Prasad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938** ## **Crl.Rev.Pet.No. 481 of 2006 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN CRA 283/2002 of ADDL.SESSIONS COURT-I, MAVELIKKARA DATED 31.12.2005** **AGAINST THE JUDGMENT IN CC 123/1998 of J.M.F.C.-II, CHENGANNUR DATED 18.9.2002** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **PRASAD, AGED 33, S/O.KARUTHAKUNJU, KODUTHURELIL HOUSE, THRIPPERUMTHURA, PADINJAREVAZHI MURI, THRIPPERUMTHURA VILLAGE,, CHENNITHALA.** ## **BY ADV. SRI.R.T.PRADEEP** ## **RESPONDENT(S):** **-------------------------** **THE STATE OF KERALA DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.P.V.ELIYAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 2006-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.R.P.No. 481/2006** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **NIL.** ## **RESPONDENT(S)' EXHIBITS:** **NIL.** sdk+ ///True copy/// P.S. to Judge ## ALEXANDER THOMAS, J. ================== ## Crl.R.P.No.481 of 2006 ================== Dated this the 20[th] day of June, 2016 O R D E R The sole accused in Calendar Case, C.C.No.123 of 1998 on the file of Judicial First Class Magistrate –II, Chengannur is the revision petitioner. He was convicted for offences under Secs.326 and 452 of the Indian Penal Code. He was convicted and sentenced for offences under Sec.326 of the IPC and was sentenced for that offence to undergo rigrorous imprisonment for two years and to pay a fine of Rs.3,000/- and in default, to suffer simple imprisonment for further one month and the said fine realized was directed to be paid to the injured (PW-1). He was also convicted for the offence under Sec.452 of the IPC and was sentenced for that offence to undergo one year rigourous imprisonment and to pay a fine of Rs.2,000/- and in default, he was ordered to suffer simple imprisonment for one month. 2. The conviction and sentence was imposed on the petitioner as per the impugned judgment rendered on 18.9.2002, Crl.R.P.481/06 - : 2 :- by the trial court in C.C.No.123 of 1998. The petitioner preferred Crl.Appeal No.283 of 2002 before the Appellate Sessions Court concerned (Court of Additional Sessions Judge–I, Mavelikkara) and the Appellate Court, as per the impugned judgment rendered on 13.12.2005, had confirmed the conviction for both the offences. However, the sentence for offence under Sec.326 IPC was reduced to one year imprisonment and the fine amount of Rs.3,000/- and the default clause for that offence was not in any manner modified. The sentence for the offence under Sec.452 of IPC was not modified or reduced in any manner. The Appellate Court has further ordered that the sentences for the abovesaid offences should run concurrently. Aggrieved by the above said conviction and sentence imposed on the petitioner, he has preferred the instant revision petition by resort to the provisions contained in Sec.397 read with Sec.402 of the Code of Criminal Procedure. 3. Heard Sri.R.T.Pradeep, learned counsel for the revision petitioner–accused and the learned counsel appearing for the respondent State Authoritites. 4. As noted by the trial court and the appellate court, the prosecution mainly relies on the evidence of PW-1 (defacto Crl.R.P.481/06 - : 3 :- complainant) and PWs-2 & 3 (occurrence witnesses) and also on PW-7 (doctor, who issued Ext.P-3 wound certificate) and PW-8 (doctor, who issued Ext.P-4 discharge certificate) as well as the documentary evidence as per Ext.P-3 (wound certificate) and Ext.P4 (discharge certificate), to prove their case. PW-1 is the injured who is a Homeopathic doctor. He has stated that on the day in question, viz. 21.3.1998, at 7.30 p.m. the sole accused came there and demanded money for future treatment of his wife and that PW-1 had refused to pay the same and that immediately, the accused fisted on PW-1's face with his hand holding a stone in his hand. When he made loud cry, PWs 2 and 3, who came inside and at that time, the accused left the place throwing the stone on the road. It has come out in evidence that the wife of the accused was treated by PW-1 and that a civil suit was filed by the accused's wife against PW-1 for compensation and this is admitted by both sides. The appellate court has also noted that it can be seen from the Sec.313 statement of the accused that there were some negotiations between the accused and PW-1 (defacto complainant) regarding the payment of the compensation on an earlier occasion and that the accused's wife had filed a civil suit for recovery of compensation Crl.R.P.481/06 - : 4 :- against PW-1. PWs 2 and 3 are witnesses, who claimed that they were standing in the veranda of the clinic of PW-1 on the fateful day and that they had seen the incident, while they were standing outside. The trial court has believed this version of PWs 2 and 3 so as to implicate the accused. However, the appellate sessions court clearly holds in page 7 of the impugned appellate judgment that the possibility of PWs-2 and 3 seeing the actual incident is a remote possibility and that at best their evidence can be relied only for the purpose of proving the fact that it