Kerala High Court
No.1 (Ad Hoc) vs Varghese on 9 July, 2020
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942
Crl.Rev.Pet.No.2902 OF 2005
CRA 266/2004 OF ADDITIONAL SESSIONS COURT, FAST TRACK COURT
NO.1 (AD HOC), MANJERI
CC 510/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR
PETITIONERS/APPELLANTS/ACCUSED
1 VARGHESE
AGED 70 YEARS
S/O. THOMAS, KOTTARATHIL HOUSE, KUNDANPOTTI,,
CHOKKAD AMSOM DESOM.
2 TOMI, AGED 43
S/O. VARGHESE, KOTTARATHIL HOUSE,, CHOKKAD AMSOM
AND DESOM.
BY ADVS.
SRI.PHILIP T.VARGHESE
SMT.AFSANA ASHRAF
KUM.CHITHRA CHANDRASEKHARAN
SRI.DENNY VARGHESE
SRI.LIJO RAJU
SMT.K.R.MONISHA
SRI.C.RAKESH VENUGOPAL
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
RESPONDENT/RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
SRI. BREEZ, PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 1.7.2020, THE COURT ON 09.07.2020, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
Crl.R.P.2902/2005
2
ORDER
Dated : 9th July, 2020
1. This Criminal revision petition has been filed against the judgment in Crl.Appeal 266/2004 of the Additional Sessions Court - Fast Track Court-I, (Ad hoc) Manjeri.
2. Revision petitioners are the accused in C.C.510/2001 on the file of the JFCM, Nilambur. Prosecution case is that on 11.8.2001 at about 11.30 am, accused 1 and 2 in furtherance of their common intention, voluntarily caused hurt to PW1, the de facto complainant and trespassed into his property and abused him using filthy language and first revision petitioner/first accused inflicted injuries by beating with boundary stake and the second revision petitioner/second accused by hitting with a stone and kicking.
3. On the side of the prosecution PW1 to 5 were Crl.R.P.2902/2005 3 examined and Exts.P1 to P3 were marked and MOs 1 and 2 were identified and marked. After the closure of prosecution evidence, revision petitioners/accused were questioned under Sec.313 of the Cr.P.C. They denied all the incriminating facts and circumstances put to them. Thereafter on hearing both sides, the trial court convicted and sentenced the revision petitioners/accused to undergo simple imprisonment for one month each under Sec.447 IPC and to undergo simple imprisonment for one year each under Sec.324 IPC. Sentences were directed to run concurrently. They were acquitted of the charges under Secs.323 and 294 (b) IPC. Against which the Crl.Appeal 226 /2004 was filed and as per the judgment dated 4.10.2005 the learned Additional Sessions Judge confirmed the conviction and modified the sentences under Sec.324 IPC to fine of Rs.1000/- each and to pay Rs.500/- each under Sec.447 IPC. Aggrieved by the same, the revision petitioners came Crl.R.P.2902/2005 4 up in revision for the various grounds stated in the memorandum of revision.
4. Notice was issued to the respondent and the respondent appeared through the learned public prosecutor. Lower court records were called for and perused. Heard both sides.
5. The first revision petitioner/first accused is reported to be no more and copy of the death certificate also produced along with Crl.M.A.1/2020 which would prove that the first revision petitioner died on 6.8.2015. So the death of first revision petitioner is recorded. Hence the charge against the first revision petitioner abated.
6. According to the learned counsel for the revision petitioners, the courts below erroneously without appreciating the facts and evidence in a proper perspective, convicted and sentenced the revision petitioners/accused (they would be referred as 'accused' hereinafter) under Secs.324 and 447 Crl.R.P.2902/2005 5 IPC. According to her, PW1 the de facto complainant and PW4, one eye witness alone have been examined to prove the occurrence and their evidence are contradictory to each other and there is no supporting medical evidence to prove the injuries sustained to PW1 since the doctor was not examined. She would also contend that admittedly there was a civil dispute pending between the parties in connection with the boundary and out of that in order to wreck vengeance this false case has been charged against them. She would also contend about a counter case pending against PW1 in connection with the same incident.
