Sunil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 6TH DAY OF JANUARY 2014/16TH POUSHA, 1935** **Crl.Rev.Pet.No. 30 of 2014** **--------------------------------------** **CRL.APPEAL NO. 176/2013 OF ADDITIONAL DISTRICT & SESSIONS JUDGE COURT - IV, PATHANAMTHITTA, DATED 18-10-2013.** **--------------------C.C.NO. 259/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-I, PATHANAMTHITTA, DATED 26-06-2013** **--------------** ## **PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------** **SUNIL, S/O.ANANDAN, PULIKATHARAYIL VEEDU, EDAPARIYARAM, ELANTHOOR, PATHANAMTHITTA.** **BY ADVS.SRI.M.T.SURESHKUMAR SRI.V.V.RAJA** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **-----------------------------------------------------------------** **STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031** ## **BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** ## **K. HARILAL, J. ---------------------Crl.R.P. No.30 of 2014 --------------------------Dated this the 6[th] day of January, 2014** ## **ORDER** The revision petitioner is the sole accused in C.C No. 259 of 2007 on the files of the Judicial First Class Magistrate's Court -I, Pathanamthitta. In the said Calendar Case, the revision petitioner along with four others were charged with the crime for having committed the offence punishable under Section 341, 323, 506(i) and 427 IPC. The prosecution case in brief is that on 29/10/2006 at about 2.30 p.m. while the de facto complainant and his wife were travelling along with Edaperiyaram-Mukkodu road, in an autorickshaw, the revision petitioner arrived there in a motor bike and he blocked the autorickshaw, wherein the de facto complainant was travelling. Thereafter PW1 was pulled out from the vehicle, by shouting that he will be killed and slapped on his cheek and had allegedly kicked on his legs. On seeing this wife of PW1, tried to dissuade the Crl.R.P. No.30 of 2014 2 appellant, but she was also manhandled by holding her hair and saree was torn in the incident. Immediately, certain passerby and a driver of another auto rickshaw, prevented the revision petitioner from assaulting PWs 1 and 2. Thus the revision petitioner is alleged to have committed offence punishable under Sections 341, 323, 506(i) and 427 IPC. 2. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a period of fifteen days for the offence under Section 341 IPC and simple imprisonment for a period of three months and to pay a fine of 1000/- for the₹ offence under Section 323 IPC and simple imprisonment for a period of four months each for the offence under Section 506(i) and 427 IPC. Out of the amount recovered, the entire amount shall be given to PW1 as compensation under Section 357(1)(b)Cr.p.C. The sentence shall run concurrently. In default of payment of fine he shall undergo simple imprisonment for a further period of two months. Feeling aggrieved though he had preferred Criminal Crl.R.P. No.30 of 2014 3 Appeal No. 176 of 2013 before the Additional District And Sessions Court-IV, Pathanamthitta, after re-appreciating the evidence, the learned Sessions Judge also confirmed the verdict of guilty and conviction thereunder but modified the sentence. In supersession of the sentence imposed by the trial court he was sentenced to undergo simple imprisonment for fifteen days and to pay a fine of 500/- in₹ default to undergo simple imprisonment for five days, under Section 341 of the IPC. He is again sentenced to undergo simple imprisonment for one month and to pay a fine of ₹ 1000/- , in default to undergo simple imprisonment for 10 days under Section 323 of the IPC. Again sentenced to undergo simple imprisonment for one month and to pay a fine of 5000/- in default to undergo simple imprisonment₹ for one month, under Section 506(i) of IPC. Again sentenced to undergo simple imprisonment for one month and to pay a fine of 5000/-. In default to undergo simple₹ imprisonment for one month under Section 427 of IPC. The substantive sentence shall run concurrently. The total fine amount 11,500/- if remitted, recovered or realised shall be₹ Crl.R.P. No.30 of 2014 **==> picture [7 x 9] intentionally omitted <==** paid to PW1 as compensation under Section 357(1)(b) of Cr.PC. This revision petition is filed assailing the concurrent findings of conviction and sentence on various grounds. 3. The learned counsel for the revision petitioner submits that the courts below went wrong in appreciating the facts and evidence in its correct perspective and conviction on the basis of such appreciation of evidence has resulted in gross miscarriage of justice. The main point argued by the learned counsel for the revision petitioner is that there was a delay of more than twenty four days and same stands unexplained satisfactorily. The explanation offered by the de facto complainant is that though he had approached the Aranmula police station, no crime was registered on his complaint. But the Investigating Officer had denied any such complaint filed by the PW1. The court below failed to consider this aspect. The next point is that the evidence of PW3, the driver of autorickshaw in which the de facto complainant was traveling at the time of occurrence, can not be taken to base conviction as his Crl.R.P. No.30 of 2014 5 evidence is that the incident was occurred on 29/06/2006. Similarly, the prosecution case is not supported by medical evidence. 4. Per contra, the learned Public Prosecutor advanced arguments to justify the impugned findings of conviction and sentence. According to the Public Prosecutor, the prosecution has succeeded in proving the case beyond the shadow of doubt. The short question that arises for consideration in this revision petition is whether the there is any illegality or impropriety in the findings of conviction and sentence. Put it differently, whether the prosecution has succeeded in proving the case beyond doubt. 