Padmalayan and Rajendran v Saras an and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934** **Crl.Rev.Pet.No. 1831 of 2004 ( )** **-------------------------------CRA.12/2001 of I ADL.D.C., TRIVANDRUM CC.334/1996 of J.M.F.C.,VARKALA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED BNOS 1 AND 3.:** **------------------------------------------------------** **1. PADMALAYAN, S/O.GOPALAN, AMBIKABHAVAN, KAVALAYOOR, MANAMBOOR.** **2. RAJENDRAN, S/O.REGHUNATHAN, KANAVILA** - **VEEDU, VADASSERYKONAM, OTTOOR VILLAGE.** **BY ADVS.SRI.P.B.ASOKAN SRI.SANU MATHEW SRI.SHERRY J. THOMAS** **COMPLAINANT(S)/COMPLAINANT AND STATE.:** **--------------------------------------** **1. SARASAN,S/O.GOPALAN, SARAN NIVAS,** - **MAVALAYOOR DESOM, MANAMBOOR VILLAGE.** **2. STATE OF KERALA, REP. BY THE** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.R.ANILKUMAR** **R1 BY ADV. SRI.P.BANI** **R2 BY ADV. PUBLIC PROSECUTOR SRI.BIJU MEENATOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.R.P.No. 1831/2012** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **Annexure 1. COPY OF THE JUDGMENT IN C.C.NO.295/95 OF THE JFCM COURT, VARKALA.** **sdk+** **///True copy///** **P.A. to Judge** S.SIRI JAGAN, J. ================== Crl.R.P.No. 1831 of 2004 ================== Dated this the 11[th] day of October, 2012 O R D E R The petitioners are accused Nos.1 and 3 in C.C.No. 334/1996 before the Judicial First Class Magistrate's Court, Varkala. They were prosecuted under Sections 141, 142, 143, 148, 149, 307, 324 and 379 read with Section 34 of the Indian Penal Code. The prosecution was initiated on a private complaint filed by the 1[st] respondent herein. 2. The allegations in the complaint were as follows:- On 13.1.1995 at about 9.a.m., while the 1[st] respondent was doing work along with his employees in the coir industry in his property, the 2[nd] accused came there and then left immediately. After sometime an Ambassador car bearing No.KL7/D-9734 driven by the 5[th] accused came there and accused Nos.1, 3, 4 and 5 came out of the car with weapons. There was a sword in the hands of 1[st] accused. The 3[rd] accused was holding an iron rod and accused Nos.4 and 5 were holding cudgels. The 1[st] accused exhorted the 3[rd] accused to kill PW1 telling that he is the person concerned and thereupon the 3[rd] accused beat PW1's head with Cr.R.P.1831/04 - : 2 :- the iron rod. The 1[st] respondent obstructed the attack by his left hand and the blow fell on his head after touching his left finger. He fell down and accused Nos. 4 and 5 beat indiscriminately on several parts of his body with cudgels in their hands and he sustained injuries and pain. 3. The Magistrate found accused Nos.1 and 3 guilty of the offence under Section 324 read with Section 34 of the IPC. The case against accused Nos.4 and 5 was refiled since they were absconding. No charge was framed against the 2[nd] accused. The Magistrate sentenced accused Nos.1 and 3 to undergo simple imprisonment for two years under Section 324 of the IPC read with Section 34 of the IPC. The petitioners filed Criminal Appeal No.12/2001 before the 1[st] Additional Sessions Judge, Thiruvananthapuram. The Sessions Judge confirmed the conviction, but reduced the substantive sentence to simple imprisonment for one year. The petitioners were directed to pay ` 10,000/- each to PW1 with a default sentence of simple imprisonment for six months' each. The petitioners are challenging the judgments of the courts below. 4. The learned counsel for the petitioners raises two Cr.R.P.1831/04 - : 3 :- contentions. The first is that in this case, apart from the complaint case at the instance of the 1[st] respondent, the Police had also registered a case, which was tried as C.C.No. 297/1995. According to the petitioners, since in respect of the same incident, there were a complaint case and a police case, the Magistrate ought to have followed the procedure prescribed under Section 210 of the Cr.P.C. by jointly trying the two, which has not been done in this case. Therefore, the petitioners are seriously prejudiced, is their contention. It is also submitted that in C.C.No.No.297/1995 the petitioners, who were the accused, were acquitted. According to the learned counsel for the petitioners, the procedure followed by the Magistrate is totally unsustainable and consequently, the petitioners are entitled to acquittal. The petitioners rely on the following decisions: 1. **Raghubans Dubey v. State of Kerala** , 1967 SC 1167 (V54 C 243), 2. **Joseph v. Joseph** , 1982 Crl.L.J. 595, 3. **Natesan v. Peethambaran & others** , 1984 KLT 