7. The learned public prosecutor on the other hand would contend that both the courts below correctly found the accused persons guilty and there is no illegality or irregularity in the concurrent findings.
8. On going through the judgment in Crl.Appeal 266/2004, in para 10, the appellate court has found that PW1 the de facto Crl.R.P.2902/2005 6 complainant has given evidence in consonance with his First Information statement and he is not discredited in cross- examination. It is further stated that he is seen fully corroborated by PW2 to 4 and they are also not seen discredited in cross-examination and it is further found that their evidence is seen corroborated by the lower court in a perspective manner and hence the appellate court do not find any reason to disagree with the conclusion arrived at by the trial court. But on looking at the evidence of PW2 and 3 it is seen that PW2 has only stated about the signing of Ext.P2 mahazar and PW3 is the head constable, who registered the FIR based on Ext.P1 F.I. statement produced before him by CW9 and the FIR is marked as Ext.P3 through him.That evidence has been read in corroboration with the evidence of PW1.
9. To prove the occurrence, apart from PW1 actually PW 4, Cooiie worker under PW1 alone examined. So the question Crl.R.P.2902/2005 7 for determination is how far prosecution succeeded in proving the case through their evidence. PW1 the de facto complainant deposed that the incident occurred on 11.8.2001 at 11.30 am on the southern side of the estate belonging to the Church. He sent the workers for repairing the fencing erected on the boundary of the estate and PW4, CW3 and Cw 4 were the workers. After some time, CW4 came and told him that the accused persons are not permitting to put up the fence. Hence he went to the spot and accused were standing outside the fence. He was standing inside the fencing. Then accused persons abused him and the first accused beat him with a fencing stake and that touched on the left side of his head and he sustained injury and the second beating was warded off by him with hand and he sustained injury on the hand. The second accused hit on his back with stone and he sustained injury and fell down. When the workers came, the accused ran Crl.R.P.2902/2005 8 away. Further he stated about the FI statement given by him and it is marked as Ext.P1 through him. He also stated that accused has no right over the property and it belongs to the Church and further stated that they used to abuse him and he also identified the stick and stone used by the accused persons as MO1 and 2.
10. PW4 stated that on 11.8.2001 at 11.30 am in the property of PW1, while renovating the fence along with CW3 and 4, the accused persons came to the spot, abused him and obstructed in putting up the fence. Hence CW4 was sent to call PW1. There upon PW1 came there and accused persons entered into the property of PW1. First accused beat him with boundary stake and it touched on the head of PW1 and the second accused hit PW1 on his back with a stone and kicked him on his abdomen. He also stated that the second accused rushed towards PW1 with a chopper for slashing him. There upon the first accused prevented him Crl.R.P.2902/2005 9 and they brought PW1 to the Asram and thereafter took him to the hospital. Both PW1 and 4 identified MO1 as the stick and MO2 as the stone used by the accused persons.
11. As I stated earlier, the main contention of the learned counsel for the accused is that the evidence of PW1 and 4 are not corroborative to each other and PW1 stated during cross-examination that there was no chopper in the hands of second accused. But PW4 in chief examination itself stated about the chopper in the hand of second accused and the attempt by him to slash PW1 with the chopper. During his cross-examination, he reiterated that the second accused aired the chopper in his hand for slashing PW1 and the first accused prevented the same. He also stated that there was chopper in the hand of second accused from the beginning. Further he would depose that the second accused hit PW1 with the stone using his right hand and at that time, the chopper was not with him and it was put down. Further, the Crl.R.P.2902/2005 10 suggestion that PW1 slashed the first accused and he sustained injury, is denied by him and the suggestion so put to PW1 was also denied by him. So the evidence of PW1 and PW4 are quite contradictory to each other with regard to chopper held by PW4. It is also deposed by PW4 that when the second accused aired PW1 to slash with chopper that was prevented by the first accused. If that be the case, how can it be believed that the first accused beat PW1 with a boundary stake? It is in this context that the evidence of PW1 and 4 with regard to the beating of first accused to be appreciated. According to PW1, first accused beat him with a boundary stake on his head and it touched on the left part of his head and he sustained injury. The second beating was warded off by him with hand and he sustained injury on the hand. The second accused hit on his back with a stone and he sustained injury. Whereas PW4, the sole eye witness examined from the side of the prosecution would state that Crl.R.P.2902/2005 11 the first accused beat PW1 three to four times with a boundary stake lying there and PW1 tried to obstruct the beating. He also stated that the second accused kicked down PW1. But PW1 only stated about the hitting with stone by the second accused on his back resulting him to fell down. So there is clear contradiction in the evidence of PW1 and 4 with regard to the overt act by the deceased first accused and the second accused.
