Rajeev v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 28TH DAY OF JUNE 2013/7TH ASHADHA, 193** ## **Crl.Rev.Pet.No. 1279 of 2013 ()** **--------------------------------** **AGAINST THE JUDGMENT IN CRA 403/2006 of ADDL. DISTRICT COURT (ADHOC), KOLLAM DATED 23-06-2012** **AGAINST THE JUDGMENT IN CC 785/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT I, KARUNAGAPPALLY DATED 10-06-2006** **REVISION PETITIONER/IST APPELLANT/IST ACCUSED:** **-------------------------------------------------------------------------------** **RAJEEV AGED 34 YEARS** **S/O RAJAN, CHIRAKADA VADAKATHIL, KUREEPUZHA CHERRY SAKTHIKULANGARA, KOLLAM NOW RESIDING AT MODEST APARTMENTS MANAYILKULANGARA CHEERY, THIRUMULLAVARAM POST, KOLLAM.** **BY ADVS.SRI.R.KISHORE** **SRI.ARUN BABU** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **-----------------------------------------------------------------STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **jm/-** ## **Crl.Rev.Pet.No. 1279 of 2013 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** ## **A1: COPY OF THE DISCHARGE CARD ISSUED FROM THE SIMS, HOSPITAL, KOLLAM** ## **RESPONDENT'S EXHIBITS : NIL** ## **\\ TRUE COPY \\** **PA TO JUDGE** **jm/** ## **K.HARILAL, J.** = = = = = = = = = = ## **Crl.R.P.No.1279 of 2013** = = = = = = = = = = = = = = Dated this the 1[st] day of July, 2013 ## **O R D E R** The Revision Petitioner is the first accused in C.C.No.785/2001 on the files of the Judicial First Class Magistrate's Court, Karunagapally. He was prosecuted along with the second accused for the offences punishable under Sections 341, 332 and 510 read with Sec.34 of the Indian Penal Code. After trial, the learned Magistrate found the Revision petitioner guilty of the offences punishable under Sections 332 and 510 of the IPC and convicted thereunder. The Revision petitioner was found not guilty under Sec.341 IPC. He was sentenced to undergo simple imprisonment for two months under Sec.332 IPC and to pay a fine of Rs.1,000/- each and in default, to undergo simple imprisonment for one month each and also convicted for imprisonment of 24 hours and to pay a fine of Rs.10/- each under Sec.510 of the IPC. In default, to undergo simple imprisonment for one day. Though he had preferred an **Crl.R.P.No.1279 of 2013** 2 appeal before the Court of Additional District and Sessions Judge (Adhoc)-1, Kollam, the Appellate Court also confirmed the conviction and sentence as such without any interference. This revision petition is filed challenging the concurrent findings of conviction and sentence entered against the Revision petitioner, on various grounds. 2. The learned counsel for the Revision petitioner submits that the conviction and sentence thereunder are erroneous and liable to be set aside. In appeal, in the absence of counsel for the Revision petitioner, no counsel was appointed by the court below for the Revision petitioner to argue the Appeal and thereby prejudice was caused to the Revision petitioner. The second point argued is that Ext.P3 medical certificate issued by PW3 Doctor is not sufficient to base conviction. The third point is that no independent witness was examined to prove the prosecution case. 3. It is the prosecution case that on 03/06/2001 at about 6.40 p.m., while PW4, who is the Police Constable attached to the Chavara Police station, was attending his **Crl.R.P.No.1279 of 2013** 3 official duty at the junction and he could see the misconduct and misbehaviour of the accused persons, two in number in the public place i.e., the middle portion of the road which was causing annoyance to the public. So he approached them and informed them to move away from the highway area and that act provocated them. They caught hold of his shirt and pushed him back, as a result, the shirt was torned off, then A2 hit on his left shoulder which caused pain. Thus, they prevented him from discharging his official duty and thereby they committed the offences for which they were prosecuted. 