was the accused, who had come to the clinic at the time of the accident and had left the clinic immediately after the incident and that there were no other persons inside the clinic except PW-1 and the accused at the time of the incident. The appellate court also holds that since there was civil suit pending between the accused's wife and PW-1 regarding the treatment given by the latter to the former, the possibility of the accused coming to the clinic of PW-1 demanding money cannot be ruled out. Still, the appellate court finds that this is sufficient to hold that there is proof beyond reasonable doubt that the accused had criminally trespassed into the clinic of PW-1, etc. The aspect regarding the offence under Sec.452 of the I.P.C. will be dealt with Crl.R.P.481/06 - : 5 :- separately. 5. The appellate court also holds that from Ext.P-3 wound certificate dated 21.3.1998 it can be seen that PW-1sustained injuries and swelling about ½ x ½ inch on the base of the nose with bleeding from the left nostril. In Ext.P-3 wound certificate issued by PW-7, the cause of the injury is specifically noted as “Îá×í¿ßºáøáGà §¿àºîÄßWåÕº **î** í”. The appellate court says that a bare reading of Ext.P-3 wound certificate would show that the injured (PW-1) has not stated to the doctor (PW-7) that the injured was hit with a stone by the accused. It is also not in dispute as found by the appellate court, that the weapon of offence was not recovered. Based on the evidence on record, the appellate court clearly concludes in para 12 of the impugned judgment that there is no acceptable evidence to prove that the accused had inflicted any injury on PW-1 with any weapon like stone, as deposed by PW-1. However, the appellate court, on the other hand, further says that this alone is not sufficient to disbelieve the prosecution story as such and that the evidence adduced on the side of the prosecution proves that, on account of the assault made by the accused on PW1, he sustained fracture or wounds of nasal bone, which is a Crl.R.P.481/06 - : 6 :- grievous injury. On this basis, further the appellate court holds that it can be safely concluded that the prosecution has proved beyond reasonable doubt that the accused has committed the offence punishable under Secs.452 and 326 of the I.P.C. and that the trial court was justified in convicting the accused for the said offence, etc. The above said finding made by the appellate court that the fact that there is no acceptable evidence to prove that the accused had inflicted injury on PW-1 with any weapon like a stone as deposed by PW-1, is by itself is not sufficient to disbelieve the prosecution story and that the fact that it has been proved that the injured had sustained nasal bone injury, which is a grievous injury, would prove the charges under Secs.326 and 452 of the I.P.C., etc. is to say the least, perverse and unreasonable. The appellate court has clearly found that there is no acceptable evidence whatsoever to prove that the accused had inflicted any injury on the PW-1 with any weapon like stone, as deposed by PW-1. After having reached this conclusion, to say in the next breath in the manner as noted herein above, is quite unreasonable and improper. 6. There is yet another aspect of the matter. The incident happened on 21.3.1998 at 7 p.m. in the evening. It has come out Crl.R.P.481/06 - : 7 :- on evidence that the injured, (PW-1), was taken to the Government hospital immediately and he was examined by the Government Doctor (PW-7) at 7.30 p.m. on 21.3.1998, who then recorded the injury of PW-1 in Ext.P-3 wound certificate dated 21.3.1998. It has not been noted in Ext.P-3 regarding the version that PW-1 was fisted with a stone by the accused. PW-7, the doctor who issued Ext.P-3 wound certificate, has clearly deposed in cross examination that PW-1 had never stated before him at the time of the clinical examination on 21.3.1998 that he sustained any injury due to use of any weapon by the accused and that had PW-1 told him so, then he would have definitely recorded the same in Ext.P-3. It was only much later on the next day, 22.3.1998 at 1.30 p.m. that PW-1 has given the version about not only fisting but that he was fisted with a stone by the accused as per Ext.P-1 FI statement. This led to the registration of FIR on 22.3.1998 for the offence under Sec.324 of the I.P.C. It may be noted that PW-1, the injured, is a doctor and PW-7, who issued Ext.P-3 wound certificate is also a doctor. It only stands to reason that ordinarily, when an injured, who is a doctor, comes to another doctor for medical treatment and such other purposes, then the treating doctor is quite expected to show Crl.R.P.481/06 - : 8 :- concern at the gravity of the situation and would have elicited at least the minimum requisite details from the injured as to the gist of the incident and as to the cause of the injury. Therefore, the omission to mention about the use of stone in Ext.P-3 cannot be lightly brushed aside. Moreover, the stone has not been recovered at all. It is in the light of these aspects that the appellate court clearly concludes that there is