Robinson Biju Robinson 'Karunya' v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934 Crl.Rev.Pet.No. 719 of 2002 ( ) ------------------------------CC.237/1994 of J.M.F.C.,KATTAKADA REVISION PETITIONER(S)/DEFACTO COMPLAINANT: ------------------------------------------ ROBINSON BIJU ROBIN,"KARUNYA", MANGATTUKADAVU, VILAVOOR VILLAGE, THIRUVANANTHAPURAM BY ADVS.SRI.M.BALAGOVINDAN SRI.P.M.JOSEPH COMPLAINANT(S)/ACCUSED: ----------------------- 1. STATE OF KERALA,REPRESENTED BY ITS - PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 2. RAVEENDRAN,S/O.BHANU NADAR, KAVALATHU KATTAKADA VEEDU,MANGATTUKADAVU,VILAVOORKKAL DESOM VILAVOORKKAL VILLAGE. 3. BHANU NADAR,MURUKAN,KAVALATH KATTAKADA VEEDU,MANGATTUKADAVU,VILAVOORKKAL DESOM,VILAVOORKKAL VILLAGE. 4. SREEKUMAR S/O.BHANU NADAR,KAVALATH KATTAKKADA VEEDU,MANGATTUKADAVU,VILAVOORKKAL DESOM,VILAVOORKKAL VILLAGE. ADV. SRI.B.JAYASURYA FOR R3 TO R4 PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. **Crl. R.P. No. 719 of 2002** .................................................. Dated: 29-11-2012 ## ORDER This Revision Petition is filed by the de facto complainant/injured in C.C. No. 237/1994. The three accused persons therein faced trial for offences punishable under Sec. 323 and 326 read with 34 I.P.C. 2. According to the prosecution, the incident took place on 28-8-1993 at 9.30 p.m. on the road infront of the house of P.W.1. P.W.1 was then studying in University College. When he was returning to his house at about 9.30 p.m. he saw the accused persons in a drunken stage creating a boisterous scene **.** He questioned the same. Then A1 hit him on his face with MO1 stone, as a result of which one tooth was broken; two teeth on the upper and ## **Crl. R.P. No. 719 of 2002** -:2:- lower jaw became loose. P.W. 6 the father of P.W.1 reached the scene. When he tried to intervene, he was pushed down by the 2nd accused. It was stated that A2 and A3 had beaten and fisted P.W.1 on his chest and back. On hearing the hue and cry, when others reached the scene, the accused left the place. P.W.1 was taken to the Medical College Hospital, Thiruvananthapuram. He was examined by the doctor. On receipt of intimation, P.W.8 the police officer reached the hospital and recorded the first information statement (Ext.P1) based on which the F.I.R. ( Ext.P4) was registered. The officer who recorded the F.I. Statement of P.W.1 had also made a body note which was marked as Ext.P1(a) which shows that the injury found on the body of P.W.1 was seen dressed up. After conducting investigation the charge sheet was laid. 3. Since the doctor opined that there was fracture to the tooth and two teeth were had to be extracted subsequently, and also because there was disfigurement on the face of P.W.1, the charge was laid under Sec. 326 **Crl. R.P. No. 719 of 2002** -:3:- I.P.C. as well. P.W.1 to P.W.9 were examined and Exts. P1 to 5 were marked. MO1 the stone and MO2 the tooth stated to have fallen down from the mouth of P.W.1 were identified. 4. P.W.1 deposed in tune with the case of the prosecution. P.W.6 his father also supported the prosecution version. The evidence given by the doctor (P.W.4) also supported the evidence given by P.W.1. Independent witnesses did not support the prosecution. The court below acquitted the accused. 5. The learned counsel for the revision petitioner submits that it is a case where the learned Magistrate has made a perverse approach and has thrown the case of the prosecution overboard stating that MO2 tooth which was seized by the police officer from the scene of occurrence was not proved to be the tooth of P.W.1 himself. The suggestion put to the doctor and to P.W.1 was that it was the tooth of a dog. The learned counsel for the revision petitioner submits that perversity is writ large on the face **Crl. R.P. No. 719 of 2002** -:4:- of the judgment rendered by the learned Magistrate. It is also pointed out by the learned counsel that there is not even a single sentence in the judgment which conveys the intented meaning. It is a bundle of mistakes, the learned counsel further submits. 6. P.W.1 has given evidence that the accused persons were known to him earlier. It was also stated that he could identify the accused as there was electric light emanating from the light fitted to the electric post situated very near to the place of incident. The fact that there is an electric post about 8 metres away from the place of occurrence is noted in the scene mahazar and that was referred to by the learned Magistrate also. There was no reason for P.W.1 and P.W.2 to foist a false case against the accused, it is submitted by the learned counsel. 7. The case of the prosecution is that the accused was seen consuming alcohol and making nuisance and since P.W.1 the student wanted to study for his examination, he told the accused not to create noise and trouble. ## **Crl. R.P. No. 719 of 2002** -:5:- Infuriated by the same he was attacked by the accused. The fact that P.W.1 sustained injury resulting in the loosening of four teeth and also loss of one tooth gets corroboration from the evidence given by P.W.4 the doctor who proved the wound certificate. That is further corroborated by the body note prepared by the police officer who recorded Ext.P1 the F.I. statement. 