116(FB), 4. **Harjinder Singh v. State of Punjab** , AIR 1985 SC 404, 5. **Mani v. Swaminathan** , 1986 KLT 170, 6. **State of Karnataka v. S.Dhandapani Modaliar** , 1992 Cr.R.P.1831/04 - : 4 :- Crl.L.J 24, 7. **Balbir v. State of Haryana** , AIR 2000 SC 10, 8. **Peter v. Kurian** , 1994 (1) KLT 17, 9. **Sankara Moitra v. Sadhna Das and another** , (2006) 4 SCC 584, and 10. **Dilawar Singh v. State of Delhi** , (2007) 12 SCC 641. The petitioners submit that in rejecting that contention of the petitioners, the Magistrate went wrong in relying on the decision of this Court in **Mani's case** (supra). According to the petitioners, the procedure laid down in the decision in **Mani's case** (supra) could have been followed only in a case where the allegation in the police case is totally contradictory to the allegation in the complaint case. In this case there is no such contradiction and, therefore, the procedure under Section 210 ought to have been followed and the two cases should have been jointly tried, is the contention. 5. The second contention is that the Magistrate has, without examining the doctor, who proved the wound certificate in evidence under Section 244, relied upon the same without giving the petitioners an opportunity to cross-examine him as prescribed under Section 246(4) of the Cr.P.C. Since the decision Cr.R.P.1831/04 - : 5 :- of the Magistrate is based on the evidence of PW5, who was not examined during the trial the conviction is vitiated, is the contention. 6. On the other hand, the learned Public Prosecutor would contend that the Magistrate has followed the procedure prescribed by the Supreme Court and this Court. When there is a police case and a complaint case on the same incident, the procedure to be followed has been laid down in the decision of the Supreme Court in **Harjinder Singh's case** (supra), on the basis of which, this Court has rendered the direction in **Mani's case** (supra). In this case, in the complaint case, there were five accused, whereas in the police case there were only two accused. There is material difference in the allegation in the police complaint and the complaint case. Therefore, what the Magistrate could have done is to follow the procedure prescribed in the **Mani's case** (supra), which has been done in this case, is the contention of the learned Public Prosecutor. 7. As far as the second contention is concerned, the learned Public Prosecutor would contend that even if the Cr.R.P.1831/04 - : 6 :- evidence of the doctor in proceedings under Section 244 cannot be relied upon, there is more than sufficient evidence available to convict the petitioners. Therefore, the failure to give the petitioners an opportunity to cross-examine PW5 under Section 246(4) does not in any way affect the conviction entered is the contention. 8. In answer to the same, the learned counsel for the petitioners disputes that the allegations in the police complaint and the complaint case are different. He further submits that the evidence of PWs 1 to 4 are interested testimonies insofar as PW1 is the alleged injured person and PWs 2 to 4 are employees of PW1, who can only be expected to give evidence in support of the case of PW1, who is the complainant. Therefore, without corroboration by evidence of PW5, the petitioners could not have been found guilty on the basis of the evidence of PWs 1 to 4 is the contention raised. 9. I have considered the rival contentions in detail. 10. The first contention to be considered is as to whether there is a mistrial by the the Magistrate in following the procedure adopted by him. What he has done is to try the police Cr.R.P.1831/04 - : 7 :- case and the complaint case one after the other and to pass separate judgments simultaneously. That is the procedure prescribed by the Supreme Court in **Harjinder Singh's case** (supra) as well as in **Mani's case** (supra) of this Court. Of course the learned counsel for the petitioners would vehemently contend that that procedure can be followed only when the allegations in the two cases are mutually contradictory. He points out that in **Harjinder Singh's case** (supra), a witness in one case became the accused in the other case and that is why, the Supreme Court has held so. For appreciating this contention, it is necessary to consider the allegations in the police case and the complaint case. The judgment in the police case has been produced by the petitioners as Annexure 1 in this Criminal Revision Petition. The allegations therein are as follows: “The accused No.1 and 2, they were in inimical terms with CW1, on 13.1.95 