Rejith Kumar v. Sub Inspector of Police, Chavakkad & State of Kerala (and Addl.R3)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 30TH DAY OF OCTOBER 2020/8TH KARTHIKA, 1942** **Crl.Rev.Pet.No.2710 OF 2009** **AGAINST THE JUDGMENT IN CRA 10/2005 OF ADDITIONAL SESSIONS COURT FAST TRACK-I, THRISSUR DTD.6.8.2009** **CC 564/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD DTD.22.12.2004** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **REJITH KUMAR, S/O.RAMAKRISHNAN, KAHIRAPARAMBIL HOUSE, PUNNA DESOM, MANATHALA VILLAGE.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 SUB INSPECTOR OF POLICE, CHAVAKKAD. 2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R3 PRAKASHAN, * (DIED) AGED 66 YEARS, S/O.KUNJIKRISHNAN, KANJIRAPARAMBIL HOUSE, PUNNA DESOM, MANATHALA VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. (ADDL.R3 IS IMPLEADED AS PER ORDER DATED 09/07/2013 IN CRL.M.A.No.4678/2013) *ADDL.R3 has*(ADDL.R3 has expired.Legal heir of additional R3 expired. is impleaded as per order dtd.26.8.2020 in Crl.M.A.No.1/2020). Legal heir Jimna, aged 30 years, D/o.Jayaprakash, Kanjiraparambil House, Punna, Chavakkad.P.O., Thrissur District-680506.** **R1-2 BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ ADDL.R3 BY ADV. SRI.R.ANIL R3 BY ADV. SRI.M.SUNILKUMAR R3 BY ADV. SRI.SUJESH MENON V.B. R3 BY ADV. SRI.THOMAS ABRAHAM NILACKAPPILLIL R3 BY ADV. SRI.T.ANIL KUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-10-2020, THE COURT ON 30-10-2020 PASSED THE FOLLOWING:** Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** Dated this the 30[th] day of October, 2020 The revision petitioner was the accused in C.C.No.564/1999 on the file of the Judicial First Class Magistrate Court, Chavakkad and the appellant in Crl.A.No.10/2005 on the file of the Additional Sessions Court, Fast Track-I, Thrissur. The offence alleged against the accused is punishable under Section 326 of the Indian Penal Code (hereinafter referred to as 'the IPC'). The trial court convicted and sentenced the accused to undergo rigorous imprisonment for one year and also to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for three months more. The appeal was dismissed confirming the conviction and sentence imposed by the trial court. Hence the revision petitioner/accused has preferred this revision. Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** 2. The prosecution case in brief is that on 12.9.1998 at 9.15 pm. at Punna Junction, while PW1 was going on his way home after attending a temple committee meeting, out of prior enmity, the accused inflicted hurt and grievous hurt to PW1 with MO1 pipe and thereby committed the offence punishable under Section 326 of the IPC. 3. During the trial of the case, PWs.1 to 8 were examined and marked Exts.P1 to P5 on prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. The accused further stated that PW1 is one of his close relatives. According to him, there was a family dispute between them. In connection with the dispute, PW1 assaulted him in the year 1996 and accordingly he was convicted by the court. He also stated Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** that PW1 had been nursing enmity towards him ever since the prior case which ended in the conviction of PW1. He further stated that on the very same date of occurrence, PW1 assaulted him for which there was a counter case between the parties. To prove his contentions, Exts.D1 to D4 were marked. 4. For the occurrence in question, PW1 lodged Ext.P1 FIS before PW7, the Sub Inspector of Police, Chavakkad Police Station. PW7 registered Ext.P4 FIR for the offence punishable under Section 326 of the IPC against the accused. Initial investigation was done by PW8 Head Constable attached to the Chavakkad Police Station. Immediately after the occurrence, PW1 was examined by PW6. PW6 noted fracture left fibula on the body of the deceased. PW6 confirmed the fracture on the strength of X-ray examination. According to PW6, the injuries could be caused to PW1 with MO1 pipe. Since there was a Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** fracture to the bone, the injured was referred to Orthopaedic surgeon on the same day itself. 