Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942 CRA 265/1998 OF ADDITIONAL SESSION'S COURT-I, MAVELIKKARA CC 354/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHENGANNUR REVISION PETITIONER/S: SURESH S/O CHELLAPPAN, THUNDILTHARAYIL VEEDU, ENNAKKADU VILLAGE, PERINGALIPURAM. BY ADVS. SRI.VPK.PANICKER SRI.ABRAHAM GEORGE JACOB SRI.A.R.DILEEP SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.S.GOWTHAM SMT.SREELEKHA PUTHALATH RESPONDENT/S: 1 STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE MANNAR POLICE STATION, MANNAR. R1 BY ADV. PUBLIC PROSECUTOR OTHER PRESENT: SR.PP. M.S.BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ..2..
ORDER
Dated this the 7th day of August, 2020 The revision petitioner is the 1st accused in CC No. 354 of 1996 on the file of the Judicial First Class Magistrate Court-II, Chengannur. By
judgment dated 17.11.1998, the learned
magistrate convicted and sentenced the 1st accused to undergo rigorous imprisonment for one year and also to pay a fine of Rs.2,000/- for the offence punishable under Section 326 of the Indian Penal Code (hereinafter referred to as “IPC”), in default to undergo simple imprisonment for three months. The 1st accused was also sentenced to pay a fine of Rs.5,000/- for the offence punishable under Section 427 of the IPC, in default to undergo simple imprisonment for three months. The 2nd accused was sentenced to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for ..3.. three months for the offence punishable under Section 324 of the IPC.
2. Challenging the conviction and sentence,
accused 1 and 2 preferred Crl. Appeal No. 265 of 1998 before the Sessions Court, Alappuzha. By judgment dated 28.11.2003, the learned Additional Sessions Judge-I, Mavelikkara, to whom the case was made over for hearing, allowed the appeal in part confirming the conviction and sentence imposed against the 1st accused for the offence punishable under Section 326 of the IPC. However, accused 1 and 2 were acquitted under Sections 324 and 427 r/w Section 34 of the IPC. Feeling aggrieved, the 1st accused is before this Court in revision.
3. Parties are hereinafter referred to as PW1, PW2 and the accused according to their status in the trial court unless otherwise stated.
4. The prosecution case in brief is that on
16.05.1996, accused 1 and 2 in furtherance of their common intention, out of prior enmity ..4.. towards PW1, with an intention to cause bodily injury to PW1, the 1st accused assaulted PW2 with an iron rod and the 2nd accused assaulted PW2 with a sickle and while so, PW1 intervened and the 1st accused beat her with an iron rod on her left hand. It is further alleged that PW2 had lost a sum of Rs.21,000/-, which was kept in the fold of his dhothy for the purchase of a buffalo and thereby, the accused alleged to have committed the offences punishable under Sections 326, 324 and 427 r/w Section 34 of the IPC.
5. On the appearance of the accused 1 and 2 before
the trial court, the learned magistrate after having heard both sides, framed charges against the accused under Sections 326, 324 and 427 r/w Section 34 of the IPC. The charge was read over, to which the accused 1 and 2 pleaded not guilty.
6. During the trial, PW1 to PW9 were examined and
Exts.P1 to P7 and MOI and MOII were marked on ..5.. the side of the prosecution. On crossing the evidence of prosecution, the accused was questioned under Section 313 of the Criminal Procedure Code (hereinafter referred to as “Cr.P.C.”) On being questioned under Section 313(1)(b) of the Cr.P.C., the 1st accused specifically contended that the occurrence took place in front of his house. According to him, PW1 assaulted his mother and when he tried to intervene, PW1 inflicted injuries on him. To substantiate his contention, DW1 was examined.