at 9 AM trespassed into the working place of CW1 at Kavalayoor Desom and attacked CW1 with stem of Konna and caused hurt to him. Subsequently, accused attacked CW2 to 7 who are workers of CW1. The accused No.1 and 2 committed with the offence with common intention, they were committed the aforesaid offences.” In that case, only the petitioners in this Criminal Revision Petition were the accused. But in the complaint case, there were five accused. In the police case the allegation was that the Cr.R.P.1831/04 - : 8 :- petitioners attacked the 1[st] respondent herein with the stem of a konna and caused hurt to him and subsequently, the accused attacked CWs 2 to 7, who were workers of CW1. But, the allegation in the complaint case is that the four persons at the instance of the 1[st] accused and his wife, who was the 2[nd] accused, came in an Ambassador car and the 1[st] accused had a sword with him. The 3[rd] accused was holding an iron rod and accused Nos. 4 and 5 were holding cudgels. Therefore, I am of opinion that the 1[st] respondent would have been seriously prejudiced if both the cases were jointly tried, insofar as if they were jointly tried, both the cases would have ended in acquittal since the allegations are totally different in material particulars. As such, I am of opinion that the procedure to be followed is the one prescribed by this Court in **Mani's case** (supra) following the decision of the Supreme Court in **Harjinder Singh's case** (supra). It is not disputed before me that the said procedure has been strictly followed. In view of the said findings, I do not find any merit in the first contention of the petitioners. 11. Now I shall come to the second contention. Admittedly, PW5, the doctor, who proved the wound certificate, Cr.R.P.1831/04 - : 9 :- was originally examined in proceedings under Section 244. Of course, the petitioners had cross examined him at that time. But, he was not examined during the trial because his presence could not be procured without delay as the notices issued to him returned unserved. Section 246 of the Criminal Procedure Code reads thus: "246. **procedure where accused is not discharged.-** (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination if any, they shall also be discharged." In view of the said Section, it is very much doubtful whether Cr.R.P.1831/04 - : 10 :- even for corroboration, the evidence of PW5 in proceedings under Section 244 could have been relied upon without examining him and giving the petitioners opportunity to cross examine him in the trial in view of Section 246(4). Therefore, I went through the other evidence available to decide whether, without the evidence of PW5, the petitioners could have been convicted. I have gone through the evidence of PWs 1 to 4. All of them deposed in terms of the complainant's case. All of them were extensively cross-examined. They withstood the cross examination admirably. No contradiction whatsoever could be brought out in the cross-examination. I do not find any merit in the contention of the petitioners that they are interested witnesses. Of course, PWs 2 to 4 are employees of PW1. But, because of that alone, they do not become interested witnesses as such. Apart from that, they also suffered injuries in the incident. There is no law, which stipulates that the deposition of injured witnesses cannot be relied upon for conviction without any corroboration, if their evidence is cogent and convincing. On going through the evidence of PWs 1 to 4, I find that their evidence is very cogent and convincing. Therefore, I do not find Cr.R.P.1831/04 - : 11 :- any perversity in the appreciation of evidence by the lower courts. It is settled law that in proceedings under Sections 357 and 401 of the Criminal Procedure Code, I cannot interfere with the judgments of the lower courts unless the appreciation of evidence by the lower courts is demonstrably perverse. There is absolutely nothing perverse in the appreciation of evidence by the lower courts. Therefore, I do not find any merit in the challenge against the conviction of the petitioners. 12. The learned counsel for the petitioners makes a fervent plea for reducing the sentence. After considering the seriousness of the offences committed by the petitioners, I do not think that they deserve any further mercy than what has been shown by the appellate court. Therefore, I am not inclined to interfere with the punishment as well. In the above circumstances, this Criminal Revision Petition is dismissed. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge Cr.R.P.1831/04 - : 12 :-