Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 28TH DAY OF SEPTEMBER 2012/6TH ASWINA 1934** **Crl.Rev.Pet.No. 1728 of 2005 ( )** **-------------------------------CRA.711/2003 of SESSIONS COURT,KOZHIKODE CC.310/2000 of J.M.F.C. - II, PERAMBRA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **RAJAN, S/O.KUTTIEKKAN, AREEKKARAPARAMBATH VEEDU, THRIKKUTTISSERY AMSOM VAKAYADU DESOM, KOYILANDY TALUK.** **BY ADV. SRI.SANTHARAM.P** **COMPLAINANT(S)/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR ADV. SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.1728 of 2005 ---------------------------------------------Dated this the 28[th] day of September, 2012 ## **ORDER** The petitioner is the accused in C.C.No.310/2000 before the Chief Judicial First Class Magistrate's Court-II, Perambra. The prosecution was one under Sections 341, 354 and 324 of Indian Penal Code. 2. The prosecution case is as follows:- There was previous enmity between PW1 and the accused. Due to the said enmity, on 22.5.2000 at 12 'O' clock in the noon, on the road situated in front of the house of Chathukutty of Naduvannur Village, accused with an intention to outrage the modesty of PW1, wrongfully restrained her, holding her by her hair and caused hurt to her by beating her with a stick, thus committing the offences charged. The prosecution examined nine witnesses and marked Exts.P1 to P5 and MO1. The accused examined DWs 1 and 2 and marked Ext.D1 medical certificate. The Magistrate, after appreciating the evidence, convicted the petitioner and Crl. R.P. No.1728/05 2 sentenced him to undergo simple imprisonment for one year and a fine of Rs.2,000/- (Rupees two thousand only) with a default sentence of imprisonment for two months. The fine amount was directed to be paid to PW1 as compensation. In Criminal Appeal No.711/2003 filed by the petitioner before the Court of Sessions, Kozhikode, the Sessions Court upheld the conviction but, modified the sentence of imprisonment to two months upholding the fine and the default sentence. The petitioner is challenging the judgments of the courts below. 3. The petitioner's contention is that there was no reliable evidence adduced by the prosecution to prove the guilt of the petitioner. According to him, none of the witnesses could be believed. He points out that as proved through DW2, the doctor treating the petitioner, the petitioner is a physically handicapped person having 40% disability. DW2 gave evidence to the effect that the petitioner is not a person, who could have held a lady by her hair with the left hand and beaten her with the right hand. The whole prosecution case is that the petitioner held PW1 by her hair with his left hand and beat her with his right hand. In view of the doctor's evidence, that prosecution version is not probable, is the contention Crl. R.P. No.1728/05 3 raised. It is submitted that the Magistrate himself disbelieved the PW3, he being witness in more than one other case between the same parties. It is also submitted that the name of PW3 was not mentioned in the F.I. Statement as one of the persons, who came to the scene at the time of incident, whereas the name of PW1 has been specifically mentioned. In view of the above circumstances, the appreciation of evidence by the lower courts is clearly perverse and therefore, the judgments of the lower courts are liable to be set aside and the petitioner is liable to be acquitted, is the contention raised by the petitioner. 4. On the other hand, the learned Public Prosecutor would submit that the evidence of PW1, who was the injured witness, whose injuries are corroborated by the medical evidence as those could be caused as claimed by the prosecution is more than sufficient to prove the prosecution case. In addition, the evidence of PW2, who came to the scene at the time of incident, which, could not be shaken any cross examination, sufficiently corroborates the evidence of PW1. She also points out that, although the Magistrate held that PW3's evidence does not inspire confidence, that was only 4 Crl. R.P. No.1728/05 on the ground that he was a witness in other cases between the same parties also. According to the learned Public Prosecutor, the fact that PW3 was a witness in other cases between the same parties, pales into insignificance, since PW3's evidence is corroborated by the evidence of PWs 1 and 2. It is pointed out that, even assuming that the DW2's evidence can be accepted as the final word, he does not specifically state that the petitioner could not have held PW1 by his left hand and beaten her with the right hand in all circumstances. He only states that the petitioner will have difficulty to do so, whereas he categorically states that the petitioner can beat with his right hand. She also points out that the DW2's credentials are suspicious, when he does not even say that he is a doctor, in chief examination. He does not give his qualifications to be an expert medical witness also. The learned Public Prosecutor also relies on the decision of the Supreme Court in _**Mohar and another**_ v. _**State of U.P.