Raju and M.K. Sudhakaran v. Station House Officer, Kasaragod and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943 CRL.REV.PET NO. 3080 OF 2006** **AGAINST THE JUDGMENT IN CRA 229/2004 OF ADDITIONAL SESSIONS COURT (ADHOC-III), KASARAGODE CC 794/1999 OF CHIEF JUDICIAL MAGISTRATE ,KASARAGOD** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** 1 RAJU, S/O MALINGAN, PACHAKKAD, RAMDAS NAGAR, KUDLU VILLAGE, KASARAGODE TALUK. 2 M.K.SUDHAKARAN S/O.RAMACHANDRA PARAKATTA ROAD, MEEPUGURI KUDLU VILLAGE, KASARAGODE TALUK. BY ADV SRI.T.G.RAJENDRAN ## **RESPONDENTS/COMPLAINANT & STATE:** 1 STATION HOUSE OFFICER KASARAGODE. 2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI SANAL P RAJ,PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.3080/2006 ## -:2:- ## O R D E R Dated this the 13[th ] day of December, 2021 This revision petition has been filed challenging the judgment in Crl.Appeal No.229/2004 dated 21[st] June, 2006 on the file of the Additional Sessions Court (Adhoc) III, Kasaragod (for short, the appellate court) confirming the judgment in CC 794/1999 (for short, the trial court) dated 19[th] May, 2004 on the file of the Chief Judicial Magistrate Court, Kasaragod. 2. The accused are the revision petitioners. They faced trial for the offence punishable under Sections 448 and 326 of IPC. 3. The prosecution case in short is that on 12/9/1999 at about 7.00 p.m, the accused in furtherance of their common intention trespassed into the house of PW1 at Pachakkadu, abused his wife and children in filthy language and when PW1 questioned it, the accused No.2 pushed him and thereafter accused No.1 assaulted him with an iron rod on his left leg causing grievous injuries and thereby committed the offence. 4. On receipt of summons, the accused appeared at the Crl.R.P.No.3080/2006 -:3:- trial court. After hearing both sides, the trial court framed charge against the accused under Sections 448 and 326 r/w S.34 of IPC. The charge was read over and explained to the accused who pleaded not guilty. PWs 1 to 7 were examined and Exts.P1 to P7 were marked on the side of the prosecution. DW1 was examined and Exts.D1 to D2 were marked on the side of the defence. Considering the evidence on record, the trial court found the accused guilty under Sections 448 and 326 of IPC and they were convicted for the said offence. The accused were sentenced to pay a fine of `500/- each, in default to suffer simple imprisonment for two months each for the offence u/s 448 of IPC and sentenced to undergo simple imprisonment for six months each and to pay a fine of `2,000/- each, in default to suffer simple imprisonment for two months each for the offence u/s 326 of IPC. In appeal, the appellate court confirmed the conviction and sentence passed by the trial court. Challenging the conviction and sentence passed by both the courts below, the accused preferred this revision petition. 5. I have heard Sri.T.G.Rajendran, the learned counsel for the revision petitioners and Sri.Sanal P.Raj, the learned Public Prosecutor. Crl.R.P.No.3080/2006 -:4:- 6. The learned counsel for the revision petitioners impeached the finding of the courts below and the resultant finding of guilt mainly on four grounds. (i) The conviction was based on the interested testimony of PW1 and PW4 and no independent witness was examined. (ii) The weapon used was not recovered and, hence, Section 326 of IPC is not attracted. (iii) PW1 did not mention the name of the accused to PW5, the doctor. (iv) The prosecution failed to explain the injuries sustained by the accused. 7. The prosecution mainly relied on the evidence of Pws1, 4 and 5 to prove the incident and to fix the culpability on the accused. PW1 is the injured. He gave evidence that on 12/9/1999 at about 7.00 p.m. when he reached the house after his work, he saw the accused Nos. 1 and 2 standing in the courtyard of his house and scolding his wife and daughter. He further deposed that when he intervened, the accused No.2 pushed him and he fell down. Then, the accused No.1 beat him on his left leg with an iron rod and he sustained injuries. He further deposed that he was then taken to Government Hospital, Kasaragod. He identified the accused. PW4 is the wife of PW1. She gave evidence in tune with the evidence given by PW1. PW5 was the Assistant Surgeon Crl.R.P.No.3080/2006 -:5:- at Government Hospital, Kasaragod. He gave evidence that on 12/9/1999, he examined PW1 and issued Ext.P2 wound certificate. The injury sustained by PW1 has been noted in Ext.P2 wound certificate. He deposed that the injury could be caused by beating with an iron rod. 8. Even though PWs1 and 4 were cross-examined in length, nothing tangible could be extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. The learned counsel for the revision petitioners submitted that no independent witness was examined and being interested witnesses, PWs1 and 4, cannot be believed. I cannot subscribe to the said argument. PW1 is the injured. It is trite that the evidence