Ravi s/o Chathukutty, Sunil s/o Ramakrishnan, Manoj s/o Kuttan, Bhaskaran s/o Kuttappu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938** **CRL.REV.PET.NO. 922 OF 2004 (A) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.550/2002 OF III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK-I,THRISSUR DATED 20.02.2004** **AGAINST THE JUDGMENT IN CC NO.738/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,CHAVAKKAD DATED 20.11.2002** **-------------------------------------** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED:** **-----------------------------------------** **1. RAVI S/O. CHATHUKUTTY, CHAMMAPPILLY VEETTIL,** **THOYAKKAVU DESOM, VENKITANGU VILLAGE.** **2. SUNIL S/O. RAMAKRISHNAN, VALIYAKATH VEETTIL, THOYAKKAVU DESOM, VENKIDANGU VILLAGE.** **3. MANOJ, S/O. KUTTAN, THULUSSERY VEETTIL, THOYAKKAVU DESOM, VENKIDANGU VILLAGE.** **4. BHASKARAN, S/O KUTTAPPU, MUTTATH VEETTIL, KALANI DESOM, PAVARATTY VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. MADHUBEN M.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.922 of 2004 ---------------------------------Dated this the 24[th] day of May, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.550 of 2002 of the 3[rd] Additional Sessions Judge, Adhoc, Fast Track-I, Thrissur. They were charge sheeted in C.C. No.738 of 1999 before the Judicial First Class Magistrate Court, Chavakkad for having committed the offences punishable under Secs.323 and 326 read with Sec.34 of the Indian Penal Code ('IPC' for short). The charge against the accused was that on 23.02.1999 at 4 p.m., due to previous enmity, accused nos.1 to 3 wrongfully restrained PW1 and the 4[th] accused assaulted him with an iron rod as a result, PW1 sustained serious injuries. For this, Pavaratty Police registered the crime and after completing investigation, Sub Inspector of Police, Pavaratty laid charge in the trial court. 2. To substantiate the allegation, prosecution examined PW1 to PW6 and marked Exts.P1 to P6 as documentary evidence. MO1 iron rod was admitted as Crl. R.P. No.922 of 2004 2 material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec.313 of the Code of Criminal Procedure. He did not adduce any defence evidence. The learned Magistrate convicted A1 to A4 under Sec.326 read with Sec.34 IPC and sentenced thereunder. Against that, they preferred Criminal Appeal No.550 of 2002 but, the learned Third Additional Sessions Judge, Fast Track-I, Thrissur dismissed the appeal. Being aggrieved by that, the revision petitioners preferred this revision petition. 3. The main contention advanced by the learned counsel appearing for the revision petitioners is that there is a delay of three days in giving the First Information Statement to the Police. PW1 did not know A4. On the next day, PW2 visited PW1 and informed the name of A4 to PW1 thereby, foisted a false case against A4. 4. In reply to the argument, the learned Public Prosecutor submitted that the oral evidence of PW1 and PW2 is corroborating and no reason to disbelieve their Crl. R.P. No.922 of 2004 3 evidence. The medical evidence Ext.P3 is also supporting that evidence and no reason to interfere in the finding. 5. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. 6. From the argument of both sides, it appears that the courts below did not consider the evidence properly and there is misreading of evidence. Many Crl. R.P. No.922 of 2004 4 factors which ought to have been considered in favour of the accused were omitted. Hence I examined the evidence in this case. The occurrence was deposed by PW1, the injured. His evidence shows that on 23.02.1999 at 4 p.m., he went to the shop of one Prabhakaran for drinking tea, at that time, the accused came there, A1 to A3 caught hold him and A4 beat him with an iron rod. Accused nos.1 to 3 thereafter assaulted on his chest and head and kicked him on the various part of his body. Gopi and Anandan saw the incident. On the next day, he went to the hospital, where the Police recorded Ext.P1 statement. PW1 identified MO1 weapon. This witness was cross examined by the defence counsel about the previous statement made by him to the Police. Relevant matters were questioned, but no contradictions were highlighted by the learned counsel. Another