Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942 AGAINST THE JUDGMENT IN CRL.APPEAL NO.242/2005 OF ADDITIONAL SESSIONS COURT (ADHOC), MANJERI DATED 31.01.2007 AGAINST THE JUDGMENT IN CC NO.809/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR DATED 31.05.2005 REVISION PETITIONER/APPELLANT/ACCUSED: SURENDRAN, S/O.APPUKUNHAN, MELEPURAKKAL HOUSE, AMBALAPARAMBIL,, THOZHUVANNUR AMSOM, KARTHALA DESOM. BY ADV. SRI.K.P.MUJEEB RESPONDENT/COMPLAINANT/STATE: STATE OF KERALA THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
Dated this the 5th day of January 2021
The revision petitioner is the accused in CC No.809 of 2001 on the file of the Judicial First Class Magistrate Court, Thirur and the appellant in Crl.Appeal No.242 of 2005 on the file of the Additional Sessions Court (Adhoc), Manjeri. The offence alleged against the accused is punishable under Sections 326 of the Indian Penal Code.
2. The prosecution case in brief is that on 01.03.1997 at
7.30 p.m., the accused voluntarily caused grievous hurt to PW1 by stabbing with a knife on his left cheek and right chest on the pathway situated infront of the house of the accused.
3. On the appearance of the accused, after hearing both
sides, the learned Magistrate framed charge against the accused for the offence punishable under Section 326 of the IPC. The charge was read over to which the accused pleaded not guilty.
4. When the case came up for evidence, PWs 1 to 8 were examined and marked Exts.P1 to P6 on the prosecution side. On
closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. DW1 was examined on his side and marked D1 to D3.
5. On appreciation of the evidence, the trial court
convicted and sentenced the accused to undergo rigorous imprisonment for two years and also to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for three months more for the offence punishable under Section 326 of the IPC. Challenging the aforesaid conviction and sentence the accused preferred appeal before the Sessions Court, Manjeri. By its
judgment dated 31.01.2007, the learned Additional Sessions
Judge (Adhoc), Manjeri dismissed the appeal confirming the conviction and sentence imposed by the trial court.
6. Heard Smt.V.A.Mini, the learned Amicus Curiae
appointed by this Court for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the State. 7 The learned counsel for the revision petitioner
submitted that the trial court mainly relied on the oral evidence of PW1 and Ext.P3 wound certificate issued by PW6 and entered a finding that the accused voluntarily caused hurt to PW1 as alleged by the prosecution. According to the learned Amicus Curiae, PW7, the Investigation Officer clearly stated that on 05.03.1997 he had conducted search at the residence of the accused and recovered one knife and stick as material objects in the case. Relying on Ext.P6 search list, the learned Amicus Curiae submitted that PW7 recovered a knife and a stick and produced before the court. However, the knife so produced was not shown to PW1 when he was examined before the court. Further, it was submitted that the knife and stick were not snown to PW3 when he was not examined before the court. Elaborating on the submission, the learned Amicus Curiae further submitted that eventhough production of material object is not essential in a hurt case, the legal position is different in a case wherein the material object is recovered and produced before the court and the prosecution has suppressed the material objects as evidence.
8. Per contra, the learned Public Prosecutor submitted
that the trial court and the appellate court meticulously analysed the evidence in detail relying on the evidence of PWs 1 and 3 and concurrently held that the accused committed the offence punishable under Section 326 of the IPC. According to the learned Public Prosecutor, unless the findings of the two courts below are patently perverse, this Court would not be justified in interfering with the concurrent findings of the facts so rendered by the two courts below.
9. PW1 testified that the first cousin of wife of PW1 is the
sister of the wife of the accused. The accused was totally against giving the said Komalam in wedlock. Hence, as desired by the mother of the said Komalam, PW1 had decided to interfere in the matter. According to PW1, he then asked the accused to send away Komalam in marriage with his help. However, the accused was totally reluctant and was unwilling to do the same. The allegation is that thereafter, the accused came to his house with a knife, stabbed on the abdomen twice, stabbed on PW1's chest and cheek. PW1 testified that he was in the hospital for a month.
10. PW2 is the wife of PW1 and PW3 is the son of PW1.
Although they were examined before court, they stated that they did not actually see the overtacts committed by the accused. However, they testified before that that they saw PW1 in a state of having sustained very serious injuries. They have also stated that they found the accused holding a knife on his hand.
11. PW3 examined PW1 on 01.03.1997 at 10 p.m. and
issued Ext.P3 wound certificate. The injuries caused to PW1 as per Ext.P3 is as follows: “(i) Penetrating injury left cheek, communicating with oral cavity 6x5 c.m dislocation of left upper molar along with sockets
(ii) Penetrating injury left lateral chest wall over the anterior axilary line 5x2 c.m., communicating with plural cavity
(iii) stab injury left paraumblicar region communicating with peritonial cavity
(iv) Penetrating injury right hypochondrial (right side of upper abdomen) muscle deep 10x5 c.m.”
12. The trial court mainly relied on the oral evidence of
PW1 and Ext.P3 and entered a finding that the accused voluntarily caused hurt to PW1 and the injuries sustained to him are within the domain of Section 320 of the IPC. Accordingly, the accused was convicted and sentenced for the offence under Section 323 of the IPC. In appeal, the appellate court concurred with the findings of the trial court and dismissed the appeal.
13. PW7 conducted investigation in this case and filed the
final report. It is clear from the evidence of PW7 that on 05.03.1997 he conducted search at the residence of the accused and recovered one knife and stick as material objects in the case. Thereafter, he filed Ext.P6 search list before the court. PW8 was examined to prove the search list. He is one of the signatories in Ext.P6 search list. It is clear that PW7 conducted search at the residence of the accused and recovered one knife and stick from the residence of the accused. It was done in the presence of PW8. When PW1 was examined, the knife and stick were not shown to him. In fact, the knife and stick were not exhibited as material objects during the trial of the case. No explanation was offered by the prosecution for not proving the material objects as evidence in this case. When the material objects were seized by the investigating officer pursuant to a search conducted by him and was produced before the court, the prosecution ought to
have taken steps to get it marked in evidence in accordance with law. The occurrence in this case took place on 01.03.1997. No purpose would be served if the case is remitted to the trial court after 24 years from the date of occurrence. On going through the evidence of PW1, it is disclosed that he had sustained serious injuries pursuant to the occurrence. However, the material objects involved in the case is important to prove the prosecution case. Unless and until the same is marked in evidence and confronted to the witnesses during examination, it is difficult to hold that the accused in fact voluntarily caused hurt to PW1 as alleged by the prosecution. This is all the more important in a case where PWs 2 and 3 stated that they had seen the accused holding MO1 on his hand. Hence, a corresponding duty was there on the part of the prosecution to show the weapon to PWs 1 to 3 and 6 to prove the prosecution case during the trial. The non-production of material objects during the trial has prejudiced the case of the accused. Considering the time lag, this Court is not inclined to remand the case for filling up the lacuna on the part of the prosecution. Thus, the accused is
entitled to get the benefit of doubt.
14. Both the trial court and appellate court appreciated
the evidence without considering the above legal aspects. Hence, the concurrent findings of conviction and sentence are liable to be set aside. In the result, the revision is allowed. The revision petitioner/accused is found not guilty for the offences punishable under Sections 326 of the IPC and accordingly, he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is deposited during the pendency of the revision, pursuant to an order of this Court, the same shall be refunded to the revision petitioner/accused, in accordance with law. Pending applications, if any, stand disposed of. Sd/- N.ANIL KUMAR, JUDGE dlk/05.01.2021