12. With regard to the stick used by the first accused for beating PW1 also, PW1 and 4 have got different version. According to PW1, during cross-examination the first accused pulled out a boundary stake and beat him. But according to PW4, the first accused beat PW1 with a stake which was lying there.
13. With respect to the criminal trespass also, the evidence of PW1 and 4 are contradictory. According to PW1, he was standing inside the fence and the accused were standing Crl.R.P.2902/2005 12 outside the fence. He has no case that accused persons trespassed into the property of the Church and assaulted him. Whereas PW4 deposed in chief examination that accused 1 and 2 entered into the property. During cross examination he stated that accused demolished the fence and entered into the property. But when he was asked about the absence of such a statement to the police he has nothing to state also. So the evidence of PW1 and 4 are not corroborative in the alleged act of criminal trespass into the property of PW1 by the accused persons.
14. In this context, the contention of the learned counsel for the revision petitioner about the non examination of the doctor assumes importance. The learned counsel also took my attention to Krishnankutty v. State of Kerala (2015 (2) KLJ 650) wherein while dealing with Sec.32, 145 and 157 of the Indian Evidence Act it has been held that wound certificate is not a substantive evidence and it is a piece of Crl.R.P.2902/2005 13 evidence that may be used only for corroboration under Sec.157 or for contradiction under Sec.145 of the Evidence Act unless it is covered by Sec.32 of the Act. It is also stated that the doctor should be asked to depose to the injuries noted by him which would then become substantive evidence and only thereafter wound certificate issued by him can be allowed to be tendered in evidence. It is also held that tendering corroborative piece of evidence without adducing substantive evidence is a futile exercise. So no doubt without examining the doctor, the contents in the wound certificate ought not have been referred by the learned magistrate. The appellate court has not acted upon the wound certificate also.
15. It is a settled position that the nature of injury and opinion of medical officer are not a condition precedent for convicting a person under Sec.324 IPC. In State v. Haridasan (1978 KHC 17), which is quoted in the trial court Crl.R.P.2902/2005 14 judgment also, the learned judge has categorically found that the evidence of an expert being in the nature of opinion, it necessity arises only where direct evidence is not satisfactory or disinterested and it requires corroboration by way of opinion of an expert. It is also held that it may be proper to set aside the conviction under Sec.324 IPC on the ground of evidence of a medical officer in a case where the evidence adduced falls short on proving as to the nature of the weapon used. In such cases, the opinion of medical expert may be on assistance to the court in forming an opinion whether a weapon of the category mentioned in Sec.324 IPC has been in fact used by the accused. It is further held that where the oral evidence is safe and reliable in proving the nature of the weapon used, the court need not base its conclusion on the point from the opinion of the medical expert gathered from the examination of the injured.
16. It is notable that in that case actually the Assistant Crl.R.P.2902/2005 15 Surgeon attached to the Government hospital, Calicut, was examined and proved Ext.P3 intimation sent by him stating that one Hassan Koya has been admitted in that hospital for injuries alleged to have caused by stabbing on the chest by one Haridasan and he expressed his inability to speak the nature of the injuries in the absence of the wound certificate.
17. But in this case, the doctor was not examined and the evidence of PW1 and 4 are also not seems to be corroborative to each other in material particulars regarding the overt act. So also two other independent occurrence witnesses, CW3 and 4, were not examined from the side of the prosecution though they are said to be the workers under PW1.
18. It is true that it is not the quantity of the evidence, but the quality that matters. It has been held in State of Kerala v. Choyunni (1980 KLT 107) that there is no legal bar for Crl.R.P.2902/2005 16 entering a conviction on the uncorroborated testimony of a single witness, if on scrutiny the court is satisfied that it is wholly reliable. But here the evidence of PW1 and 4 as stated earlier are not corroborative or consistent.
