SANTHAKUMAR, INDULAL, SANTHOSH v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934** **Crl.Rev.Pet.No. 2443 of 2011 (A)** **--------------------------------------------[CRL.A.NO.513/2009 OF ADDITIONAL SESSIONS COURT,ALAPPUZHA, CC.NO.1319/2004 OF JUDICIAL FIRST CLASS MAGISTRATE - I, ALAPPUZHA]** **..................** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** **------------------------------------------------------------------------** **1. SANTHAKUMAR, AGED 38 YRS., S/O. ASOKAN, KANIYAM VEETTIL, WARD NO. XVII, THANNERMUKKOM PANCHAYATH, CHERTHALA, ALAPPUZHA.** **2. INDULAL, AGED 34 YRS., S/O. ASOKAN, DO. DO.** **3. SANTHOSH, AGED 35 YRS., S/O. RAJAMMA, KOOTTUMMAEL PALLI COLONY, WARD NO.XVII, THANNEERMUKKOM PANCHAYATH, CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADV. SRI.B.RAJEEV KOYICKAL.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **----------------------------------------------------------------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## ***ADDITIONAL R.2. IMPLEADED:** - ***2. VILASINI, AGED 46 YRS., W/O. PARAMESWARAN, MATTATHIL HOUSE, WARD NO.17, MARUTHORVATTAM.P.O., THANNEERMUKKOM PANCHAYAT, CHERTHALA, ALAPPUZHA.** ***IMPLEADED AS ADDITIONAL 2ND RESPONDENT IN CRL.R.P. AS PER ORDER DTD. 21/10/11 IN CRL.M.A. 9245/11.** ## **R1 BY PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.2443 of 2011** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of September, 2012** ## **O R D E R** The accused in C.C. No.1319/2004 before the Judicial First Class Magistrate's Court-I Alappuzha, three in number, are the petitioners in this Criminal Revision Petition. The prosecution was one under Sections 452 & 324 of IPC. The prosecution case was that on 27.04.2003 at about 8.30 p.m., the accused on account of their previous enmity to the elder son of the defacto complainant and in furtherance of their common intention of causing hurt, entered house No.17/49 of Thanneermukkom Panchayat belonging to the defacto complainant and accused No.1 inflicted a cut over the back side of PW3 by a sword and wounded him. Thereafter, the accused trespassed into the eastern hall room of the house and they inflicted injuries on the neck, chest and forehead of witness No.2 by cutting with a sword and thus accused committed offences punishable under u/s. 452 and 324 r/w. 34 IPC. After trial, Crl. Rev. Petition No.2443 of 2011 **-2-** the Magistrate convicted the accused and sentenced them to undergo rigorous imprisonment for two years each for the offence u/s. 452 IPC and to pay a fine of Rs.2,000/- each for the offence u/s. 452 IPC, with a default sentence of simple imprisonment for a period of two months each. The accused were sentenced to rigorous imprisonment for one year each for the offence u/s. 324 IPC. The sentences were directed to run concurrently. The petitioners filed Crl. Appeal No.513/2009, in which the Additional Sessions Judge, Alappuzha, confirmed the conviction and sentence. The petitioners are challenging the judgments of the courts below. 2. The petitioners raise three contentions. The first is that, although, PW1, in her evidence, stated that after the incident, hearing cries of PW1, neighbours gathered at the house of PW1, no independent witnesses from among them have been examined by the prosecution other than interested witnesses. The 2[nd] contention is that, no weapons have been seized in this case. It is contended that Crl. Rev. Petition No.2443 of 2011 **-3-** the wounds mentioned in the wound certificate are not big enough to be caused by a sword and therefore the prosecution evidence as regards the wounds having been caused by sword have not been sufficiently proved. The counsel submits that, PW5-the Doctor who proved the wound certificate, also did not categorically state that those wounds could have been caused by a sword. Therefore, evidence is very much lacking in this case regarding the wounds having been caused by the weapons as alleged by the prosecution. Thirdly, the petitioners would contend that there is serious discrepancies in the evidence of PW6. Counsel would claim that the incident occurred at 9.30 p.m. whereas the prosecution case is that the occurrence is at 8.30 p.m. The petitioners therefore contend that there is no reliable evidence in this case to prove the guilt of the accused and therefore the prosecution has palpably failed to prove the guilt of the petitioners beyond a reasonable doubt. Crl. Rev. Petition No.2443 of 2011 **-4-** 3. In answer, the learned Public Prosecutor would contend that the evidence adduced by the prosecution, except for some minor discrepancies, are strong enough to enter a finding of guilt beyond a reasonable doubt on the petitioners. He submits that there is no inviolable rule anywhere that no successful prosecution can be launched on the basis of evidence of the injured witnesses alone even if they are interested witnesses. It is submitted that insofar as the prosecution does not state that any independent witness was present at the time of occurrence, the nonexamination of any person, who had subsequently gathered at the scene of occurrence, even if true, cannot be a reason to disbelieve the strong prosecution evidence, which has been adduced in this case. It is submitted by the learned Public Prosecutor that the absence of seizure of the offending weapons cannot be a reason by itself to acquit the accused. Even when the weapons are not recovered if there is sufficient evidence to prove the guilt of the accused the non-recovery of the weapons is no ground to disbelieve the Crl. Rev. Petition No.2443 of 2011 **-5-** evidence of other witnesses, which would categorically prove the guilt of the accused. As far as the alleged discrepancies in the evidence of PW6 are concerned, it is submitted that insofar as the other witnesses have categorically stated that the incident occurred at 8.30, simply because PW6 stated that it was at 9.30, it is no ground to hold that the prosecution has not proved the case beyond a reasonable doubt, is the contention raised. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the learned Public Prosecutor, there is no law that there cannot be any successful prosecution on the basis of the evidence of the injured alone, if the evidence adduced by the injured are convincing enough for a conviction. Here, the evidence of the prosecution witnesses barring minor discrepancies holds good, for the purpose of proving the guilt of the accused beyond a reasonable doubt. Despite lengthy crossexamination, the defence could not pick any serious holes in the evidence of the prosecution witnesses. I am satisfied Crl. Rev. Petition No.2443 of 2011 **-6-** that the non-examination of an independent witness would in anyway discredit the convincing evidence adduced by the prosecution. 6. Of course, the learned counsel for the petitioners rely on the decision of the Hon'ble Supreme Court in **Chander Pal v. State of Haryana [(2002) 2 SCC 755]** , which according to the counsel for the petitioners would go to show that the non-examination of material witnesses and non-corroboration of testimony of interested witnesses by any independent witness would be fatal to the prosecution. I have gone through that decision. In that decision, there was no strong evidence of the interested witnesses. In fact the judgment itself shows that the person who had picked up and brought the deceased to the hospital had given a different version about the place of occurrence to the doctor in the hospital, who was neither examined by the prosecution nor was his presence at the place of incident or in the hospital mentioned by any of the prosecution witnesses. The prosecution did not give any explanation in Crl. Rev. Petition No.2443 of 2011 **-7-** that regard. Another person, who had accompanied the deceased to the hospital and had played a very important role as a panch witness, was also not examined by prosecution by merely stating that his examination was “unnecessary”. The deceased's brother, who was an eyewitness while giving evidence as PW1 contradicted the evidence of PW2, another interested person who claimed to have been an eyewitness. In that case, PW2 stated that he did not know the accused before the incident and therefore, in absence of his evidence regarding the identification of the accused as assailant, was not acceptable. PW2 in his evidence has stated that he saw the accused in police custody at the police station on a particular date, whereas the prosecution case was that the accused was arrested on a different date. No explanation or clarification was given by the prosecution in respect of that piece of evidence of PW2. It is under the above circumstances, the Hon'ble Supreme Court held that the non-corroboration of the testimony of the interested witnesses by an independent Crl. Rev. Petition No.2443 of 2011 **-8-** witness was fatal to the prosecution case in that case. No such contingencies arise here. The injured witnesses have given strong uniform evidence in respect of the incident that occurred and the guilt of the accused. The accused were close neighbours of the witnesses and they knew each other very well. That being so, the facts of the case relied upon by the Hon'ble Supreme Court has no comparison whatsoever with the facts of this case. As such, the ratio of that decision has no application to the facts of this case. Here, the petitioners could not point out any serious infirmities in the evidence of the injured witnesses, without which, I am not satisfied that the non-examination of an independent witness would be fatal to the prosecution case, especially when there was no other independent witness was present at the scene of occurrence at the time of occurrence. In fact nobody has any case that an independent witness had also witnessed the incident. 7. The 2[nd] contention raised is that in the absence of non-recovery of the weapons allegedly used for inflicting Crl. Rev. Petition No.2443 of 2011 **-9-** the wounds the prosecution case cannot be believed. According to the counsel for the petitioners, the wounds mentioned in the wound certificate are not large enough to have been caused by sword and therefore it cannot be stated with any amount of certainty that the wounds were caused by swords, which is the prosecution case. I do not find any merit in this contention. PW5-the Doctor, who issued the wound certificate stated on oath that these injuries could have been caused by any sharp weapon. The accused did not challenge the evidence of the Doctor by asking him a question as to whether or not these wounds could have been caused by a sword. As such, reading the evidence of the injured witnesses together with that of the doctor, I do not find anything in favour of the accused to hold that the non-recovery of the weapons or the size of the wounds would in anyway come to the assistance of the accused for holding that the prosecution has not proved the guilt of the accused beyond a reasonable doubt. As regards the so-called discrepancies pointed out by the counsel for Crl. Rev. Petition No.2443 of 2011 **-10-** the petitioners in the evidence of PW6, I am not satisfied that those discrepancies are good enough to discredit the evidence as a whole brought in by the prosecution. I am of opinion that the petitioners have not been able to point out any serious discrepancies warranting a conclusion that the prosecution has not been able to prove the guilt of the accused. The only discrepancy pointed out is that, PW6 stated that the incident occurred at 9.30 p.m, whereas the prosecution case is that the incident occurred at 8.30 p.m. I do not think that the same is a serious discrepancy which would render the other prosecution evidence unacceptable. In view of the above discussion, I am more than satisfied that the prosecution has proved the guilt of the accused beyond any reasonable doubt. Therefore, I am not inclined to interfere with the conviction entered by the courts below. 8. The learned counsel for the petitioners makes a fervent plea for reducing the punishment. I am not satisfied that the petitioners deserve any mercy whatsoever. They had no compunction to attack a boy who was mentally Crl. Rev. Petition No.2443 of 2011 **-11-** challenged and he was seriously injured in the incident also. Such kind of persons do not deserve any sympathy whatsoever. Therefore, I am not inclined to interfere with the punishment as well. Accordingly, the Crl. R.P. is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/