of the injured witness has to be given much weightage. PWs1 and 4 clearly deposed that the accused attacked PW1 and inflicted injury on him with an iron rod. They gave reliable, consistent and credible version of the crime and their evidence inspires confidence. There is no vital contradictions or material omissions in the evidence of PWs1 and 4. They clearly deposed the manner in which the accused attacked PW1 and the nature of the weapon used by them and parts of the body of PW1 whereupon the injuries were inflicted by the accused. The evidence of PWs1 and Crl.R.P.No.3080/2006 -:6:- 4 gets corroboration from the medical evidence of PW5. PW5 deposed that immediately after the incident, he treated PW1 and he has noted the injuries sustained by PW1 in Ext.P2 wound certificate. It would show that PW1 has sustained fracture in the incident. It is true that the names of the accused were not spoken to the doctor by PW1. But the said omission is not significant inasmuch as it has come out in evidence that the accused are known to PW1 and PW4 and both of them clearly identified the accused at the court. The evidence given by PWs1 and 4 as well as PW5 are reliable and convincing and could be relied on to prove the incident and to fix the culpability on the accused. Both the courts below concurrently believed the testimony of PWs1, 4 and 5 and relied on it to base the conviction. 9. The learned counsel for the revision petitioners submitted that since the weapon was not recovered, the conviction u/s 326 of IPC cannot be sustained. I cannot subscribe to the said argument. PWs1 and 4 gave consistent evidence that the accused used an iron rod to beat PW1. PW5, the doctor, gave evidence that the injury sustained by PW1 could be the result of beating with an iron rod. PW7 who has also treated PW1 for the injury sustained on his leg gave evidence that injury could be the Crl.R.P.No.3080/2006 -:7:- result of beating with an iron rod. So even in the absence of the recovery, the offence u/s 326 of IPC has been established inasmuch as the iron rod is a weapon that falls within S.324 of IPC and there is evidence on record to show that PW1 has sustained fracture in the incident. 10. The learned counsel next submitted that the injuries sustained by the accused as evident from Exts.D1 and D2 have not been explained by the prosecution and it is fatal to the prosecution case. Exts.D1 and D2 would show that the injuries are only minor in nature. It is settled that if the injury sustained by the accused are minor in nature compared to the injury sustained by the victim, the prosecution need not explain the injuries of the accused. That apart, the time of incident shown in Exts.D1 and D2 and the time of the incident in this case is different. As stated already, the prosecution has succeeded in establishing through the oral testimony of PWs1 and 4 as well as the medical evidence of PWs5 and 7 that the accused have trespassed into the property of PWs1 and 4 and caused grievous hurt on PW1 with a dangerous weapon. 11. It is settled that the revisional jurisdiction under Sections 397 and 401 of Cr.P.C is very restricted and under the Crl.R.P.No.3080/2006 -:8:- exercise of revisional jurisdiction, the High Court cannot embark upon reappreciation of evidence. In _**Shlok Bhardwaj v. Runika Bhardwarj and others**_ [(2015) 2 SCC 721), the Apex Court held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. Since there are concurrent findings of the two courts below, this Court would be circumspect in invoking the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure. It is only if the decision rendered by the two courts below can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. I have carefully gone through the entire records, evidence, proceedings and the judgments of the two courts below. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with the court. Therefore, the conviction passed by the courts below is only to be sustained. 12. The accused were sentenced to pay a fine of `500/each, in default to suffer simple imprisonment for two months each for the offence u/s 448 of IPC and sentenced to undergo simple imprisonment for six months each and to pay a fine of `2,000/- each, in default to suffer simple imprisonment for two months each for the offence u/s 326 of IPC. The accused are first Crl.R.P.No.3080/2006 -:9:- time offenders. Considering the fact that they are first time offenders and that they have been undergoing the ordeal of trial since 2004, I am of the view that substantive sentence imposed by the courts below for the offence u/s 326 of IPC can be reduced to three months. In the light of the above findings, the conviction passed by the courts below is sustained. The substantive sentence u/s 326 of IPC is reduced to simple imprisonment for three months each, with no change in the fine and default sentence. Criminal Revision Petition is allowed in part as above. **Sd/-** ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**