19. It is in this context, that the contention of the learned counsel for the revision petitioner regarding the long pending litigation between the Church and the people residing on the other side of the river bank is relevant to be appreciated. PW1 during chief-examination itself stated that from 1970 onwards there has been case in between the Church and the people residing on the other side of the river. It is also stated by him in chief examination that there was an order of the court prohibiting construction of bund and they were permitted to put up retaining wall and accordingly retaining wall was constructed. He would also state that in the year 2000, the people on the other side of the river bank purchased the property newly and thereafter they changed Crl.R.P.2902/2005 17 the flow of water in the river. The accused burnt the tree of the church standing on the other side of the river and that was questioned by him. It is also stated by him that they have trespassed into a small extent of property and they asked him to demolish the retaining wall alleging that their property was lost in the flow of water due to the construction of retaining wall. So that evidence of PW1 in chief examination itself give a clear idea of the dispute between the accused and the Church with respect to the construction of the retaining wall. He would admit during cross- examination that one Anappurath Muhammed Haji had property on the other side of the river and he had filed cases against the Church earlier. But he pleaded ignorance whether injunction was in force against the Church in that case, during the time of incident. It is also admitted by him that at the time of regaining the fence in the boundary of the river that the incident occurred. So also when a question Crl.R.P.2902/2005 18 was put to him as to whether Chokkad grama panchayat has given a complaint to RDO against the act of the church, he pleaded ignorance. But in the very next sentence, he would admit that he came to know through newspaper that such a complaint has been given. It is also admitted by him that the property of the accused is on the eastern side of the bank of the river and they have five acres of property there. It is also suggested to him that due to the act of the Church, the property of the accused had been lost and he denied that fact. But he stated that even before this incident on three to four occasions, accused had abused him. He informed about it to the Nilambur S.I and the S.I had come to the spot and that is before six months of this incident. But no case has been registered against the accused in connection with the same. It is further admitted by him that, O.S.98/2001 is pending before the Munsiffs Court, Manjeri with regard to this property. So the above evidence of PW1 also would give Crl.R.P.2902/2005 19 a clear picture regarding the civil dispute with regard to the construction of the retaining wall prevailing between the parties and the Chokkad grama panchayat also said to have filed complaint against the act of the Church to RDO, as has been admitted by PW1. So when there was an attempt from the side of the Church to repair the fencing, the accused persons might have raised the objection since admittedly they have got property on the boundary of the river. That might have resulted in altercation between the parties and filing of this complaint. It is also the case of the revision petitioners that a case was registered against PW1 in connection with the same incident and the suggestion to PW1 during cross-examination was that out of previous enmity he slashed the first accused with a chopper. That was denied by him and anyway it has been stated in the judgment passed by the trial court that based on the complaint filed by the deceased the first accused, a crime Crl.R.P.2902/2005 20 was registered by the police and subsequently it was referred as false and thereafter protest complaint was filed by the accused. In the above scenario in view of the inconsistent evidence of PW1 and 4 in the absence of any medical evidence it is highly unsafe to accept the prosecution case as alleged to find the second accused guilty under Sec. 324 IPC. With respect to the offence under Sec.447 IPC also the evidence of PW1 and 4 are not corroborative. Hence the second accused is entitled for benefit of doubt.
20. So on a careful evaluation of the facts and circumstances and evidence adduced, I am of the considered view that the trial court as well as the appellate court improperly appreciated the evidence and found the accused persons guilty under Secs 324 and 447 IPC and that has caused miscarriage of justice and hence the conviction and sentence passed against the second Crl.R.P.2902/2005 21 accused/second revision petitioner is liable to be interfered with.
21. In the result, revision petition is allowed and the conviction and sentence passed against the second revision petitioner is hereby set aside and he is set at liberty. Fine amount, if any paid already, shall be refunded. The bail bond executed by the second revision petitioner stands cancelled and he is set at liberty. The revision petition abated as against the first revision petitioner.
Sd/-
M.R.ANITHA Judge Mrcs/2.7.