8. A strange contention was advanced by the accused when P.W.1 and P.W.4 were examined with regard to the loss of tooth. According to P.W.1, because of the impact of the hit, one tooth got loosened and one tooth was lost. Along with blood he spit the tooth fell down at the scene of occurrence. That tooth happened to be seen at the scene of occurrence and was seized by the police officer as per the scene mahazar. The contention that was advanced by the accused is that since there is no evidence to show that MO2 tooth was exactly the tooth of P.W.1, the whole case stated by the prosecution is to be disbelieved . Strange are the contentions advanced by the accused. Equally **Crl. R.P. No. 719 of 2002** -:6:- unfortunate is the approach made by the learned Magistrate in accepting that contention, the counsel for the petitioner submits. It is not a case where the entire prosecution case is sought to be established on circumstantial evidence. The injured P.W.1 himself has given evidence as to how he sustained injury. That was corroborated by P.W.6 and also by the medical evidence as referred to earlier. Therefore, there was no necessity of producing the tooth to prove the prosecution case. Even if the tooth could not be seen at the scene of occurrence or seized by the police that cannot in any way affect the case of the prosecution. But strangely enough, the learned Magistrate found that the failure to prove MO1 as the tooth of P.W.1 as a ground to hold the case against the prosecution, the learned counsel submits. The fact that the accused persons were known to P.W.1 was not in serious dispute. In fact, a contention was raised by the accused to the effect that P.W.1 and his father had attacked the accused persons. But that contention remained in the **Crl. R.P. No. 719 of 2002** -:7:- realm of suggestion alone. There was no case that the accused, all or any of them, had gone to the hospital or had undergone treatment. No complaint was also given by them. According to the learned counsel for the petitioner that suggestion itself will make it clear that there was enmity between accused persons on the one hand and P.W.1 on the other. Since the accused persons belonged to that locality and since P.W.1 and his father deposed before Court that there was electric light and it was in that light the accused could be identified, the learned Magistrate should have accepted that evidence, it is argued. 9. The only other ground that was projected by the learned Magistrate is that the wound certificate was issued on 30-08-1993 where as the incident took place on 28-81993. The police officer went to the hospital on 29-081993 itself. The learned Magistrate also has stated that the F.I. statement was recorded by the Police at 10.30 a.m. on 29-08-1993, based on which Ext.P1 F.I.R was registered subsequently. Since P.W.1 was admitted in the **Crl. R.P. No. 719 of 2002** -:8:- hospital on the same day night, the delay in the police officer reaching the police station and recording the statement or the delay in the registration of the F.I.R. cannot be a reason to hold that the evidence given by P.W.1 is unbelievable since it was the duty of the police officer to rush to the hospital and to record the statement. That will not in any way affect the credibility of P.W.1. If there was any doubt as to the exact date and time of admission of the patient in the hospital certainly the admission register could have been summoned to clear the doubt, if any. There was no point in making assumptions and suppositions to throw out a case which appeared to be genuine, the learned counsel for the petitioner submits. The approach made by the learned Magistrate is seen to be unjustifiable. 10. It is true that in a revision petition, at the instance of victim/de facto complainant, the scope of interference is very limited. But if it is a case where great injustice is seen to have been done, certainly the court has **Crl. R.P. No. 719 of 2002** -:9:- to see that injustice is undone. The object is to render justice. Fair trial means not only fair trial to the accused but also to the complainant. Since it is a police charged case, the complainant had no control or dominion over the conduct of the prosecution. The faulty investigation or faulty trial before Court cannot be a reason to throw overboard the case of the complainant. The counsel for the petitioner has also relied upon the decision of the Supreme Court in **Zahira Habibbulla Sheik v. State of Gujrat -** **(2006) 3 SCC 374,** where it was held : " _There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz., whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society._ ## _It was also held:_ _"Since the object is to mete out justice and to convict the guilty and project the innocent, the trial should be a search_ **Crl. R.P. No. 719 of 2002** -:10:- _for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty . The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny"._ ## _It was further held:_ _"If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice"_ 11. In the light of what is stated above, I find that there was failure of justice in this case. When glaring injustice is being done, the Court must certainly exercise the power under Sec. 397 read with Sec. 401 Cr.P.C. to upset a verdict of acquittal. Hence, the revision petition is allowed . The judgment of acquittal is set aside. The learned Magistrate will dispose of the case afresh. If the learned Magistrate finds it necessary to summon the original admission register maintained in the hospital to verify the correct date and time of admission of the patient, that can also be done. The accused can also adduce **Crl. R.P. No. 719 of 2002** -:11:- evidence on their side. The learned Magistrate will dispose of the case at the earliest taking note of the fact that it is a very old case. The learned Magistrate will take up the case on 18-12-2012 and proceed in accordance with law. Dated this the 29th day of November, 2012. ## **Sd/- N.K.BALAKRISHNAN, JUDGE.** ani/ /true copy/ P.S. to Judge **Crl. R.P. No. 719 of 2002** -:12:- N.K. Balakrishnan, J. ................................................. **Crl. R.P. No. 719 of 2001** .................................................. Dated: 29-11-2012 ORDER