independent witness PW2 present there supported the oral evidence of PW1 and identified A1 to A4. According to PW2, A1 caught hold on the shirt of PW1 and A4 beat him with MO1 iron rod. Others also assaulted PW1. Analysing the Crl. R.P. No.922 of 2004 5 evidence in this case, it is found that the evidence with regard to the overt act of A1 to A3 is not believable. Apex Court in **Badri v. State of Rajasthan [1976 Supreme Court Cases (Cri) 60]** held that the testimony of a solitary witness can be relied on for a conviction. The court is concerned with the quality of evidence and not the quantity. The court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. 7. The evidence of PW2 is not fully supporting the evidence of PW1. PW1 has a case that A1 to A3 rounded him and A4 assaulted him. But, PW2 deposed that A1 caught hold on the shirt of PW1 and A4 and others assaulted him. This inconsistency in the evidence of PW2 shows that the involvement of A1 to A3 is not proved. According to the Evidence Act, no particular number of witnesses are required for proof of a fact, it is a sound and well-established rule of law that court is concerned only with the quality of the evidence and not with the quantity. Apex Court in **State of U.P. v.** Crl. R.P. No.922 of 2004 6 ## **Iftikhar khan and others [AIR 1973 Supreme Court** **863]** held that if the evidence really raises a reasonable doubt in the mind of the court regarding the participation of the accused in the crime, that doubt must be resolved in his favour. But the benefit of doubt to which the accused is entitled is reasonable doubt - the doubt which rational thinking will reasonably, honestly and conscientiously entertain and not the doubt of timid mind. It is true that the onest of proving all the ingredients to establish the charge against the accused lies upon the prosecution. The accused A1 to A3 cannot be convicted on the basis of a suspicion or conjecture. Analysing the facts and circumstances in this case, I am of the opinion that the revision petitioners 1 to 3 are entitled to get the benefit of doubt. The courts below failed to appreciate that position and convicted them. 8. The medical evidence is relevant in this context. PW5 examined PW1 and issued Ext.P3 wound certificate. It shows that on 24.02.1999 at 9.15 p.m., PW5 examined PW1 and issued Ext.P3 certificate. She Crl. R.P. No.922 of 2004 7 noticed a contusion over right hand, pain over dorsal of right hand, pain over left side of face and fracture of bone of fifth metacarpal bone right hand. The medical evidence in Ext.P3 is corroborating the oral testimony of PW1 and he sustained injury with MO1 weapon. PW5 opined that fracture could be possible due to contact with MO1. Therefore, the offence under Sec.326 IPC against A4 is proved in this case. 9. From the evidence of PW3, it is clear that he arrived at the place of occurrence and recorded Ext.P1 statement. On the basis of that, PW6 Sub Inspector of Police, Pavaratty registered a crime. Ext.P4 is the First Information Report. He also arrived at the place of occurrence and prepared Ext.P5 mahazar. A1 was arrested on 26.02.1999. A2 to A4 surrendered before the Police station on 10.03.1999. The weapon used by A4 was recovered by the Sub Inspector. A close scrutiny of this evidence, it is clear that A4 assaulted PW1. Even though there is some contradiction in the oral testimony of PW2 with regard to the overt act of A1 to A3, they have a Crl. R.P. No.922 of 2004 8 consistent case with the overt act of A4. Therefore, trust worthy evidence given by the witness regarding the overt act of A4 is believable. Therefore, A1 to A3 are entitled to get the benefit of doubt. 10. In the result, the conviction and sentence passed by the trial court which was confirmed by the appellate court against A1 to A4 under Sec.323 IPC and A1 to A3 under Sec.326 IPC are set aside. The conviction and sentence against A4 under Sec.326 IPC is confirmed. He is directed to surrender in the trial court to undergo the sentence, failing which, the learned Judicial First Class Magistrate, Chavakkad shall issue non bailable warrant against the accused forthwith. Revision petition is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS/27/05/2016