POCKER, S/O AYAMMED; MOIDEEN, S/O POCKER v. THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 28TH DAY OF MAY 2013/7TH JYAISHTA 1935** **Crl.Rev.Pet.No. 871 of 2002 ( ) --------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CRL.A.NO.146/1997 OF SESSIONS COURT,MANJERI** **...** **AGAINST THE ORDER/JUDGMENT IN CC.NO. 704/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,MALAPPURAM** **.....** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED::** **------------------------------------------------------------------------------** **1. POCKER, S/O. AYAMMED, KOTTAKKAL, MALAPPURAM DISTRICT.** **2. MOIDEEN, S/O. POCKER, KOTTAKKAL, MALAPPURAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS/STATE & COMPLAINANT::** **-------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **2. THE SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION, KOTTAKKAL, MALAPPURAM DISTRICT.** ## **R1 & R2 BY PUBLIC PROSECUTOR SMT. M.MADHUBAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2013, THE COURT ON 28/05/2013 PASSED THE FOLLOWING:** **Kss** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.871 of 2002 ---------------------------------------------Dated this the 28[th] day of May, 2013 ## **ORDER** Revision petitioners were convicted by the trial court U/Ss.447, 324 and 326 r/w 34 IPC and sentenced to undergo simple imprisonment for different periods and also directed to pay fine with a default sentence of imprisonment. They were acquitted for the offence under Section 323 IPC. The substantive sentences were ordered to run concurrently. An appeal filed was partly allowed by the appellate court and modified the sentence. 2. The prosecution case is that on 4.10.1995 at 9 a.m., the accused trespassed into the courtyard of PW1 and in furtherance of their common intention they assaulted PW1 and PW2 by beating with stick and hands, as a result PWs 1 and 2 sustained serious injuries and they were removed to hospital, on the basis of information, the Sub Inspector of Police, Kottakkal registered Crime No.168/1995 and after completing investigation, he laid charge in the trial court. 2 Crl. R.P.No.871/02 3. To prove the offence, prosecution examined PWs 1 to 7 and admitted Exts.P1 to P7 in evidence and marked MO1. The incriminating circumstances brought out in evidence were denied by them while questioning under Section 313 Cr.P.C. They examined DW1 and marked Ext.D1 in support of their defence. The trial court after evaluating and scrutinizing the evidence convicted the accused. Against that, they preferred an appeal in which sentence was modified. Aggrieved by that they preferred this revision. 4. Heard both sides. The learned counsel appearing for the revision petitioner contended that the evidence of PW1 to PW3 is highly interested and it is to be rejected on the ground of artificial and exaggerated. In the same incident, the 1[st] accused also sustained injuries, which was not considered by the courts below. The conviction was passed without any legal evidence. Now the learned counsel submitted that the matter has been settled out of court between parties and which was not considered by the appellate court. 5. The learned Public Prosecutor strongly resisted the above argument and contended that no compounding application is pending before this Court and the contention of Crl. R.P.No.871/02 3 the revision petitioners on that ground is to be discarded. PWs 1 and 2 are the injured witnesses and no circumstances are brought out to discard their evidence. Therefore, the findings of the courts below are only to be confirmed. 6. Now the question that arises for consideration is whether there is any illegality or irregularity in the findings recorded by the courts below? If so, the conviction and sentence passed by the court below U/Ss.447, 324 and 326 r/w 34 IPC are sustainable in law? 7. The structure of the prosecution case is erected upon the oral testimony of PW1 and 2, who are the injureds in this case. According to PW1, one year and three months back one day at 9 'O' clock in the night the revision petitioners trespassed into their courtyard and the 1[st] accused assaulted PW1 with his hand, the 2[nd] accused assaulted him with a stick and he sustained injury on the left hand and left rib. On seeing this incident, PW2 came there and at that time, accused assaulted her with that stick. PW2 cried loudly and one Sankaran and Chandran came there and resisted the accused. They had thrown the stick at the place of occurrence and left the place. Both of them sustained serious injuries and they Crl. R.P.No.871/02 4 were removed to hospital, while undergoing treatment, the police recorded Ext.p1 statement. He also identified MO1 stick. Nothing has been brought out to discredit his evidence in cross examination. PW2 supported the evidence of PW1 who sustained serious injuries in the above incident. Her evidence shows that PW1 sustained injuries on left hand and ribs. Both witnesses identified the accused in the light of the kerosene lamp. Analysing the oral evidence of these two witnesses no circumstances are brought out to discredit their evidence. The evidence of PW1 and 2 show that kerosene lamp was burning in veranda near the scene of occurrence and they identified the accused in that night is admissible. 