Purushothaman alias Purushan and Bhaskaran v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** **Crl.Rev.Pet.No. 2017 of 2006** **AGAINST THE ORDER/JUDGMENT IN CRA 90/2002 of ADDL. DIST. COURT (ADHOC) III, PALAKKAD DATED 03-03-2006** **AGAINST THE ORDER/JUDGMENT IN SC 98/1998 of SUB COURT, OTTAPPALAM DATED 30-01-2002** **REVISION PETITIONERS/ACCUSED NOS. 1 & 5/APPELLANT:** **1 PURUSHOTHAMAN ALIAS PURUSHAN AGED 41 YEARS, S/O. NAYADI, KARICKAPARAMBIL HOUSE,, THRIKKADEARI, OTTAPALAM.** **2 BHASKARAN AGED 34 YEARS S/O. NAYADI, KARIKKAPARAMBIL HOUSE,, THRIKKADEARI, OTTAPALAM.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.PRASUN.S** ## **- RESPONDENT/RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31.10.2018, ALONG WITH Crl.Rev.Pet.2022/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.R.P. Nos. 2017 & 2022 of 2006** **-2-** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940 Crl.Rev.Pet.No. 2022 of 2006** **AGAINST THE ORDER/JUDGMENT IN CRA 71/2002 of ADDL. DIST. COURT (ADHOC) III, PALAKKAD DATED 03-03-2006** **AGAINST THE ORDER/JUDGMENT IN SC 99/1998 of SUB COURT, OTTAPPALAM DATED 30-01-2002** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED NOS. 1 AND 4:** **1 PURUSHOTHAMAN @ PURUSHAN S/O. NAYADI, KARICKAPPARAMBIL HOUSE, THRIKKADEERI, OTTAPPALAM.** - **2 BHASKARAN S/O.NAYADI KARICKAPARAMBIL HOUSE, THRIKKADEERI,, OTTAPPALAM.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.PRASUN.S** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.C.M.KAMMAPPU (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31.10.2018, ALONG WITH Crl.Rev.Pet.2017/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-3-** ## **O R D E R** **The revision petitioners in these two cases are the same. They are the accused Nos. 1 and 4 in S.C. No. 99 of 1998 of the Court of Session, Palakkad, and the accused Nos. 2 and 5 in S.C.No. 98 of 1998 of the Court of Session. S.C. No. 99 of 1998 is a case where the court took cognizance on police report, and S.C. No. 98 of 1998 is a case where the court took cognizance on a complaint. The complainant who initiated the prosecution in S.C. No. 99 of 1998 is the person who filed a private complaint before the learned Magistrate. In the prosecution brought by the police, there are four accused whereas, the defacto complainant filed complaint before the learned Magistrate against six accused. The police brought the prosecution under Sections 324 and 326 read with Section 34 of the Indian Penal Code, whereas, in the complaint case, the complainant alleged the** **Crl.R.P. Nos. 2017 & 2022 of 2006** **-4-** **offences under Sections 143, 147, 148, 341, 326 and 307 IPC. The two cases were tried simultaneously by the learned Assistant Sessions Judge, Ottappalam. He recorded evidence in the two cases separately. The accused Nos. 1 and 4 in the police case are the accused Nos. 2 and 5 in the complaint case.** **2. The prosecution case is that at about 6.45 p.m. on 03.11.1992, the accused collectively attacked the defacto complainant, Narayanan, due to previous enmity in connection with a civil matter, and they inflicted simple and grievous injuries on the various parts of his body with deadly weapons. The police registered the crime on the First Information Statement given by the said Narayanan, and brought final report against four accused after investigation. Finding that the police has not brought final report against all the persons who attacked him, and the police has also not alleged** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-5-** **the offence under Section 307 IPC, the defacto complainant brought a private complaint in court adding two more accused, and also alleging the offence under Section 307 IPC. The prosecution examined seven witnesses, and proved Exts.P1 to P13 documents in S.C. No. 99 of 1998. The MO1 to MO5 properties, including the weapons of offence, were also identified. In S.C. No. 98 of 1998, only two witnesses including the complainant were examined. No document was proved in the said case, and no material object was also identified.** **3. After recording evidence in two cases separately, and after hearing both the parties, the learned trial Judge pronounced judgments in the two cases separately, finding the accused Nos. 1 and 4 in S.C. No. 99 of 1998 guilty under Section 326 IPC. The accused Nos. 2 and 3 therein were found not guilty of any of the offences, and accordingly, they were acquitted. The accused Nos.** **Crl.R.P. Nos. 2017 & 2022 of 2006** **-6-** **1 and 4 were not found guilty under Section 324 IPC. In S.C. No. 98 of 1998, the trial court found the accused Nos. 2 and 5 therein guilty under Section 326 IPC. They are the accused Nos. 1 and 4 in S.C. No. 99 of 1998. The accused Nos. 3, 4 and 6 were found not guilty of any of the offences, and they were acquitted. The case against the first accused therein was split up and refiled when he remained consistently absent during trial. In the said case also, the accused Nos. 2 and 5 were found not guilty under Sections 143, 147, 148, 341 and 307 IPC. Though found guilty in both the cases by the trial court, the two accused were convicted and sentenced only in S.C. No. 99 of 1998. No conviction was made, and no sentence was imposed in S.C. No. 98 of 1998 in view of the conviction recorded in the police case.