SABU @ MURALI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 13TH DAY OF DECEMBER 2013/22ND AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 2408 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A 366/2011 of ADDL.SESSIONS COURT - IV, KOTTAYAM DATED 30-09-2013** **AGAINST THE JUDGMENT IN CC 771/2008 of J.M.F.C-I, KOTTAYAM DATED 27-08-2011** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **SABU @ MURALI AGED 46 YEARS, S/O. GOPALAN RESIDING AT ELLIMOOTIL HOUSE, THAKIDIYIL, MEENADAM, KOTTAYAM DISTRICT.** **BY ADVS.SRI.T.MADHU SRI.SAJI JACOB** ## **RESPONDENT/STATE/COMPLAINANT:** **----------------------------** **THE STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, PAMPADY POLICE STATION, KOTTAYAM DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 2408 of 2013 -----------------------------------------------------Dated this the 13[th] day of December, 2013** **ORDER** The revision petitioner is the accused in C.C.No.771/2008 on the files of the Judicial First Class Magistrate's Court-I, Kottayam. He was prosecuted for the offences punishable under Sections 447 and 324 of the Indian Penal Code. After trial, the learned Magistrate found the revision petitioner guilty of the offence and convicted thereunder. He was sentenced to undergo simple imprisonment for 3 months and to pay a fine of `5,000/under Section 324 of the IPC. Further, he was sentenced to pay a fine of `500/- under Section 447 of the IPC. In default of payment of fine, he shall undergo simple imprisonment **Crl.R.P. No. 2408 of 2013** -: 2 :- for a further period of one month. Though he had preferred Crl. Appeal No.366/11 before the Addl. Sessions Court-IV, Kottayam, the learned Sessions Judge also, after reappreciating the evidence on record, confirmed the verdict of guilty, conviction and sentence as such, without any interference. This Revision Petition is filed challenging the concurrent findings of conviction and sentence on various grounds. 2. The prosecution case, in brief, is that out of the previous enmity towards P.W.1, the accused trespassed into the courtyard of the house of P.W.1 and inflicted a cut injury on his right arm with a sharp iron rod and thereby voluntarily caused hurt. Hence, according to the prosecution, he has committed the offences alleged against him. To prove the prosecution case, P.Ws. 1 to 8 were examined and Exts.P1 to P6 were marked. No evidence was adduced in defence. The accused pleaded not guilty and denied the allegations against him in his statement under Section 313 of the Cr.P.C. 3. The learned counsel for the revision petitioner contends that the name of the accused was not stated in the **Crl.R.P. No. 2408 of 2013** -: 3 :- wound certificate prepared immediately after the occurrence, though the accused is a neighbour of P.W.1. Secondly, the identification of the accused was not proved beyond doubt. The third point is that the evidence of P.W.1 is not supported by the evidence of independent witness except the evidence of P.W.4. 4. Going by the evidence on record, it is seen that P.Ws.1 to 4 were examined to prove the occurrence. But P.Ws.2 and 3 turned hostile. P.W.1 is the injured as well as the de facto complainant, who has given Ext.P1 First Information Statement. P.W.4 is an independent witness. After evaluating the evidence of P.W.1, the court below concurrently found that the evidence of P.W.1 is in terms with Ext.P1 First Information Statement. Though, he was subjected to cross-examination at length and into minute details, nothing brought out to render his evidence incredible and untrustworthy. The evidence of P.W.1 gets assurance from the evidence of P.W.4, who is the immediate neighbour reached the place of occurrence immediately on hearing the hue and cry of P.W.1. Going by the evidence of P.W.4, it is **Crl.R.P. No. 2408 of 2013** -: 4 :- seen that she found P.W.1 standing in the place of occurrence oozing blood from his body. The accused was also present and he ran away from the place at once on seeing her. When she was examined, she identified the accused as the person who ran away from the place of occurrence when she reached there on hearing the hue and cry of P.W.1. The accused is having no case that P.W.4 is having any ill-will or malice towards him so as to perjure. As rightly found by the trial court, it cannot be held that the witnesses will collude with each other to falsely implicate an innocent person in a serious case like this. In the absence of any material, it would