Santhosh and George @ Biju v State, represented by Public Prosecutor, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934** ## **Crl.Rev.Pet.No. 177 of 2004 (B)** **------------------------------CRA.413/2002 OF THE COURT OF SESSIONS, KOTTAYAM SC.146/1998 of ASSISTANT SESSIONS COURT, KOTTAYAM** ## **REVISION PETITIONERS)/APPELLANTS/ACCUSED NOS.1 AND 2:** **-----------------------------------** **1. SANTHOSH, S/O. GOPI,** - **EDAPPALLY COLONY, MADAPPALLY KARA, MADAPPALLY VILLAGE** **2. GEORGE @ BIJU, S/O. THOMAS PALLICKAL HOUSE, EDAPPALLY COLONY MADAPPALLY VILLAGE.** **BY ADVS.SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **---------------------------** **STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR, SMT.S.HYMA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S.GOPINATHAN, J. -----------------------------Crl.R.P.No.177 OF 2004 -------------------------------Dated this the 6[th] day of July, 2012** ## **O R D E R ~~~~~~~** The revision petitioners are accused 1 and 2 in Sessions Case No.146/1998 on the file of the Assistant Sessions Judge, Kottayam. They along with two others were prosecuted by the Circle Inspector of Police, Changanacherry, alleging offences under Sections 324, 326 and 307 read with 34 IPC. After a full fledged trial, the learned Assistant Sessions Judge arrived at a conclusion that the prosecution had succeeded to establish offences under Sections 324 and 307 read with 34 IPC as against the petitioners and that no offence under Section 326 IPC was proved against the petitioners and no offence against other accused was established. Consequently, the revision petitioners were convicted for offences under Sections 324 and 307 read with 34 IPC and sentenced to rigorous imprisonment for one year and three years respectively for offences under Sections 324 and 307 read with 34 IPC and fine of Rs.5,000/- on each count. The other accused were acquitted. The revision petitioners were also acquitted for offence under Crl.R.P.No.177/2004 2 Section 326 IPC. Assailing the conviction and sentence, the petitioners preferred Crl.A. No.413/2002 before the Sessions Judge, Kottayam. The Sessions Judge by the impugned judgment dated 1.12.2003 dismissed the appeal after confirming the conviction and sentence. Assailing the legality, correctness and propriety of the judgment of the appellate court confirming the conviction and sentence, this Revision Petition is filed. 2. I have heard Sri.Sujesh, the learned counsel appearing fo the revision petitioner and Smt.S. Hyma, the learned Government pleader. Perused the judgments of the courts below. The learned counsel for the petitioner had also taken me through the relevant evidence, particularly the evidence of PWs 1, 2 and 5 and Exts.P1 to P5, P8, DW3 and Ext.D4. 3. The prosecution case is that at 9.30 p.m on 8.10.1995 the petitioners along with other two accused were armed with a sword and that while PWs 2 and 3 walking through the road in front of the house of the petitioners, the appellants and the other two in furtherance of their common intention to commit murder, Crl.R.P.No.177/2004 3 hacked PWs 2 and 3. PWs 2 and 3 cried aloud and hearing the cry, PWs 1 and 5 rushed to the scene in rescue of PWs 2 and 3. They were also assaulted by the petitioners and other accused. PWs 1 to 3 and 5 were immediately rushed to the District Hospital, Changanacherry, wherein PW4 was the Medical Officer. PW4, having noticed that the victims had sustained severe injuries, after providing first aid, asked to rush them to the Medical College Hospital, Kottayam, where the victims were admitted and treated. Intimation was conveyed to the Station House Officer, Changanacherry Police Station. PW15, a Head Constable attached to the Changanacherry Police Station, rushed to the hospital and recorded Ext.P1 First Information Statement given by PW1. Returning to the Police Station with Ext.P1, a case was registered by Ext.P11 First Information Report for offences under Sections 324 and 307 read with 34 IPC. The investigation was taken over by the Circle Inspector of Police, who was examined as PW16. He conducted major part of the investigation. PW16 was succeeded by PW9, who on completing the investigation laid the charge sheet alleging offences under Sections 324, 326 and 307 read with 34 IPC before the Judicial Magistrate of the 1[st] Class, Changanacherry. Crl.R.P.No.177/2004 4 4. The learned Magistrate took cognizance and proceeded as C.P.No.18/1997. On finding that the offence under Section 307 read with 34 IPC is triable by a court of session, the case was committed to the court of session, Kottayam, by order dated 29.10.1998. The learned Sessions Judge made over the case to the Assistant Sessions Judge. In response to the process issued by the Assistant Sessions Judge, all the accused entered appearance. After hearing either side, a charge for offences under Sections 324, 326 and 307 read with 34 IPC was framed. When read over and explained, the accused pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 16 were examined. Exts.P1 to P17 and MOs 1 to 3 were marked. During the course of the cross examination of PWs 2, 6 and 11, Exts.D1 to D3 were marked. After closing the evidence for the prosecution, the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They took a defence of total denial. The 1[st] petitioner further took a defence that PWs 1 to 3 trespassed into his house and his father, who was examined as DW2, was assaulted and the case on hand was falsely foisted. The 2[nd] petitioner took a defence that he was falsely implicated as he assisted the Crl.R.P.No.177/2004 5 1[st] petitioner in taking DW2 to the hospital. On the side of the defence, DWs 1 to 3 were examined. Ext.D4 was also marked. On appraisal of the evidence, the learned Assistant Sessions Judge arrived at a finding of guilt against the petitioners for offences under Sections 324 and 307 read with 34 IPC. Consequently, they were convicted and sentenced as stated above. 