Kerala High Court
Aneesh Kumar vs State Of Kerala on 28 June, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938
CRL.REV.PET.NO. 1793 OF 2005 ( )
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AGAINST THE JUDGMENT IN CRA NO.784/2003 OF SESSIONS COURT,KOZHIKODE
DATED 28.06.2005
AGAINST THE JUDGMENT IN CC NO.67/2000 OF CHIEF JUDICIAL MAGISTRATE,
KOZHIKODE DATED 16-12-2003
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REVISION PETITIONER(S)/APPELLANTS/ACCUSED::
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1. ANEESH KUMAR, S/O. ANANDAN,
CHAMBAYIL HOUSE, VIPANCHIHA,
MARAD, BEYPORE AMSOM.
2. SHYAM KISHAN, S/O. JANARDHANAN,
`KRISHNA PRABHA', HOUSE NO.3/396,
NEAR MARAD ICE FACTORY.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SRI.K.B.SAJEESH
SRI.P.GOPINATH MENON
SRI.C.S.SUNIL
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.V.P.SATHI
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 14-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. R.P. No.1793 of 2005
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Dated this the 14th day of June, 2016
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J U D G M E N T
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This revision petition is preferred by the accused against the judgment in Criminal Appeal No.784 of 2003 of the Sessions Court, Kozhikode. They were charge sheeted by the Chief Judicial Magistrate, Kozhikode in C.C. No.67 of 2000 for the offences punishable under Secs.341, 323 and 326 read with Sec.34 of the Indian Penal Code (hereinafter referred to as IPC for short). The learned Magistrate convicted the accused and sentenced them to simple imprisonment for one month each under Sec.341 read with Sec.34 IPC, simple imprisonment for six months each under Sec.324 read with Sec.34 IPC and simple imprisonment for two years each and fine of Rs.5,000/- (Rupees five thousand only) each in default to undergo simple imprisonment for two months each under Secs.326 read with Sec.34 IPC. Against that, they preferred Criminal Appeal No.784 of Crl. R.P. No.1793 of 2005 2 2003 before the Sessions Court, Kozhikode, where the conviction was confirmed and sentence was modified. Being aggrieved by that, the accused preferred this revision petition.
2. The allegation is that on 11.02.2000 at 6.30 p.m., the accused persons with an intention to hurt PW1, wrongfully restrained him while he was passing through Vattakkinar-Kannancherry Sahagarana Road, near Hindi College and kicked him. The 1st accused assaulted him by beating him with a reaper below right knee and 2nd accused hit him with granite stone on the right elbow and thereby committed the aforesaid offences. Panniyankara Police registered the crime and after completing investigation, Sub Inspector, Panniyankara laid charge before the Chief Judicial Magistrate, Kozhikode. In pursuance of the charge, prosecution examined PW1 to PW6 and marked Exts.P1 to P5 as material objects. MO1 and MO2 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence.
Crl. R.P. No.1793 of 2005 3
3. The main contention advanced by the learned counsel appearing for the revision petitioners was that medical evidence is not corroborating the overt act alleged by PW1. There is no independent corroboration to the alleged story. The interested testimony of PW1 alone is not sufficient for a conviction. This illegality committed by the courts below has to be rectified by invoking the revisional jurisdiction.
4. In this context, I have considered the evidence of PW1 who was the occurrence witness. The evidence of PW1 shows that on 11.02.2000 at 6.30 p.m., while he was proceeding through Vattakkinar- Kannancherry Sahagarana Road and reached near Hindi College, somebody kicked him from behind. As a result, he fell down, at that time two persons came there. One of them held him and A1 beat him with a reaper on the right leg below knee, A2 hit him with a granite stone on the head and on right elbow. PW1 cried loudly. People gathered there. PW2 who accompanied him took him to the hospital. Police recorded his statement. PW1 identified MO1 reaper. The attack was due to political Crl. R.P. No.1793 of 2005 4 enimity. During cross examination, he admitted that four persons attacked him and he could not identify the other two persons. He also admitted that he is the accused in C.C. No.618 of 2000. Analysing the evidence of PW1 it is clear that the attack was due to political enimity.
5. PW2 turned hostile. PW6 conducted recovery of MO1 and PW3 attested the recovery mahazar. Injured was treated in the Medical College Hospital, Calicut by PW4. Ext.P3 is the wound certificate issued by him. According to him, on examination, the patient was conscious and there was no external wound. There was swelling on the right ankle joint and contusion of right elbow. X-ray shows that right ankle joint was broken. Even though PW1 stated that he sustained injury below knee, Ext.P3 shows that the actual injury is on the right ankle.