** **4. Aggrieved by the judgment of** **conviction and sentence in S.C. No. 99 of 1998, and** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-7-** **also the judgment finding the accused guilty in S.C. No. 98 of 1998, the they filed two appeals before the Court of Session. In S.C.No. 99 of 1998 (police case), they filed Crl.A. No. 71 of 2002, and against the judgment in S.C. No. 98 of 1998 (complaint case), they filed Crl.A. No. 90 of 2002. In appeal, the learned Additional Sessions Judge (Adhoc-III), Palakkad, confirmed the conviction under Section 326 IPC, but modified and reduced the sentence. Crl.A. No. 90 of 2002 brought against the judgment in S.C. No. 98 of 1998, was unfortunately dismissed. In Crl.A. No. 71 of 2002, the learned appellate Judge reduced the substantive sentence to rigorous imprisonment for one year, and also directed the accused to pay a compensation of Rs.10,000/- each to the victim. The sentence imposed by the trial court under Section 326 IPC in S.C. No. 99 of 1998 is rigorous imprisonment for three years. Now the two accused** **Crl.R.P. Nos. 2017 & 2022 of 2006** **-8-** **convicted by the trial court, are before this Court in revision, challenging the legality and propriety of the conviction and sentence.** **5. On hearing both sides, and on a perusal of the materials, I find that the judgment in S.C. No. 98 of 1998 finding the revision petitioners guilty, is liable to be set aside. On an examination of the entire procedure, I find that instead of proceeding for a joint trial as held by this Court in Mony v. Swaminathan (1986 KLT 170) and Peter v. Kurian (1994 (1) KLT 17), the trial court, on a misconception, proceeded for simultaneous trial in view of Harjinder Singh v. State of Punjab and Others (AIR 1985 SC 404). Of course, there are two cases; one a police charge, and other a complaint case. This is not a case where the prosecution versions in the two cases are materially contradictory or mutually exclusive. The two cases arose out of the same transaction and** **Crl.R.P. Nos. 2017 & 2022 of 2006** **-9-** **the same incident. When the police brought final report against four accused on the basis of the materials collected during investigation, the victim brought a private complaint against six persons. He has no case that the four accused, against whom the police has brought final report, are not involved in the crime. When the police brought final report under Section 326 IPC, the victim, who was not satisfied with it, alleged the offence under Section 307 IPC also, and his case is that the accused inflicted serious injuries on his body in an attempt on his life. Thus, this is a case where the victim added something in the complaint case, and this is not a case where the two cases are materially contradictory. I find that the trial court should have adopted the procedure as laid down by this Court in the cases cited supra. Instead of conducting a joint trial, and recording common evidence, the trial court** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-10-** **conducted simultaneous trial. It is an irregular procedure. The lower court should have tried the two cases jointly, and come to a single finding against the persons who actually committed the alleged offences. Of course, it is true that in S.C. No. 98 of 1998, the trial court has not convicted the accused. The conviction is entered only in S.C. No. 99 of 1998, and sentence was also imposed in the said case. Anyway, the practical effect is that there are two findings of guilty against the accused under the same Section. Had the two cases been tried jointly, there would have been only one finding and one conviction. It appears that the decisions of this Court cited supra were not brought to the notice of the trial court during trial. Probably the accused also did not raise any objection during trial. A separate trial was quite unnecessary in the given circumstances. So, I find that the facts and** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-11-** **merits can be examined in S.C. No. 99 of 1998 where the revision petitioners have received conviction and sentence, and the judgment finding them guilty in S.C.No. 98 of 1998, can be set aside.