5. Going by the evidence of PWs 1 to 5, I find that the evidence of PWs 1 to 3 and 5 are believable that they had sustained injuries as alleged by the prosecution. Coupled by the evidence of PW4 and Exts.P2 to P5, I find that PW1 had sustained a cut injury on the left shoulder extending to the scalp. PW2 had sustained multiple injury on the right arm and face. PW3 had sustained deep penetrating injury on the middle of the abdomen left side. According to PW4, all the victims had sustained serious injury and the wounds could not be explored and therefore, the victims were referred to the Medical College Hospital, Kottayam after first aid. PW10 was alleged to have treated PWs 1 to 3 and 5. But the prosecution had not produced the case sheet and therefore, PW10 could not recollect and Crl.R.P.No.177/2004 6 support the prosecution. CW14 had issued the discharge certificates, which were marked as Exts.P14 to P16. But CW14 was reported abroad and could not be examined. PW10 could not identify the handwriting and signature of CW4. Therefore, contents of Ext.P14 to P16 couldn't be proved. In the above circumstance, the prosecution was handicapped in bringing the medical evidence regarding the treatment and the full nature of the injuries sustained to PWs 1 to 3 and 5. It is for that reason alone the petitioners were acquitted by the trial court for offence under Section 326 IPC. The very allegation of the prosecution is that the injury sustained to PW3 was so deep and severe that the diaphragm was exposed and PW2 had sustained fracture of two teeth. The specific case of the prosecution is that the 1[st] petitioner inflicted injuries on PWs 1 and 3 and the 2[nd] petitioner inflicted injuries on PWs 2 and 5 with the sword. The sword said to have been used by the 2[nd] petitioner could not be recovered during the investigation. MO1 was produced as if the sword used by the 1[st] petitioner. Evidence of PWs 1 to 3 and 5 would show that their evidence is consistent that they were hacked by the petitioners 1 and 2 with the sword. Referring to the nature of injury deposed by PW4 and noted in Exts.P2 to P5, the learned Crl.R.P.No.177/2004 7 counsel for the petitioners would vehemently argue that the ocular evidence is not in conformity with the medical evidence. Therefore, the incident by which PWs 1 to 3 and 5 sustained injury might have occurred otherwise and therefore, the petitioners are entitled to an order of acquittal. In support of this argument, the decisions reported in Thaman Kumar v. State of Union Territory of Chandigar [AIR 2003 SC 3975], Raj Pal and another v. State of Hariyana [2007 Crl.Law Journal 2926] and Amarsingh and another v. State of Punjab [AIR 1987 SC 826] were also relied upon. 6. In the light of the persuasive argument advanced by the learned counsel for the petitioners, I have carefully gone through Exts.P2 to P5 and the evidence of PW4. PW4 is consistent that the history of the injury was hacking with a sword and the injuries noted on PWs 1 to 3 and 5 could be caused as alleged. His evidence couldn't be controverted. There is no suggestion to PW4 that any of the injuries mentioned by PW4 and noted in Exts.P2 to P5 could not be caused with a sword. As argued by the learned counsel for the petitioners, opinion of PW4 referring to MO1 was only in respect of PW3. Regarding Crl.R.P.No.177/2004 8 the injuries sustained PWs 1, 2 and 5 no suggestion was made by the prosecution to PW4 that the injuries could be caused with MO1. But the very case of PW4 is that the injuries sustained to PWs 1, 2 and 5 could be caused with sword. It is pertinent to note that the very case of the prosecution is that both petitioners had used sword in inflicting the injuries. Therefore, there is no meaning in asking to PW4 that the injuries sustained to all the victims could be used with MO1. I find that as found by the courts below it could be safely come to a conclusion that the injuries noted in Exts.P2 to P5 could be caused with a sword. The omission to refer MO1 is therefore not significant. In the above circumstance, the ratio of the decision referred by the learned counsel for the petitioners has no application to the case on hand. 7. The other argument that was advanced by the learned counsel for the petitioners is that PW4 had not specified in Exts.P2 to P5 or in the evidence as to exactly how many injuries were sustained by the victims. It is true that there is such omission. The very explanation of PW4 is that his first attempt was to save the victims and finding that the injuries were severe, Crl.R.P.No.177/2004 9 without exploring the injuries, the victims were referred to the Medical College Hospital, Kottayam. Therefore, PW4 cannot be found fault with for not specifying each and every injury in the wound certificate. Exts.P2 to P5 would show that