5. PW1 testified that when he was going on his way home after attending a meeting of the Sreedharma Sastha Temple Committee, the accused assaulted him with MO1 pipe on 12.9.1998 at 9.15 pm. at Punna Kottaramkunnu centre whereby PW1 sustained hurt and grievous hurt. Ext.P3 wound certificate would show that PW1 sustained a fracture on his left fibula. PWs.2 and 3 who were present along with PW1 at the time of incident supported the prosecution case. The trial court as well as the appellate court believed the version of PWs.1 to 3 and 6 and thereafter entered a finding that the prosecution has succeeded in proving the offence under Section 326 of the IPC beyond doubt. 6. Assailing the conviction and sentence, the learned counsel for the revision petitioner Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** Sri.T.G.Rajendran submitted that in respect of the very same occurrence police registered Crime No.260/1998 of Chavakkad Police Station against PW1. After investigation, according to the learned counsel for the revision petitioner, the police laid charge sheet against PW1 for the offence punishable under Section 324 of the IPC in which the learned Magistrate took cognizance of the offence punishable under Section 324 of the IPC and issued summons to PW1. The learned counsel further contended that the said case was tried separately by the very same court and acquitted PW1 by judgment dated 19.11.2003. According to the learned counsel for the revision petitioner, instead of trying the case and counter case together, the trial court proceeded with the trial against PW1 in C.C.No.567/1999 and ultimately acquitted him on 19.11.2003. The learned counsel for the revision petitioner maintained that the case and counter case were Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** not tried together by the trial court in accordance with law. It is further contended that the injury sustained by the accused has not been explained away by the prosecution and the prosecution had suppressed the genesis and origin of the crime. 7. The learned counsel for the additional 3[rd] respondent submitted that the injury sustained by the accused in the very same occurrence was minor and superficial and the same is not sufficient to hold that the prosecution has suppressed the genesis of the case. It is further contended that the trial court as well as the appellate court meticulously considered the entire evidence on record and concurrently held that the accused has committed the offence punishable under Section 326 of the IPC beyond doubt. Elaborating on the submission, the learned counsel for the additional 3[rd] respondent submitted that unless there is a material irregularity or Crl.R.P.No.2710 of 2009 ..8.. infirmity vitiating the findings of the two courts below, this Court is not justified in reversing the finding of the trial court as well as the appellate court in exercise of the powers under Section 401 of the Cr.P.C. 8. The learned Senior Public Prosecutor on the other hand submitted that the injury sustained by PW1 was an injury as defined under Section 320 of the IPC and the evidence let in by PWs.1 to 3 and 6 would irresistibly lead to the inference that the accused had committed the offence beyond doubt and no interference in revision is warranted on the ground that case and counter case had been decided separately. 9. Heard Sri.T.G.Rajendran, the learned counsel for the revision petitioner, Sri.R.Anil, the learned counsel for the additional 3[rd] respondent and Sri.M.S.Breez, learned Public Prosecutor for the State. Crl.R.P.No.2710 of 2009 **==> picture [22 x 8] intentionally omitted <==** 10. It is clear from the evidence of PWs.1, 7 and 8 that in respect of the very same occurrence, counter case was registered against PW1 for the offence punishable under Section 324 of the IPC. The learned counsel for the revision petitioner produced the copy of the judgment in C.C.No.567/1999 on the file of the Judicial First Class Magistrate Court, Chavakkad whereby Jayaprakasan, S/o.Kanhiraparambil Kunhikrishnan who is the additional 3[rd] respondent in this revision petition (PW1) was tried for the offence under Section 324 of the IPC and acquitted on 19.11.2003. It is disclosed from the judgment that the accused in this case sustained injuries. Ext.D3 is the photocopy of the wound certificate issued to the accused in this case in connection with Crime No.260/1998 of the Chavakkad Police Station pertaining to C.C.No.567/1999. Ext.D3 would show that Rejithkumar, the accused in this case sustained lacerated wound over left eyelid 0.3 cm x 0.5 Crl.R.P.No.2710 of 2009 **==> picture [28 x 8] intentionally omitted <==** cm on 12.9.1998 at 9 pm. On going through Ext.D3, there