** **6. Now let me see whether there is clear evidence in S.C. No. 99 of 1998 to find the revision petitioners guilty under Section 326 IPC. Of the seven witnesses examined in the trial court, PW1 is the defacto complainant, and he is the only material witness in this case. PW2, examined as an eye witness, did not support the prosecution. However, he stated in evidence that when he come to the scene on hearing the alarm, he saw PW1 lying with bleeding injuries, and when he asked him what happened to him, he replied that he was attacked by the accused. The witness has not stated the specific statements given by the victim as to who among the accused attacked him, or how they attacked him, or with what weapon they attacked** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-12-** **him. In the absence of such necessary details, the evidence given by PW2 regarding the statements given by the victim cannot be accepted as** _**res gestae**_ **evidence. PW3 and PW6 are only the attestors to the scene mahazar, and PW4 is one of the persons who took the victim to the hospital. PW7 is the doctor who examined the injured at the hospital, and issued the wound certificate. The medical evidence given by PW7 proves the grievous injuries sustained by the victim. The medical evidence shows that he had sustained some fractures, and during trial, the weapons of offence were clearly identified by the victim.** **7. The complainant examined as PW1 has given definite and satisfactory evidence proving the alleged incident of assault. Of course, it is true that there are some discrepancies in the evidence given by him. On an examination, I find that these are not very material so far as the** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-13-** **accused Nos. 1 and 4 are concerned. Of course, as against the others, there is no clear and satisfactory evidence, and so, they were rightly found not guilty by the trial court. PW1 is definite and firm in his evidence that the various injuries sustained by him were inflicted by the accused Nos. 1 and 4 with deadly weapons. The weapons were also identified by him during trial. I find no reason to reject the evidence of PW1, or to disbelieve him on facts. The defence has also no explanation how PW1 sustained so many injuries including grievous injuries. On factual aspects, the entire evidence was examined by the appellate court also, and the appellate court found that there is nothing to interfere in appeal. As regards the factual aspects, the scope of revision is limited. Anyway, I examined the evidence given by the complainant in detail to see whether the appreciation made by the courts below is correct.** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-14-** **I find that the complainant has beautifully explained the way in which he sustained injuries, and he also clearly identified the two persons who inflicted the injuries. On the basis of the unblemished evidence given by the victim, I find that the accused Nos. 1 and 4 in 99 of 1998 were rightly found guilty by the courts below. I find no scope or reason for interference in revision in the findings on facts made by the courts below, or the conviction made by the courts below.** **8. Now the question of sentence. The incident happened in 1992. 26 years have elapsed since the date of incident. Of course, it is true that the acts of the accused cannot be condoned because the complainant had sustained so many injuries and fractures. Though the trial court imposed a jail sentence of rigorous imprisonment for three years, the appellate court modified and reduced it to rigorous imprisonment for one year,** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-15-** **and a direction to pay compensation was also made by the appellate court. It is submitted that the two revision petitioners are now aged above 60 years. Anyway, on a consideration of the various aspects, I feel that a further reduction can be made in the revision, subject to enhancement of the amount of compensation.** **In the result, Crl.R.P.No. 2017 of 2006 is allowed and accordingly, the judgment in S.C. No. 98 of 1998 of the court below, finding the revision petitioners guilty, will stand set aside. The conviction against the revision petitioners in Crl.R.P. No. 2022 of 2006 in S.C. No. 99 of 1998 under Section 326 IPC is confirmed, and the said revision petition is disposed of accordingly. However, the substantive jail sentence imposed by the court below under Section 326 IPC will stand further modified and reduced to rigorous imprisonment for six months. In lieu of such** ## **Crl.R.P. Nos. 2017 & 2022 of 2006** **-16-** **modification, the amount of compensation awarded by the appellate court will stand enhanced to Rs.25,000/- (Rupees twenty five thousand only) each to the victim of offence (PW1). The default sentence imposed by the appellate court is maintained. The revision petitioners will surrender before the trial court within four weeks from this date to serve out the modified sentence, and to make payment of the compensation voluntarily, on failure of which steps shall be taken by the trial court to enforce the modified sentence, and realise the amount of compensation, or enforce the default sentence.** **As regards the case split up as against the first accused in S.C. No. 98 of 1998, let appropriate decision be taken by the trial court.** **Sd/P.UBAID JUDGE** **ds 31.10.2018**