the victims were very badly injured. As I mentioned earlier, the case sheet from the Medical College Hospital was not produced. The discharge certificate also could not be properly proved for reasons beyond the control of he prosecution. Then the question is whether for that reason the prosecution is to be disbelieved or not. In the absence of detail medical evidence, I had made a critical scrutiny of the evidence of PWs 1 to 5 and Exts.P1 to P5. I could notice that there are certain minor omissions and embellishions in the evidence of PWs 1 to 3 and 5 regarding each and every action of the assault alleged. It is revealed in evidence that PW1 was then studying for Pre-Degree and all the victims are belonging to scheduled caste. The literacy stage of PWs 2, 3 and 5 is not disclosed. However, nothing on record would show that they are very literate to give shrewd evidence. They belong to the lowest strata. Therefore, their evidence has to be scrutinised in their social and educational background. There is no much good suggestions to PWs 1 to 3 and 5 for falsely Crl.R.P.No.177/2004 10 implicating the petitioners. I don't omit to note that the petitioners have got a case that the father of the 1[st] petitioner was assaulted by the victims after trespassing into the house. The evidence of DWs 1 to 3 and Ext.D1 were brought on record in support of that plea. Ext.D4 is the wound certificate relating to the father of the 1[st] petitioner. The trial court disbelieved the defence evidence in the light of the evidence of DW3 that a portion of Ext.D3 was manipulated. Sitting in revision, I find no good reason to interfere with that conclusion arrived by the courts below. Even going by Ext.D4, it can be seen that the defence has no case that the victims were anyway armed with any weapon. Though there is a case of criminal house trespass that is belied by the evidence of PWs 1 to 3 and 5 coupled with Ext.P8 scene mahazar. In the scene mahazar, it is specifically stated that the incident occurred at the public tar road in front of the house of the 1[st] petitioner. There is no case for the petitioners that DW2 sustained injury at the public road where PWs 1 to 3 and 5 sustained injury. Therefore, prosecution has no burden to explain the injury if any DW2 had sustained. It is also pertinent to note that there is no counter case. In the above circumstance, it is rather difficult to accept the argument that Crl.R.P.No.177/2004 11 the victims were the assailants or that the injuries sustained are defence injuries while assaulting DW2. 8. The learned counsel for the petitioners advanced a vehement argument that the 2[nd] petitioner is no way connected with the offence and he was falsely implicated and in the light of the failure of the prosecution to seize the weapon said to have been used by the 2[nd] petitioner, he is entitled to an order of acquittal. Carefully going through the evidence of PWs 1 to 3 and 5 and the judgment of the courts below, I find that the evidence of the victims were meticulously considered by the trial court and arrived at a conclusion that the 2[nd] petitioner had common intention in inflicting injuries on PWs 1 to 3 and 5. The serious nature of the injuries sustained and the deadly nature of weapon speak volumes about the intention of the petitioners. It cannot be said that the intention was only to cause simple hurt. The attempt to commit murder in furtherance of the common intention is evident especially taking into account of the nature of the weapon used and the nature of the injury sustained by PWs 1 to 3 and 5. In the above circumstance, I find no illegality, impropriety or any error committed by the courts below in Crl.R.P.No.177/2004 12 coming to a conclusion of guilt. The conviction under challenge is not liable to be interfered. 9. Though the petitioners were then aged 20 and 26 years respectively and no bad antecedent was reported, having due regard to the nature of the weapon and the injuries sustained, it cannot be said that the courts below were anyway erred in finding that the petitioners are not entitled to any leniency. However, I find that this is a fit case in which the trial court should have ordered compensation, but it was not done for no good reason. In the above circumstance, I find that it would be appropriate to modify the sentence by including awarding of compensation to the victims and I find that the substantive sentence awarded to the petitioners for offence under Section 307 can be reduced to two years with direction to the petitioners to pay Rs.50,000/- as compensation to PW3 and Rs.10,000/- each to PWs 1, 2 and 5. 10. In the result, the appeal is allowed in part. While confirming the conviction on both counts and sentence for offence under Section 324 IPC, the sentence for offence under Crl.R.P.No.177/2004 13 Section 307 IPC is reduced to rigorous imprisonment for two years with direction to each petitioner to pay Rs.5,000/- (Rupees five thousand) each to PWs 1, 2 and 5 and Rs.25,000/- (Rupees twenty five thousand) to PW3. In default of payment of fine, the petitioners 1 and 2 shall undergo simple imprisonment for a further period of one year. The substantive sentence shall run concurrently. The under trial imprisonment, if any, shall be set off. The trial court shall see the execution of sentence and report compliance. ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/9/7**