is nothing to indicate that the injury sustained by the accused over left eyelid 0.3 cm. X 0.5 cm. is a minor injury. The injury was sustained by the accused on the vital part of his body. When the accused sustained an injury in the very same occurrence it is the duty of the prosecution to explain the genesis of the occurrence. The same was not done in this case. 11. Even though the accused squarely raised the plea of counter case and has also cross-examined the witnesses making suggestions about the version of the accused and how the fatal injury was caused to the accused, the learned trial Judge in his judgment has not considered the above aspect in the correct legal perspective. Regarding the facts of the counter case, the prosecution has not given a true picture. Firstly, the First Information Statement given by the accused in Crime Crl.R.P.No.2710 of 2009 **==> picture [28 x 8] intentionally omitted <==** No.260/1998 of the Chavakkad Police Station for the offence under Section 324 of the IPC has not been produced in this case. Secondly, the Doctor, who treated the accused and issued Ext.D3 wound certificate, was not examined before the court below to ascertain whether the injury sustained by the accused was minor and superficial in nature as contended by the prosecution. Ext.D3 wound certificate was not produced by the prosecution. It was suppressed. The trial court took the view that the injury sustained by the accused is minor and superficial after relying on Ext.D3 wound certificate produced by the accused. This procedure is evidently wrong. Thirdly, the final report prepared by the Investigating Officer in C.C.No.567/1999 pertaining to Crime No.260/1998 of Chavakkad Police Station was not produced in this case. PW1 had not adduced any evidence in his chiefexamination explaining the circumstances under which the Crl.R.P.No.2710 of 2009 **==> picture [28 x 8] intentionally omitted <==** accused also sustained injury in the very same occurrence. 12. In **Lakshmi Singh and Others** v. **State of Bihar** [(1976)4 SCC 394], **Amarjit Singh** v. **State of Haryana** [(2009)16 SCC 649], **State of U.P.** v. **Gajey Singh and others** [JT 2009 (3) SC 1], the Apex Court held that the non-explanation of the injuries sustained by the accused at the time of occurrence or in the course of altercation, is a very important circumstance from which the court can draw the following inferences:- 1. That the prosecution has suppressed the genesis and origin of occurrence and has thus not presented the true version. 2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable. 3. That in a case there is defence version, which explains the injuries on the person of the Crl.R.P.No.2710 of 2009 **==> picture [28 x 8] intentionally omitted <==** accused, it is rendered probable so as to throw doubt on the prosecution case. 13. The learned counsel for the revision petitioner Sri.T.G.Rajendran, submitted that though the records in the counter case were not produced by the prosecution, the revision petitioner produced judgment of the counter case in this revision to prove that the prosecution suppressed the genesis of the crime. According to the learned counsel for the revision petitioner, the prosecution was obliged to produce the FIR and Final Report in the counter case as held by the Apex Court in **Sudir v. State of M.P. [2001 (1) KLT 682 (SC)]** . The learned counsel argued that the prosecution had deliberately suppressed the production of material records in the counter case to deny the benefit to the revision petitioner and the conduct of the prosecution had seriously prejudiced the revision petitioner. Crl.R.P.No.2710 of 2009 ..14.. 14. It is a fact that there was a counter case between the same parties. It ended in acquittal earlier. It was tried separately. The scene of occurrence and the time of occurrence in both the case are one and the same. The accused in this case is PW1 in the counter case. PW1 in the counter case is the accused in this case. A Division Bench of this Court in **Reghu v. State of Kerala [2013(1) KLT SN 86 (C.No.70)]** had an occasion to consider trial of the case and counter case in respect of the very same incident. In paragraphs 8 and 9 of the judgment read as follows:- _“8. When there is a main case and a counter case in respect of the same incident and the prosecution has contradictory versions in the main case and the counter case, the proper procedure to be adopted