5. Going by the impugned judgment, it is seen that to prove the prosecution case, PWs 1 to 4 were examined and Exts. P1 to P5 were marked. No evidence either oral or documentary had been adduced in defence. The de facto complainant was examined as PW1. He has given evidence in terms with averments in Ext.P1 complaint. He testified that he was mercilessly pulled out of the vehicle slapped thrice or more kicked with foot wear. PW2 who attempted Crl.R.P. No.30 of 2014 6 to rescue him was also attacked and humiliated by attempting to disrobe her. The accused shouted that he would do away with PWs 1 and 2. The evidence of PW1 is corroborated by the evidence of PW2 who was travelling along with PW1 at the time of occurrence. I do not find any kind of perversity in the appreciation of evidence of PW1 and PW2. Further, their evidence gets assurance from the evidence of PW3, the driver of the auto rickshaw wherein PWs.1 and 2 were travelling at the time of occurrence. 6. The learned counsel for the revision petitioner pointed out the discrepancy as to the date of occurrence. According to PWs.1 and 2, the date of occurrence was on 29/10/2006; but according to PW3, the date of occurrence was on 29/06/2006. Going by other evidence, it is seen that the entire prosecution documents show that the date of occurrence was on 29/10/2006, as deposed by PWs.1 and 2. Further, when the statement of the accused was taken under Sec.313, the accused has no case that the date of occurrence was a different date. That apart, an autorickshaw driver who had a chance to witness such an ## Crl.R.P. No.30 of 2014 7 incident is not expected to remember exact date of occurrence, after years. In view of the cumulative appreciation of evidence on record, I concur with the findings of the court below that even if PW3 had spoken to a different date in view of other evidence on record, it can be taken as a discrepancy trivial in nature and the same is not sufficient to shake the prosecution case. In **Sukh Chain Singh v. State of Haryana** [2002 (5) SCC 100], the Apex Court held that minor contradictions, embellishment or improvements in trivial matters, which do not affect core of the prosecution case cannot be made as a ground to reject entire prosecution case. 7. The learned counsel for the revision petitioner further pointed out that there is a delay of more than 24 days in filing the complaint and the delay was not explained satisfactorily. But, going by Ext.P1 complaint itself, it is the definite case of the de facto complainant that though the de facto complainant had filed a complaint before the Aranmula Police on 30/10/2006, the Police had not registered a crime on the basis of that complaint and in that Crl.R.P. No.30 of 2014 8 context, he was constrained to file a private complaint. Thus, the definite case is that no crime was registered on the complaint. In view of the said specific averments, I also concur with the findings of the court below that the delay occurred for preferring a private complaint is quiet natural and believable. It is also proved that the prosecution case is not supported by medical evidence. Considering the nature of injury, I am of the opinion that the absence of medical evidence is not fatal and the main grievance projected in the prosecution case is that Pws.1 and 2 were humiliated publicly on the road and thereby caused damages to them mentally more than physically. 8. On an overall appreciation of entire evidence on record, I find that there is no illegality or impropriety in the findings of conviction. So also, I do not find out any kind of perversity in the appreciation of evidence from which those findings have been arrived at. 9. Re-appreciation of evidence is impermissible under revisional jurisdiction unless it is shown that the inferior courts could not have arrived at such findings or formed Crl.R.P. No.30 of 2014 9 such opinions on the basis of the materials on record or the findings are so perverse or unacceptable. In the absence of any illegality or perversity, I am inclined to confirm the verdict of guilty and I do so. Consequently, conviction entered by the courts below is confirmed. 10. Coming to sentence, the learned counsel for the revision petitioner submits that the sentence imposed on the revision petitioner is excessive, harsh and disproportionate with nature and gravity of the offence. The de facto complainant is the father in law of the sister of the accused and the incident arose from the matrimonial dispute between the sister of the accused and her husband. 11. The learned counsel further urged for further reduction and modification of sentence. In view of the fact that, even if, the prosecution case is admitted it was so happened on a sudden passion on hearing the grievances of his sister. According to the learned counsel, the incident was not a pre-medicated or pre-planned one. The learned Public Prosecutor also admits that the dispute arose from the matrimonial issues and culminated in physical violence. Crl.R.P. No.30 of 2014 10 The learned Public Prosecutor further submits that a reasonable modification can be made in the sentence considering the possibility of resuming a good relationship between the parties. 12. Having regard to the entire facts and circumstances of the case, I am inclined to modify the substantive sentence by reducing the prison term and enhancing the compensation. 13. In supersession of the modified sentence imposed by the appellate court, the substantive sentence of imprisonment for each offences under Secs.341, 323, 506(i) and 427 of the Indian Penal Code will stand reduced and modified to simple imprisonment for one day till rising of the court and the fine amount for the offence under Secs.427 and 506(i) will stand enhanced to 10,000/- each₹ and the fine amount for the offence under Secs. 341 and 323 will stand as such without any interference. The entire fine amount, if paid or realised, shall be given to PW1 as compensation under Sec. 357(i)(b) of the Cr.P.C. In default of payment of fine, the default sentence imposed by the ## Crl.R.P. No.30 of 2014 **==> picture [13 x 9] intentionally omitted <==** appellate court for each offences will come into operation. The substantive sentence of imprisonment shall run concurrently. The revision petitioner shall appear before the trial court within a period of one month to suffer substantive sentence of simple imprisonment as ordered above with sufficient evidence to show the payment of fine amount. This revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** Mjl/stu //True copy// P.A to Judge