8. In this context, I have scrutinized the medical evidence in this case. PW4 is the doctor, who examined PWs 1 and 2 and issued Exts.P2 and P3 certificates. PW4 deposed that while he was working as Civil Surgeon on 5.10.1995 at 1 p.m. he examined PW1 and issued Ext.P2 certificate. On the same day also, he examined PW2 and issued Ext.P3 certificate. In Exts.P2 and P3 injuries were noted and injuries in Ext.P2 are grievous in nature. He categorically admitted that, the injuries noted in Exts.P2 and P3 are possible to cause with MO1 stick. 5 Crl. R.P.No.871/02 Nothing has been brought out to discredit the medical evidence and it is corroborating the occular evidence. 9. The revision petitioners examined DW1 in support of their defence. According to the evidence of DW1, on hearing a hue and cry he arrived at the house of the revision petitioners. At that time, PW1 quarrelled with them after consuming alcohol. In continuation of that there was a scuffle and PWs 1 and 2 fell down and sustained injury. Even though such a contention was advanced by DW1, that version is not admissible in the light of direct oral testimony of PWs 1 and 2 and the medical evidence of Exts.P2 and P3. The Apex Court ## in _**State of Punjab**_ v. _**Jagir Singh Baljit Singh and Karam Singh**_ [AIR 1973 SC 2407] held thus: “(23) A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is exfacie trustworthy on grounds which are fanciful or in the nature of conjectures.” Crl. R.P.No.871/02 6 Here, the evidence of DW1 is based upon the same fanciful idea in the nature of conjectures, which is unworthy of credit and it is to be rejected. The presence of the revision petitioners was admitted though the evidence of DW1. The suggestive question asked by the defence counsel to PW4, who was the doctor examined PW1 and PW2, was denied by him. When injured witnesses named the assailants, it cannot say that they are falsely implicated innocent persons against them without any previous enmity. The Apex Court in _**Mer Dhana Sida**_ v. S _**tate of Gujarat**_ [AIR 1985 SC 386] held that; (para 6) '........ we would require very convincing submission to discard the evidence of injured witnesses whose injuries would at least permit a reasonable inference that they were present at the time of occurrence. Undoubtedly, this is subject to the requirement that there must be evidence to show that these witnesses received injuries in the same occurrence.” Therefore, I can say that an injured witness in any way would not easily substitute a wrong person for his actual assailant. No motive was alleged by the revision petitioners for such a substitution and the injureds evidence is admissible. 10. No lapses or irregularity are pointed out by the defence counsel about the investigation. PW5 attested Ext.P4 who saw the recovery of MO1 from the place of occurrence. Crl. R.P.No.871/02 7 PW1 deposed that the accused thrown away MO1 at the place of occurrence after the incident, which was recovered by the Police subsequently. PW6 recored Ext.P1 statement of PW1 and on the basis of that he registered Crime No.168/1995 of Kottakkal Police Station. Ext.P5 is the FIR. On 6.10.1995, he arrived at the place of occurrence and prepared Ext.P4 mahazar. MO1 was recovered from the place of occurrence on that day. PW7 conducted further investigation. On 9.10.1995 he arrested the accused. He filed Ext.P7 report before the Court. Ext.D1 was marked when PW7 was cross examined. Analysing this evidence, no illegality or irregularity find out in the investigation. 11. It is clear from the evidence that the accused entered upon the property in possession of PWs 1 and 2 with intend to commit assault and in that attack they sustained grievous injury. The injured witnesses are the main witnesses and their evidence is reliable for a conviction. They are related each other is not a valid ground for discrediting or rejecting their direct evidence. The parties are related and at the time of admission of their evidence their testimony would be subjected to a careful scrutiny and accepted with caution, after Crl. R.P.No.871/02 8 analysing the circumstance. In such scrutiny, if the testimony is found reliable that itself is sufficient for a conviction. Courts below appreciated the oral testimony of these two witnesses and other independent witnesses reached at a conclusion that their evidence is sufficient for a conclusion. I find no reason to discard their direct oral evidence. There is no illegality or irregularity in the finding recorded by the trial court. 12. Hence, the conviction passed by the trial court U/Ss.447, 324, 326 r/w 34 IPC is confirmed and the sentence is modified according to the decision of the Apex Court in _**Madanlal Ramachandra Daga & others**_ v. _**The State of Maharashtra**_ [AIR 1968 SC 1267]. In the result, the revision petitioners are sentenced as follows: a) The revision petitioners are sentenced to pay a fine of Rs.500/- each under Section 447 IPC, in default of payment of fine, simple imprisonment for one month thereunder. b) The revision petitioners are sentenced to rigorous imprisonment for three months under Section 324 IPC and to pay a fine of Rs.5,000/- each, in default of payment of fine, simple imprisonment for three months thereunder. Crl. R.P.No.871/02 9 c) The revision petitioners are also sentenced to undergo rigorous imprisonment for six months under Section 326 IPC and to pay a fine of Rs.10,000/- each thereunder, in default of payment of fine, simple imprisonment for three months. d) The sentences shall run concurrently. e) If the fine amount is realized, Rs.5000/- each shall be paid to PW1 and PW2 as compensation. ## **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.871/02 10