for trial of the cases is as declared by the Supreme Court in Sudhir's case (supra). The main case and the counter case are to be tried one after other. Though the evidence in one case cannot looked into in the other, both the cases are to disposed by separate judgments on the same day_ Crl.R.P.No.2710 of 2009 ..15.. _so as to avoid conflicting decisions. Unfortunately learned Sessions Judge did not consider the said aspect while trying the appellant. True, Ext.P14 judgment shows that the counter case was disposed on 26.6.2001 earlier to the date of trial of this case. In such circumstances no purpose will be served by remanding the case back to the Sessions Court, to try this case along with the counter case for the irregularity committed._ _9. When there is a main case and a counter case, the prosecution is bound to produce the FIR, the scene mahazar and the final report in the counter case in the main case so as to enable the court to consider the origin and genesis of the incident. Prosecution did not make available either the FIR or the final report in Counter the case though Ext.P3 scene mahazar is common to both the main case and the counter case. Even when PW17 was cross examined, he deposed that second accused sustained injuries in the same incident on that night. In re-examination an attempt was made by the Prosecutor to show that PW14 without reference to the case records in the counter case cannot disclose whether second accused sustained the injuries in the same incident, as admitted in cross examination. But even then PW17 has no case that second accused did not sustain the_ Crl.R.P.No.2710 of 2009 ..16.. _injuries in the incident. Evidence of PW3 the sister of PW1 and an inmate of the same house prove that the said incident also occurred at the same time at scene of occurrence. In such circumstances the non-production of the FIR and the final report in the counter case definitely materially prejudiced the defence.”_ 15. Evidence of PWs.1 to 3, PWs.7 and 8 would indicate that in the very same occurrence the accused also sustained injuries. Ext.D3 wound certificate produced by the accused does not indicate that the injuries are minor and superficial as contended by the prosecution. PW1 was prosecuted for an offence under Section 324 of the IPC in the said case. Under the circumstances, it can be safely concluded that the accused sustained injuries in the very same occurrence and the prosecution failed to produce First Information Report and Final Report in the counter case as evidence in this case. The conduct of the prosecution has materially prejudiced the defence. The Crl.R.P.No.2710 of 2009 **==> picture [28 x 8] intentionally omitted <==** number of injuries sustained by the accused is not always a safe criterion to decide the case against the accused. Merely because PW1 sustained a grievous injury when compared to the injury sustained by the accused, it is not a ground to convict the accused in this case. The prosecution is obliged to prove the case with reliable evidence. The prosecution has to further establish that the injury so caused on the accused probabilised the version of PW1. In this case the prosecution had suppressed the injury sustained by the accused. Under the circumstances, the possibility of PW1 and the accused sustaining injuries in the very same occurrence in some other manner cannot be brushed aside. Hence, the revision petitioner/accused is entitled to get benefit of reasonable doubt on the failure of the prosecution to conclusively prove the offence against him. Hence the conviction against the revision petitioner cannot be sustained. Crl.R.P.No.2710 of 2009 **==> picture [28 x 8] intentionally omitted <==** 16. The conviction and sentence against the revision petitioner/accused in C.C.No.564/1999 on the file of the Judicial First Class Magistrate Court, Chavakkad which has been confirmed in Crl.A.No.10/2005 on the file of the Additional Sessions Court, Fast Track-I, Thrissur for the offence under Section 326 of the IPC stand set aside. The revision petitioner/accused is found not guilty of the offence under Section 326 of the IPC and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is deposited during the pendency of the proceedings the same shall be released to the revision petitioner in accordance with law. Pending applications, if any, stand disposed of. The criminal revision petition is allowed accordingly. Sd/- **N.ANIL KUMAR, JUDGE** skj