SHAJI, RATHEESH AND HARIHARAN v STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 CRL.REV.PET NO. 210 OF 2011 ``` ``` AGAINST THE JUDGMENT CC 461/2006 OF JUDICIAL MAGISTRATE OF FIRST ``` ``` CLASS -I , PATHANAMTHITTA ``` ``` CRA 4/2009 OF THE SESSIONS COURT,PATHANAMTHITTA ``` ## **`REVISION PETITIONER/APPELLANTS/ACCUSED:`** ``` 1SHAJI,AGED 30 YEARS S/O.MUTHU, THUNDIYATHU HOUSE, THALACHIRA,, VADASSERIKARA, PATHANAMTHITTA DISTRICT. 2RATHEESH, AGED 28 YEARS S/O.JOHN, KULATHINKAL HOUSE,, THEEKUMALA, KUMARAMPEROOR, THEKKEKARA MURI,, VADASSERIKARA, PATHANAMTHITTA DISTRICT. 3HARIHARAN AGED 39 YEARS S/O.JANAKI, THEKKUMALAKIZHAKKU, THALACHIRA,, VADASSERIKARA, PATHANAMTHITTA DISTRICT. BY ADV SRI.V.PHILIP MATHEW ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT AND STATE:`** ``` STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` SMT. PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`Crl.R.P NO.210 OF 2011 2`** ## **Dated this the 6[th] day of December, 2023** ## **ORDER** The revision petition is filed calling in question the legality, correctness and propriety of the judgment in Crl.Appeal No.4/2009 of the Court of Sessions, Pathanamthitta (Appellate Court), confirming the judgment in C.C. No.461/2006 of the Court of the Judicial First Class Magistrate I, Pathanamthitta (Trial Court), holding the revision petitioners guilty and convicting and sentencing them for the offences under Sections 323 and 324 of the Indian Penal Code (in short, ‘IPC’). The revision petitioners were the accused 1 to 3 in the above case and the respondent was the complainant -State. 2. P rosecution case in brief: The prosecution case is that, on 7.1.2002, at about 7 p.m., the accused in furtherance of their common intention assaulted the de facto complainant (PW1) in front of his house near Puthukkulam junction. The first ## **`Crl.R.P NO.210 OF 2011 3`** accused inflicted a cut injury with a chopper on the left hand and left side of the chest of PW1, and the second accused fisted PW1 and the third accused kicked PW1 in his navel and caused injury to PW1. Thus, the accused have committed the above offences. 3. The accused denied the substance of accusation read over to them. In the trial, the prosecution examined PWs 1 to 7 and marked Exts.P1 to P7(a) in evidence. The accused denied the incriminating materials appearing against them in the questioning under Section 313 of the Code of Criminal Procedure ( in short, Code) 4. The Trial Court, after appreciating the materials placed on record, by the impugned judgment, found the accused guilty and convicted them for the offences under Sections 323 and 324 of IPC. The accused were sentenced to undergo rigorous imprisonment for a period of three months each, for the offence under Section 323 of IPC and to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.2000/- each for the offence under Section 324 of IPC, and in default to ## **`Crl.R.P NO.210 OF 2011 4`** undergo simple imprisonment for a further period of one month. If the fine amount was recovered, the same to be paid to PW1 as compensation under Section 357(1) (b) of the Code. The substantive sentence were ordered to run concurrently. 5. Aggrieved by the said judgment, the accused filed Crl.Appeal No.4/2009 before the Appellate Court. 6. The Appellate Court, after re-appreciating the materials on record, by the impugned judgment, confirmed the conviction, but modified the sentence by reducing the substantive sentence of the first accused to undergo rigorous imprisonment for a period of four months for the offence under Section 323 of the IPC and the accused 2 and 3 to undergo simple imprisonment for a period of one month for the offence under Section 323 of the IPC. The first accused was directed to pay a compensation of Rs.5000/- to PW1 and the accused 2 and 3 were directed to pay a compensation of Rs.1000/- each to PW1, and in default the first accused was directed to undergo simple imprisonment for a further period of two ## **`Crl.R.P NO.210 OF 2011 5`** months and the accused 2 and 3 were directed to undergo simple imprisonment for a period of 15 days. 7. It is challenging the concurrent judgments; the revision petition is filed. 8. Heard; Sri.V.Philip Mathew, the learned counsel appearing for the revision petitioners and Smt.Pushpalatha, the Public Prosecutor appearing for the respondent- State. 9. The learned counsel appearing for the revision petitioners argued that the courts below have misread the materials placed on record. He contended that by no stretch of imagination could a cut injury be caused with a chopper because the same can only be inflicted with a sharp knife. Moreover, the weapon was not recovered and hence the prosecution has to fail in the light of the law laid down by the Honourable Supreme Court in **Amar Singh v. State** [(2020) 19 SCC 165]. He also contended that PW4 had in his oral testimony deposed that the injured/PW1 was present at the time of preparation of Ext.P2 mahazar, but actually as per the oral testimony of ## **`Crl.R.P NO.210 OF 2011 6`** PW7 read with Ext.P7 wound certificate, PW1 was in the hospital. The above two circumstances are sufficient to prove that the courts below have misread the records and have convicted the accused, without any foundation or basis. Hence, the revision petition may be allowed and the impugned judgments may be set aside. 10. The learned Public Prosecutor, on the contrary, defended the judgments. She submitted that the evidence of PWs 1 to 3/sterling witnesses/ have in unequivocal terms testified that the accused had inflicted injuries on PW1, which stands corroborated with the testimonies of PWs 5 to 7 read with Exts.P1 to P7. She argued that even if there are some minor discrepancies in the oral testimonies of the witnesses, the same is not fatal to the prosecution. Likewise, it is well settled in law that there is no necessity to recover the weapon. She also submitted that this Court may not interfere with the finding of facts of the courts below in a revision petition filed under Section 397 read with Section 401 of the Code. The revision petition is meritless and is only liable ## **`Crl.R.P NO.210 OF 2011 7`** to be dismissed. 