that, the accused has to give adequate compensation to PW2 who had unconsciously undergone treatment for 13 days in the ICU unit, that too in a private medical college. Certainly, he might have spent considerable amount for his treatment. 19. In supersession of the sentence imposed by **Crl.R.P. No.2109 of 2013** **16** the trial court and modified by the appellate court, the revision petitioner is sentenced to undergo simple imprisonment for three months and to pay a compensation of 50,000/- to PW2 within a period of₹ two months from today under Sec.357(3) of the Cr.P.C, for the offence under Sec.326 of the IPC. In default, the revision petitioner shall undergo simple imprisonment for six months. He shall appear before the trial court to receive the substantive sentence of imprisonment on or before 17[th] March, 2014, with sufficient proof to show the payment of compensation. He is also at liberty to deposit the amount of compensation in the trial court and in that case, the same shall be given to PW2. This revision petition is disposed of accordingly. Sd/ **-K.HARILAL JUDGE.** MJL/STU