no acceptable evidence on record in this case to prove that the accused had inflicted any injury on PW-1 with any weapon like stone as deposed by PW-1. The versions of PWs 2 and 3 have also been disbelieved by the appellate court. True that later it was detected that the injured (PW-1) had sustained nasal fracture due to the above injury and therefore the offence was altered from Sec.324 to Sec.326 as it was one involving grievous injury. Merely because the injury sustained is one related to grievous hurt as envisaged in Sec.324 of the I.P.C., will not necessarily bring in proof beyond reasonable doubt that the accused has committed the offences under Secs.452 and 326 of the I.P.C. Having held that there is no acceptable evidence on record to prove that the accused had inflicted any injury by using a weapon like stone as deposed by PW-1, the appellate court's further conclusion Crl.R.P.481/06 - : 9 :- that there is still sufficient proof to rope in the petitioner for the offence under Sec.326 of the I.P.C., is perverse and unreasonable. In this context it is also relevant to note that the Division Bench of this Court in the case in Joy v. State of Kerala reported in 2014 (1) KLT 588 = 2014(1) KLJ 529 = ILR 2014 (1) Ker.751 = 2014 (1) KHC 414 has held in para 6 thereof that as such a stone cannot be said to be a weapon of offence, likely to cause death and to decide whether a particular stone brought before the Court as material object used for infliction of injury, is a weapon of offence likely to cause death, there must be some evidence regarding the nature of the stone, or the size of the said stone, and also regarding the way in which the stone was used in the process of assault for infliction of injury. In that case, the material object involved in the offence was not produced before the court, like in this case. The Division Bench noted the ruling of the Apex Court in Mathai v. State of Kerala reported in (2005) 3 SCC 260 = 2005 KHC 121, which involved alleged infliction of grievous hurt by hitting with a stone and the Apex Court held therein that the Court will have to decide on the facts and circumstances of each case, having regard to the size of the weapon, sharpness etc. and as to whether the given weapon is Crl.R.P.481/06 - : 10 :- deadly weapon or not. The Apex Court in the ruling in Mathai's case supra altered the conviction from Sec.326 IPC, to one under Sec. 325 IPC. Accordingly, the Division Bench followed the said ruling of the Apex Court in Mathai's case supra and held as follows in para 6 of Joy's case reported in 2014 (1) KHC 414, as follows: “6. A stone, as such, cannot be said to be a weapon of offence, likely to cause death. To decide whether a particular stone brought before the Court as material object used for infliction of injury, is a weapon of offence likely to cause death, there must be some evidence regarding the nature of the said stone, or the size of the said stone, and also regarding the way in which the stone was used in the process of assault for infliction of injury. It is pertinent to note that the material object involved in this case is not before the court. In Mathai V. State of Kerala [(2005) 3 SCC 260] involving alleged infliction of grievous hurt by hitting with a stone, the Hon'ble Supreme Court held that the Court will have to decide on the facts and circumstances of each case, having regard to the weapon's size, sharpness etc. as to whether the given weapon is deadly weapon or not. In the said case the Hon'ble Supreme Court altered the conviction under Section 326 IPC, to one under Section 325 IPC. This decision of the Hon'ble Supreme Court can be followed in this case. When the prosecution allegation is that grievous injuries were inflicted by the revision petitioner on the body of the 2nd respondent with a stone, the prosecution does not have any explanation, as to what happened to the stone, or why it is not produced in court as a material object. In a case like this the prosecution must produce the weapon before the Court, it must be shown to the medical witness, and the prosecution must elicit materials from the medical witness regarding the nature of the stone, its size and also regarding the possibility of death being caused, if the said stone is used as a weapon of offence, or the possibility of death being caused due to the grievous injuries inflicted with the said stone. But in this case, the learned Assistant Public Prosecutor who conducted prosecution in the trial court has not elicited any such necessary material regarding the alleged weapon, from the medical witness examined in the trial court. In the absence of such necessary materials for deciding whether the alleged weapon of offence is likely to cause death, and in the absence of such a weapon before the Court as material object, we find that this case cannot be taken as a case of infliction of grievous hurt by means of any weapon of offence. Accordingly, we find that the conviction in this case under Section 326 IPC is not sustainable under the law. Crl.R.P.481/06 - : 11 :- However, we find a case of infliction of grievous injuries, otherwise than by means of deadly weapon or dangerous weapon coming under Section 325 IPC. Consequently, it will have to be found that infliction of simple injuries alleged in this case will have to come under Section 323 IPC.” In this case also, the weapon has not been recovered or produced before the trial court. Except by saying that the accused had fisted with a stone on the nose, the injured (PW-1) has not given any details regarding the nature of the weapon or its size, etc. In the light of all these aspects, this Court is of the considered opinion that the finding of both the courts below that the petitioner can be convicted under Sec. 326 of the I.P.C. is perverse and illegal. 