stand contrary to the said finding. Regarding the identification of the accused, admittedly, P.W.1 and the accused are neighbours. When P.W.1 was asked regarding the occurrence, he deposed that he could identify the accused; but he could not understand the nature of the weapon he used. Therefore, I find that the evidence of P.Ws.1 and 4 corroborates each other and thereby conviction can be based on their evidence. So also, the identity of the accused also stands proved by their evidence. **Crl.R.P. No. 2408 of 2013** -: 5 :- 5. In Sukhchain Singh v. State of Hariyana and Others [2002 (5) SCC 100], the Apex Court held that the absence of name in the wound certificate cannot be taken to presume that injured has not stated the name of the accused to the doctor. Similarly, recording the name of the assailants or holding an enquiry is neither the duty of the doctor nor a usually expected conduct from the doctor at the time of examining an injured brought to casualty ward of the hospital. So, in the light of the above decision, challenge on the basis of the absence of name in the wound certificate is unsustainable. The learned counsel for the revision petitioner further pointed out that there is a delay of 4 days in giving the First Information Statement. But, it could be seen that the delay was properly and sufficiently explained by the prosecution before the trial court. Going by Ext.P1 First Information Statement, it can be seen that the delay has been properly explained by P.W.1. It is stated in Ext.P1 that P.W.1 thought that the police might have been informed from the hospital. In Ext.P3 wound certificate, under Col.No.13, it has to be specified whether police/Magistrate **Crl.R.P. No. 2408 of 2013** -: 6 :- was informed? That column is left blank, which shows that the police was not intimated from the hospital. So, that might be the reason for the delay in approaching the police and giving Ext.P1 First Information Statement. I also find that the explanation given by the prosecution for the delay of 4 days in lodging the F.I.R. is explained satisfactorily. There is no illegality or impropriety in the impugned judgment under challenge. I do not find any perversity in the appreciation of evidence from which those findings have been arrived at. Re-appreciation of evidence is impermissible under the revisional jurisdiction, unless it is shown that the inferior court could not have arrived at such findings on the basis of the materials on record or the findings are so perverse or unacceptable. Consequently, the conviction is confirmed. 6. The learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is disproportionate with the nature and gravity of the offence and it is too harsh and excessive. The revision petitioner is the only bread winner of his family and if he is incarcerated **Crl.R.P. No. 2408 of 2013** -: 7 :- for a long period, the entire family will be put in great hardship and difficulty. It has come out in evidence that both the revision petitioner and the injured are the neighbours. But at the same time, it cannot be held that the incident was so happened on a sudden passion. The prosecution case is that in the mid night he trespassed into the courtyard of the house of the injured with an iron stick. Therefore, the alleged incident was a pre-meditated attack. In such case, prison term is inevitable to secure the interest of deterrency. But at the same time, the length of the prison term alone cannot be taken as a factor to reform the accused. In that view, I find that the sentence imposed on the revision petitioner is a little harsh and consequently, I am inclined to reduce the length of the prison term. 7. In supersession of the sentence imposed by the trial court and confirmed by the appellate court, the revision petitioner/accused will stand sentenced to undergo simple imprisonment for one month and to pay a fine of `5,000/(Rupees five thousand only) under Sec.324 of the IPC. In default of payment of fine, he shall undergo simple **Crl.R.P. No. 2408 of 2013** -: 8 :- imprisonment for a further period of 10 days (Ten days). The revision petitioner is further sentenced to pay a fine of `500/under Sec.447 of the IPC. In default of payment of fine, he shall undergo simple imprisonment for 7 days (Seven days). The fine amount, if paid or realised, shall be given to P.W.1 as compensation under Sec.357(1)(b) of the Cr.P.C. This revision petition is allowed in part. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/**