**_ [(2002) 7 Supreme Court Cases 606] in support of the contention that the testimony of an injured witness has its own efficacy and relevancy. The fact that a witness sustained injuries on his body would show that he was present at the place of Crl. R.P. No.1728/05 5 occurrence and has seen the occurrence by himself, in view of which convincing evidence would be required to discredit the testimony of an injured witness. Here, according to the learned Public Prosecutor, PW1, as the injured witness, has given very convincing evidence, which could not be discredited either by cross examination or by any acceptable evidence adduced by the petitioner. Therefore, she would support the judgments of the courts below. 5. I have considered the rival contentions in detail. 6. The learned counsel for the petitioner heavily relies on the evidence of DW2 stated to be a doctor, who was treating the petitioner. I have gone through the evidence of DW2. First of all, in chief examination, he did not give his credentials. He did not even state what his qualifications are. He does not even say that he is a doctor. He only says that the accused comes to him still for treatment. In addition to that, he does not categorically say that the petitioner cannot in all circumstances hold a lady by her hair with the left hand beat her with the right hand. He only says that it would be difficult for him to hold a person by his left hand and beat that person with his right hand. But, he categorically asserts that Crl. R.P. No.1728/05 6 he can certainly beat the lady with his right hand. The Magistrate, who has personally seen the accused in court, has specifically stated that the physical appearance of the accused did not suggest that he could not cause injuries found on the body of PW1 by beating with MO1 stick and that apparently the accused is a well built person and the left side of his body is also seen grown proportionately to his right side. As such, I am of opinion that the evidence of DW2 is not conclusive enough to hold that, the petitioner will not be able to hold PW1 by her hair with his left hand and beat her with his right hand. For the above reasons, I do not think that the petitioner can be given the benefit of doubt on account of his alleged physical disability stated by DW2. 7. I also do not find any notable discrepancies in the evidence adduced by the prosecution. The learned counsel for the petitioner tries to make heavy weather of the fact that in Ext.P1-F.I. Statement given by PW1, the name of PW3 is not mentioned whereas she has given the name of PW2. I have gone through Ext.P1 F.I. Statement. All what she says about the others who came to the scene is that when PW2 came nearer, the accused left the place. She does not state the Crl. R.P. No.1728/05 7 names of the persons who came to the scene or that PW2 alone came to the scene. She only states that when PW2 came nearer, the accused left the place. It is also in evidence that after the incident many people came to the scene. If the petitioner's contention is to be accepted, then the PW1 will have to state the names of all persons, who were there, at the time of or after the incident. The absence of the name of PW3 in the F.I. Statement does not in any way discredit the evidence of PW1 in any manner is my opinion. On going through the cross examination of PWs 1 and 2, I could not find anything material brought out by the accused in favour of his contention. In view of the fact that PW1 and PW2 withstood cross examination admirably, I am satisfied that the evidence of PW3 can be discarded on the ground that he was a witness in two other cases between the same parties, especially since he fully corroborates the evidence of PWs 1 and 2 whose evidence is blemishless. As rightly pointed out by the learned Public Prosecutor, in the decision in _**Mohar's**_ case (supra) the Supreme Court categorically held thus in paragraph 11: “11. The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and Crl. R.P. No.1728/05 8 has seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity. ..............” As I have already held, PW1, who is the injured witness has given very convincing evidence regarding the incident, which could not be discredited by the accused in cross examination. Her evidence is fully corroborated by the medical evidence regarding her injuries. In the above circumstances, I do not find any perversity whatsoever in the appreciation of evidence by the lower courts. If at all there is any perversity, that is in favour of the petitioner and not against him, as I have stated above regarding the findings of the lower court on the evidence of PW3 and DW2. Therefore, I do not find any merit in this Criminal Revision Petition and accordingly, the same is dismissed. ## **S. SIRI JAGAN, JUDGE** acd Crl. R.P. No.1728/05 9 Crl. R.P. No.1728/05 10