11. Is there any illegality, impropriety or irregularity in the impugned judgments ? 12. The prosecution case is that, on 7.1.2002 at about 7 p.m. while PW1 was in his residence, the accused 1 to 3 were found shouting obscene words and walking along the road. When they reached in front of the residence of PW1, he went out and asked the accused about their behaviour. Immediately, the accused asked PW1 what he would do if they did not leave. Out of a rage, the first accused took a chopper hidden in his garment and inflicted a cut injury on the chest and left hand of PW1. Similarly, the second accused fisted PW1 and the third accused kicked PW1 on his navel. 13. To prove the prosecution case, the de facto complainant himself was examined as PW1 and two independent eye witnesses were examined as PWs 2 and 3. All three of them have clearly deposed in line with the prosecution case. The prosecution also examined PW4, the person who proved Ext.P2 mahazar, PW5 - the Sub ## **`Crl.R.P NO.210 OF 2011 8`** Inspector of Police who conducted the investigation, PW6the doctor, who proved Ext.P7 wound certificate and PW7- the police who recorded Ext.P1 FI statement. 14. On a perusal of Ext.P7 wound certificate it would clearly establish that PW1 had sustained an incised wound of 6 cm on the left side of his chest and a lacerated wound of 3x4 cm long muscle deep on his left hand. The above injuries reveal that there was an incident and PW1 had sustained injuries as stated in the prosecution case. 15. The submission of the learned counsel for the revision petitioners that the injuries mentioned in Ext.P7 wound certificate cannot be caused with a chopper and that there was a discrepancy in the oral testimony of PW4 who stated that PW1 was at the scene of occurrence while Ext.P2 scene mahazar was prepared, but actually he was in hospital, are all facts that have already been considered by the courts below. Even otherwise, the said matters are not matters falling for consideration in a revision petition. ## **`Crl.R.P NO.210 OF 2011 9`** 16. There is a profusion of precedential authority that the revisional power of this Court is to be sparingly exercised and only in cases of exceptional rarity, when there is total miscarriage of justice and misreading of records. The power is more in the nature of a supervisory jurisdiction, to correct patent errors and manifest illegality. The revisional power of this Court cannot be equated to appellate powers. Merely because a different view is possible, the revisional Court shall not substitute the views taken by the Trial and Appellate Court/Fact Finding Forums, unless and until this Court is convinced that there is total misreading of records and the view taken by the courts below is shocking to the conscience of this Court. 17 **.** In **Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and purport of powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: ## **`Crl.R.P NO.210 OF 2011 10`** “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. “ 18. On going through the evidence of PWs1 to 3, I am convinced that the prosecution has proved that the first accused had inflicted injury on PW1 and the accused ## **`Crl.R.P NO.210 OF 2011 11`** 2 and 3 had fisted and kicked PW1. Their evidence stands corroborated with the testimonies of PWs 4 to 7 read with Exts.P1 to P7. The courts below have rightly appreciated the records. I do not find any error,illegality or impropriety in the concurrent findings of the courts below to take a different view. Thus, I confirm concurrent convictions rendered by the courts blow. 19. At the said point of time, the learned counsel for the revision petitioners prayed that a lenient view may be taken in the matter of sentence, especially since the incident occurred way back on 7.1.2002 i.e merely 22 years back. Therefore, the sentence may be modified and reduced to till the rising of the court. 20. On a consideration of the heinous acts of the accused, who inflicted injures on PW1, and also the fact that the Appellate Court had modified the sentence in the appeal, I do not find any valid ground to modify the sentence. It is well settled that no misplaced sympathy shall be shown in the matter of sentence. Therefore, I am not inclined to interfere with the sentence imposed by the ## **`Crl.R.P NO.210 OF 2011 12`** Appellate Court. In the result, - (i) The revision petition is dismissed. (ii) The conviction passed by the courts below is confirmed and the sentence passed by the Appellate Court is upheld. (iii) The revision petitioners are directed to appear before the Trial Court on 4.1.2024 to undergo the sentence and to pay the compensation amount as directed by the Appellate Court. (iv) Needless to mention, if the revision petitioners have already deposited any amount towards the fine, they need only to deposit the balance amount. (v) In case of the failure of the revision petitioners to appear before the Trial Court and pay the fine amount, the Trial Court shall execute the sentence and recover the fine amount from the revision petitioners. (vi) The execution of the sentence shall stand suspended till 3.1.2024. (vii) If the fine amount is realised, the same shall be ## **`Crl.R.P NO.210 OF 2011 13`** released to PW1 as compensation, in accordance with law. (viii) The Registry is directed to forthwith forward a copy of this order with the lower courts records to the Trial Court for compliance. **SD/-** **C.S.DIAS, JUDGE** rmm7/12//2023