6. Apex court in Shivji and others v. State of Madhya Pradesh [AIR 1980 SUPREME COURT 552] held as follows :
"In view of the medical evidence discussed above, it is manifest that having regard to the Crl. R.P. No.1793 of 2005 5 injuries sustained by the appellant Shivji, it was impossible for him to fire the gun as alleged by the prosecution witnesses. Thus the evidence given by the prosecution is wholly inconsistent with the medical evidence. The prosecution deliberately concealed the manner in which the accused persons viz. Shivji and Bhonda have received the injuries, and have thus not come out with the true version of the occurrence. It may be that if the two injuries were received by the appellant Shivji and Bhonde in the third incident itself, the accused may have been justified in the right of private defence of person to fire at the deceased. In these circumstances therefore we are satisfied that the prosecution has not proved its case beyond reasonable doubt. Finally, when the Sessions Judge had acquitted the appellants and rejected the prosecution case, it could not be said from the nature of the evidence led by the prosecution that the view taken by the Sessions judge was not reasonably possible. It may be that the High Court may have taken a different view but the High Court has not shown that the view taken by the learned Sessions Judge was not reasonably possible" (Para 2) In Irlapati Subbaya v. The Public Prosecutor, Andhra Pradesh [AIR 1974 SUPREME COURT 836] Crl. R.P. No.1793 of 2005 6 the Apex Court held as follows:
"There is no considerable uncertainty about the time as well as the place at which the incident took place. Furthermore, the injuries on the appellant had not been explained. Apart from the features mentioned already, we find that the village Munsiff, who was available for a complaint about the incident was not informed. This suggests that the party of the prosecution witnesses had something, like stone throwing by them, to hide. The deceased was also not taken to the nearest dispensary to get his wounds dressed." (para 8)
7. Learned Counsel appearing for the revision petitioners produced another decision in Sunil Kundu and Another v. State of Jharkhand [(2013) 4 Supreme Court Cases 422]. The inconsistency between the ocular evidence and medical evidence has been explained by the Apex Court in Mani Ram v. State of U.P. [1994 SCC (Cri)1242] and Kapildeo Mandal v. State of Bihar [(2008) 16 SCC 99] which was discussed in Sunil Kundu (Supra).
8. I have also considered the oral testimony of Crl. R.P. No.1793 of 2005 7 PW1. He sustained injury below knee. But the medical evidence shows that he sustained injury on the right ankle. Moreover, A2 assaulted him with a stone on the head and his right elbow. When the injured is stating about an inconsistent version with regard to medical evidence, there is no reason to believe his oral testimony in toto without any independent corroboration. In such a situation, the ocular evidence is not reliable for a conviction. Where the medical evidence did not support the case of PW1, I am of the opinion that the accused is entitled to get the benefit of doubt.
9. The statement of PW1 was recorded by PW5, Head Constable, which was marked as Ext.P4 in the trial court. Subsequently he registered a crime and Ext.P5 is the FIR. PW6 Sub Inspector of Police, Panniyankara conducted investigation and laid charge before the court. No explanation has been given by the investigating officer with regard to the inconsistent version of PW1. Another contention put forward by the learned counsel appearing for the revision petitioner is that there is a delay in producing the FIR before the court. Even though such a Crl. R.P. No.1793 of 2005 8 contention was raised, no question was asked to the investigating officer about the delay. Therefore that contention itself is discarding. When medical evidence is inconsistent with ocular evidence, the accused is entitled to get the benefit of doubt.
10. The decision reported in Sat Kumar v. State of Haryana [AIR 1974 SC 294] held that;
"There is no rule of law that if the court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible part of the evidence of that witness must be acquitted. It will, however, call for a closer scrutiny of the evidence and the court must feel assured that it is safe to rely upon the witness for the conviction of the remaining accused. (para 7) Where the conduct of the complainant was entirely straightforward he did not rope in innocent persons and his evidence was corroborated by the medical evidence, the fact that some of the accused have been given benefit of doubt is no sufficient ground to discredit the complainant's testimony with Crl. R.P. No.1793 of 2005 9 regard to other accused persons who were convicted." (para 8) .
Therefore, if the court, analyzing the evidence finds some doubt with regard to the complicity of the accused in a crime they are entitled to get the benefit of doubt.
11. Analyzing the facts and circumstances in this case, the trial court failed to appreciate the legal infirmities in connection with the ocular evidence and medical evidence. There is some substance in the submission made by the learned counsel and the explanation offered by the prosecution with regard to the injury is not satisfactory. On a close scrutiny of the oral evidence of PW1 and Ext.P3 wound certificate, the accused are entitled to get the benefit of doubt.
In the result, the conviction and sentence passed by the trial court under Secs.341, 324 and 326 read with Sec.34 IPC are set aside. The accused is acquitted and set at liberty.
Sd/-
P.D. RAJAN,
JUDGE
NS/16/06/2016 / True Copy /
P.A. To Judge