7. However, the fact of the matter is that the evidence on record has clearly disclosed the infliction of grievous hurt on the injured as envisaged in Secs.320 of the I.P.C., as the injured has suffered fracture of nasal bone as evident from Ext.P-4 discharge certificate issued by PW-8 (doctor). Therefore, though there is no sufficient proof to convict the petitioner for the offence under Sec.326 (voluntary causing grievous hurt by dangerous weapons or means) it is only to be held that the petitioner is liable for conviction under Sec.325 (Punishment for voluntarily causing grievous hurt). 8. Now the issue is as regards the impugned conviction of the petitioner for the offence under Sec.452 of the I.P.C., (which Crl.R.P.481/06 - : 12 :- deals with house-trespass after preparation for hurt, assault or wrongful restraint). As discussed hereinabove, the appellate court has clearly found that there is evidence on record to show that the accused's wife was treated by PW-1 (Homeo Doctor) and that a civil suit was filed by the accused's wife against PW-1 for compensation and that this is clearly admitted by both sides. The appellate court has also found that Sec.313 statement of the accused has clearly shown that there were some negotiations between the accused and PW-1 regarding payment of the amount on an earlier occasion and that the accused's wife had filed a civil suit for recovery of compensation against PW-1. This is so clearly held in para 10 on page 6 of the impugned appellate judgment. Further the appellate court also concludes clearly in para 11 on page 7 of the impugned judgment that since civil suit was pending between the accused's wife and PW-1 regarding the treatment given by PW-1 to the accused's wife, the possibility of the accused coming to the clinic of the doctor for demand money cannot be ruled out. After so holding, the appellate court, on the other hand, further says that this is sufficient to safely conclude that the prosecution has proved beyond reasonable doubt that the accused had criminally trespassed Crl.R.P.481/06 - : 13 :- into the clinic of PW-1, etc. The said approach of the appellate court is also clearly perverse and improper. As already stated hereinabove, even the appellate court has found that there was no evidence on record to prove that the accused had come to the clinic of PW-1 with the a stone so as to cause him injury. There is no other evidence whatsoever on record to show that there was any prior preparation for hurt, assault or wrongful restraint when the accused had come to the scene of occurrence, as envisaged in Sec.452 of the I.P.C. This Court in the ruling in Sathyaseelan v. State of Kerala (Crl.R.P.No.2501/2006 judgment dated 1.8.2006) reported in 2006 (4) KLT SN 24 (Case No.37), has held that in order to attract culpability under Sec. Sec.451, trespass must be in order to commit any offence punishable with imprisonment and that a close analysis of S.451 I.P.C. must convey that to attract culpability under S.451 I.P.C., the trespass must be in order to commit any offence punishable with imprisonment and the mere fact that an offence punishable with imprisonment was committed after such trespass is by itself insufficient to come to the conclusion that the purpose was to commit any offence. In this regard, this Court in Sathyaseelan's case supra had relied on the rulings of the Rajasthan Crl.R.P.481/06 - : 14 :- High Court reported in 1966 Crl.L.J. 236, and that of the Madhya Pradesh High Court reported in AIR 1960 MP 24. In the ruling of the Rajasthan High Court Dal Chand v. State reported in 1966 Crl.L.J 236, para 5, it was held that there was clear a evidence of preparation for causing hurt to sustain conviction under Sec. 452 of the I.P.C. and the fact that the person enters another person's house and commits an assault does not necessarily presuppose of preparation or it may be case of post hoc ergo proper hoc. In para 5 of the said ruling in 1966 Crl.L.J. 236, it was held as follows: “5. Taking up the first branch of the argument, I must observe that there is a considerable force in it and it must be accepted. It is well settled that there must be clear evidence of preparation for causing hurt to sustain a conviction under S.452, Indian Penal Code. The fact that a person entered another man's house and committed an assault does not necessarily presuppose such preparation, for it may be a case of post hoc ergo propter