4. To prove the prosecution case, PWs. 1 to 4 were examined and Exts.P1 to P5 were marked. The accused entered appearance and he pleaded not guilty and stood for trial. No evidence was adduced by the accused. PWs.4 and 5 are the occurrence witnesses. PW4 deposed that while he was discharging his official duty and regulating traffic on the public road, A1 caught hold of his uniform and A2 beat on left side shoulder which caused pain. They have torned off his shirt also and the act of the accused prevented him **Crl.R.P.No.1279 of 2013** 4 from discharging his official duty. He deposed in terms with his statement in Ext.P4 F.I. Statement. It is seen that PW4 was cross-examined at length into minute details; nothing tangible had been brought out to discredit his evidence. Nothing brought out to believe the defence contention that he was not in discharging his official duty. Even in cross examination, he has got strong version about each and every overt act of each accused and he asserted in tune with his statement in Ext.P4 F.I. Statement. The evidence of PW4 is supported by the evidence of PW8, the Head Constable, who reached the place of occurrence on receiving the information. He deposed that he could see the taxi drivers and other local people in that locality caught hold of the accused and the shirt of PW4 was torned off and he was also informed of his pain and suffering. He was told that the accused were the aggressors who obstructed his official duty and assaulted him. So, he arrested the accused and taken to the Police station, registered a crime and he was subjected to medical examination by PW3, Doctor. The above evidence is corroborated by the evidence of PW3, **Crl.R.P.No.1279 of 2013** 5 Doctor who examined PW4 and had issued Ext.P1 wound certificate. He certified that the injuries noted in Ext.P1 is that pain on back of left shoulder which corresponds the overt act alleged against A2. The alleged cause of injury stated in Ext.P1 is that beat on the back of left shoulder with bare hands which also correspond the overt act alleged against A2. Thus, the testimonies of PWs.3 to 5 coupled with Exts. P1, P4 and P5, convincingly proved the offence alleged against the Revision petitioner, beyond reasonable doubt. I do not find any kind of perversity in the appreciation of evidence. In the absence of any kind of perversity, I am not inclined to re-appreciate the entire evidence once again. 5. As regards the first point, it is seen that though the counsel was absent, the appellate court has meticulously considered the testimonies of all the witnesses and the documents produced along with the prosecution case and found satisfactory to prove the guilt of the accused. In **Bani Singh vs. State of U.P** [AIR 1996 SC 2439], the Supreme Court held that even in the absence of counsel for **Crl.R.P.No.1279 of 2013** 6 the appellant, a criminal appeal can be disposed of on merits and therefore, I find that the above argument is totally unsustainable and no prejudice was caused to the accused. As regards drunkenness certificate, it is seen that when the Doctor was examined as PW3, no question was put to him so as to challenge the veracity or reliability of the medical examination, which the Doctor has conducted. In the absence of any challenge in evidence, that point also pales to insignificance. As regards the absence of independent witnesses, it could be seen that PWs.1 and 2 were examined. They deposed against the prosecution case. But, it could be seen that the evidence of PWs.4 and 8 credible and trustworthy so as to base conviction. In the absence of independent witnesses, what is required is to scrutinize the evidence of other witnesses or injured with due care and caution. Here the courts below, keeping in mind the above fact, scrutinized the evidence of PWs.4 and 8 meticulously with due care and caution and based conviction on their evidence. 6. Moreover, the accused has no case that PW4 was 7 ## **Crl.R.P.No.1279 of 2013** nurturing any kind of enmity or vengeance against the accused and in the absence of any such allegation, his evidence is sufficient to base conviction. 7. Therefore, there is no illegality or impropriety in the findings and so also there is no perversity in the appreciation of evidence, from which those findings have been arrived. Coming to sentence, the trial court has already taken a lenient view by awarding minimum sentence only. I do not find any reason to interfere with the sentence also. Consequently, I confirm the conviction and sentence. This revision petition is dismissed accordingly. **K.HARILAL, JUDGE.** ## **Stu** **//True copy//** **P.A to Judge.**