7. PW1 is the wife of PW2. According to them, they
have sustained injuries in the incident. The alleged occurrence was on the pathway near the residence of PW2 at 9 am on 16.05.1996 while PW2 was proceeding to the market for purchasing a buffalo for an amount of Rs.21,000/-. In Ext.P1 First Information Statement lodged before PW9, PW1 specifically stated that the occurrence place is on the northern side of his house on the pathway leading towards east. When ..6.. PW1 was examined before the court, she stated that the occurrence place is on the northern courtyard of her house. At the same time, PW2 stated that the occurrence took place on the pathway on the northern side of his house. PW4 and PW6 are two independent witnesses alleged to have seen the occurrence. When they were examined before the court, they stated that they did not witness occurrence. According to them, they reached to the scene of occurrence on hearing the hue and cry of PW1 and PW2.
8. PW1 stated before the court that accused 1 and
2 assaulted PW2 with a sickle. She added that the 1st accused assaulted her with an iron rod. When PW2 was examined, he stated before the court that the 2nd accused assaulted PW1 six times with a sickle. According to him, on seeing the occurrence, PW1 rushed in and while so, the 2nd accused assaulted him. In his deposition, PW2 has not stated the description of the weapon used by the 2nd accused to assault ..7.. PW2.
9. When PW1 was examined, MOI and MOII were not
shown to her. However, MOI and MOII were identified through PW2. MOI sickle and MOII were recovered by PW9 during the progress of investigation. On 17.05.1996 at 5.30 pm, PW9 conducted an inspection at the residence of PW1 and PW2 and prepared a search list. The search list is not marked in evidence. He conducted search at the residence of PW1 and PW2 and recovered MOI and MOII. The search list would reveal that the same was forwarded to the learned magistrate on 17.05.1996 at 6.30 pm. However, the endorsement would reveal that the search list was received in court on 23.09.1996. In the search list, two witnesses are cited as independent witnesses. They were not examined before the trial court. In fact, search and seizure of MOI and MOII were not conducted in accordance with law and the search list was not proved in evidence. ..8..
10. PW5 is the Civil Surgeon, Government Hospital, Mavelikkara. PW5 examined PW1 on 15.05.1996 at 11.15 am and issued Ext.P3 wound certificate noting grievous injuries including compound fracture - left ulna.
11. It has come out in evidence that PW1 and PW2
had been in enmical terms with the accused in connection with a boundary dispute. It is further brought out in evidence that a counter case was registered in connection with the very same occurrence as Crime No. 165 of 1996 of Mannar Police Station. When PW9 was examined before the court, he admitted that a counter case was registered against PW1 and PW2 in connection with the very same occurrence. PW3, PW4 and PW6, who were examined as eye witnesses, testified before the court that they reached the scene of occurrence after hearing the hue and cry of PW2. There were material contradictions between the evidence of PW1 and PW2 touching the place of occurrence and the ..9.. injuries sustained to them.
12. Along with the final report, the investigating
officer failed to submit the details regarding the counter case as part of evidence. When there was a counter case in respect of the very same occurrence, the prosecution was obliged to produce the same to substantiate the actual truth before the court. In the case on hand, there was deliberate attempt on the part of the prosecution to suppress the counter case registered against PW1 and PW2.
13. As already indicated, MOI and MOII were not
proved in evidence. Further, MOI and MOII were not shown to PW1. When PW5 was examined, MOI and MOII were not shown to him. During investigation, MOI and MOII were not sent for chemical analysis although PW2 sustained grievous injuries including fracture.
14. Judged by the above standards, this Court is of
the view that the trial court as well as the appellate court wrongly appreciated the ..10.. evidence on record and entered a finding that the 1st accused committed the offence punishable under Section 326 of the IPC. Hence, the conviction and sentence imposed against the 1st accused for the offence punishable under Section 326 of the IPC are liable to be set aside. In the result, the Crl.R.P. is allowed. The conviction and sentence imposed against the 1st accused for the offence punishable under Section 326 of the IPC stand set aside. The 1st accused is not guilty of the offence under Section 326 of the IPC and he is acquitted thereof. Cancelling the bail bond, this Court directs that he be set at liberty.
Sd/- N.ANIL KUMAR JUDGE Bka/07.08.2020