hoc. The materials on the record of this case show that the fight between the parties developed on account of the complainant having protested against the collection of stones by the accused. The fight was sudden and during the course of the fight the accused took a 'salia' of the cart and inflicted blow upon the complainant. In the circumstances of the case, it is difficult to infer that the accused had made preparation for causing hurt to the complainant. Mr.Singhi appearing for the State made no attempt to counter argument on this aspect of the case. “ 9. Going by the legal principles laid down in the said rulings and taking into account the clear factual aspects concluded by the appellate court that, in view of the pending civil suit between the parties and the prior negotiations going on between the parties, there was likelihood of the accused going to PW-1's clinic for Crl.R.P.481/06 - : 15 :- discussion or negotiations, etc., it is only to be held that the necessary ingredients as envisaged Sec.452 of the I.P.C. is conspicuously absent in the evidentiary aspects that has come out on record. Therefore, the impugned conviction of the petitioner under Sec.452 of the I.P.C. is also perverse, improper and illegal. The upshot of the discussion is that the impugned conviction and sentence imposed on the petitioner for the offences under Secs.326 and 452 of the I.P.C. is liable to be set aside. However, the petitioner is liable to be convicted for the offence under Sec.325 of the I.P.C. 10. The next issue is as to the sentence that is to be imposed on the petitioner for having committed the offence under Sec.325 of the I.P.C. Sri.R.T.Pradeep, learned counsel for the petitioner strongly pleaded that the offence under Sec.325 of the I.P.C. is compoundable even at the stage of revision, by virtue of the powers conferred under Sec.320(8) of the I.P.C. and that the Division Bench of this Court in the aforestated ruling in Joy v. State of Kerala reported in 2014 (1) KHC 414, after altering the offence from Sec. 326 of the I.P.C. to Sec.325 of the I.P.C., had permitted the compounding of the offence in the case therein. However, the Crl.R.P.481/06 - : 16 :- learned counsel for the petitioner would further submit that now the accused, who is a member of schedule caste community, is working as a bamboo cutter in the farm of PW-1 and that much water has flown after the incidents and that though those parties have amicably settled the disputes, the two sons of PW-1 are objecting to the compounding of the offence by PW-1. It is further pointed out that the accused was only 26 years of age at the time of the incident on 21.3.1998 and that presently, he is about 43 years and that due to medical complications suffered by the accused's wife due to the treatment of PW-1, which resulted in the civil suit between the parties, she is unable to do any manual work and that the petitioner is the sole breadwinner of the family. Further, the accused has a son aged 17 years and a daughter aged about 16 years. That the son had fallen from a coconut tree and is bedridden. In the light of these aspects, Sri.R.T.Pradeep, learned counsel appearing for the petitioner prays that in view of these aspects and more particularly in the light of the fact that the offence under Sec. 325 of the I.P.C. is a compoundable offence, this Court may take a lenient and liberal view and may show necessary compassion, while deciding the quantum of sentence in this case. Crl.R.P.481/06 - : 17 :- 11. Having regard to the aforestated aspects, it may be noted that the petitioner had inflicted grievous hurt on PW-1, who is a Homeopathic doctor. The appellate court had imposed sentence of one year rigorous imprisonment for the offence under Sec.326 of the I.P.C. and one year rigorous imprisonment for the offence under Sec.452 of the I.P.C. and those were ordered to run concurrently. One year's rigorous imprisonment was ordered by the appellate court on the premise that the offence proved is one under Sec.326 of the I.P.C. Having regard to the aforesaid extenuating circumstances and also having regard to the long lapse of more than 17 years after the occurrence of the incident in March 1998, this Court is of the considered opinion that the ends of justice would be met by awarding a sentence of three months' simple imprisonment on the petitioner in respect of his conviction for the offence under Sec.325 of the I.P.C. In this view of the matter, the impugned judgments of both the courts below are set aside and the conviction and sentence imposed on the petitioner for the offences under Secs.326 and 452 of the I.P.C. are also set aside. However, the petitioner is convicted for the offence under Sec.325 of the I.P.C. and he is ordered to undergo sentence of three months' simple Crl.R.P.481/06 - : 18 :- imprisonment for that offence. The revision petitioner accused will appear before the trial court to receive the sentence on 31.8.2016 at 11 a.m. With these observations and directions, the Criminal Revision Petition stands partly allowed. avk sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. To Judge.