Kerala High Court
Vijayan @ Vijayankutty vs State Of Kerala on 27 June, 2012
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 4TH DAY OF APRIL 2013/14TH CHAITHRA 1935
Crl.Rev.Pet.No. 589 of 2013 (C)
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AGAINST THE ORDER IN Crl.MC.2292/2012 of HIGH COURT OF KERALA,
DATED 27-06-2012
AGAINST THE JUDGMENT IN CRA.NO.132/2012 of ADDITIONAL DISTRICT AND SESSIONS
COURT (ADHOC), PATHANAMTHITTA DATED 25-01-2013
AGAINST THE JUDGMENT IN CC.NO.150/2007 of JUDICIAL MAGISTRATE OF FIRST
CLASS -II, PATHANAMTHITTA DATED 23-07-2012
REVISION PETITIONERS/APPELLANTS/ACCUSED:
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1. VIJAYAN @ VIJAYANKUTTY,
S/O.AYYAPPAN, PALAMOOTTIL VEEDU, VILAKKUPADI,
KOKKATHODU MURI, ARUVAPPULAM VILLAGE
2. BIJITH,
S/O.VIJAYAN, PALAMOOTTIL VEEDU, VILAKKUPADI,
KOKKATHODU MURI, ARUVAPPULAM VILLAGE.
3. VIJEESH,
S/O.VIJAYAN, VILAKKUPADI, PALAMOOTTIL VEEDU,
KOKKATHODU MURI, ARUVAPPULAM VILLAGE
BY ADVS.SRI.M.T.SURESHKUMAR
SRI. RAJA VIJAYARAGHAVAN
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM- 682 031
BY SENIOR PUBLIC PROSECUTOR SRI.LIJU V.STEPHEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
04-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
MJL
Crl.Rev.Pet.No. 589 of 2013 (C)
APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE A - A TRUE COPY OF THE JUDGMENT DATED 27-6-2012 IN CRL.MC
2292 OF 2012
ANNEXURE B - A TRUE COPY OF THE ORDER OF THE LEARNED JMFC-II,
PATHANAMTHITTA DATED 4-5-2012 N CRL.M.P NO.836 OF 2012 IN
CC NO.150/07
RESPONDENT'S ANNEXURES: NIL
/TRUE COPY/
P A TO JUDGE
MJL
K.HARILAL, J.
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Crl.R.P.No.589 OF 2013
--------------------------------------- Dated this the 4th day of April, 2013.
The Revision Petitioners are accused Nos.1 to 3 in CC No.150/2007 of the Court of Judicial First Class Magistrate-II, Pathanamthitta as well as appellants 1 to 3 in Criminal Appeal No.132/2012 on the files of Additional District and Sessions (ADHOC) Court -I Pathanamthitta. They were charge sheeted for the offences punishable under Sections 452,323,324,354,506(ii) r/w 34 IPC; but convicted for offences under Sections 452,323,324 r/w 34 IPC and acquitted for the other offences. After trial, the learned Magistrate sentenced them to undergo simple imprisonment for six months each and to pay a fine of Rs.2000/-(Rupees Two Thousand only) each and in default to undergo simple imprisonment for two months each for the offences punishable under Sections 452, 324 r/w 34 IPC and sentenced to undergo simple imprisonment for three months each for the offence punishable under Section 323 r/w 34 IPC Crl.R.P.No.589 OF 2013 2 and there was a direction to undergo the substantive sentence concurrently with a further direction to pay the fine amount to PW1 as compensation under Section 357(1)
(b) of the Code of Criminal Procedure (for short Cr.P.C.) Though the Revision Petitioners have filed an appeal challenging the conviction and sentence, the appellate court also confirmed the conviction and sentence as such. This revision is filed challenging the concurrent findings of conviction and sentence.
2. The prosecution case is that the accused due to prior enmity trespassed in to the house of PWs 1 and 2 at about 8.30 P.M. on 04-09-2006 and inflicted simple injuries on PW1 and PW2 with dangerous weapons like iron rod, sticks and also inflicted injury by kicking. The accused also outraged the modesty of PW2 and intimidated to kill PW1 and PW2.
3. To prove the case of the prosecution, prosecution examined PW1 to PW4. The prosecution examined the victim who lodged Ext.P1 statement before the police on 06-09-2006 as PW1, and the wife of PW1 as Crl.R.P.No.589 OF 2013 3 PW2. Two independent witnesses were examined as PWs 3 and 4. PW1 deposed that on 04-09-2006 the accused trespassed into his house at 8.40 P.M. at night and 1st accused hit him with an iron rod which fell on his head resulting in bleeding injury. At that time the other accused beat him on his body and his shoulders and he fell down. Thereafter, the accused kicked him and 1st accused hit him with an iron rod on his nose. When his wife and children came to object the accused, they pushed them. They beat PW2 on her wrist. When the neighbours came to his house, the accused ran away from the scene of occurrence. According to him the iron rod used by the 1st accused was having a length of one metre and circumference of = inch. He further testified that there was sufficient light to see the accused. The accused are also neighbours and 2nd accused was his driver. A sum of Rs.13,100/-(Rupees Thirteen Thousand and Hundred only) was due to PW1 from 2nd accused. So he issued a notice demanding that amount and the said act provocated him and caused the incident. The above evidence given by PW1 was corroborated by PW2 who Crl.R.P.No.589 OF 2013 4 is also an injured in the said incident. The injuries sustained by PWs 1 and 2 are proved by Exts.P2 and P5 wound certificates coupled with the oral evidence of PWs 6 and 8 who are doctors who treated them. The said evidence of PWs 1 and 2 are further corroborated by the evidence of PW3 who rushed to the scene of occurrence on hearing the noise from the house of the victims. Even though PW3 was declared hostile to the prosecution, the involvement of the accused in the commission of the offences stood corroborated to some extent through the evidence of PW3 and fully corroborated through the evidence of PW4. PW3 deposed that hearing a commotion from the house of victims, he rushed to the house and at that time he saw the accused leaving the house of PWs 1 and 2 after the commission of the offence. When he reached the house he saw the PW1 lying injured and bleeding was there from the head. So he tied the wounded head with a dhothi and thereafter taken him to hospital. PW4 further deposed that she was in the house at the time of occurrence. But the court below has not relied on the evidence of PW4 in full. After appreciating the Crl.R.P.No.589 OF 2013 5 evidence on record both oral and documentary, the trial court found the accused guilty of the offences with which they are convicted and sentenced them accordingly.
4. In appeal the appellate court also re-appreciated the entire evidence and confirmed the same without any modification or alteration. The learned counsel for the Revision Petitioner submits that there is a delay for two days in filing the complaint and the offence under Section 452 of Indian Penal Code (for short 'IPC') stands not proved beyond reasonable doubt in the absence of the recovery of the iron rod said to have been used to inflict the injuries. It is seen that the offence was committed on 04-09-2006 at 8.45 P.M. and the crime was registered on 06-09-2006 only. But it has come out in evidence that PW1 was brought to the hospital immediately after the incident and the same was corroborated by Ext.P2 wound certificate. The PW2 who sustained minor injuries were brought to the hospital on 06-09-2006 only and she had explained the delay by stating that her mother in law was laid up in the house in a serious condition and that is why the delay was caused. When the Crl.R.P.No.589 OF 2013 6 police officer who registered the crime was cross-examined it is seen that the counsel for the accused himself asked a question attributing cause of delay to the police authorities in registering the crime. Therefore there is no reason to suspect that the reason for the delay in registering the crime was caused by the victim. No other suspicious circumstances can be attributed to the victim for causing the said delay. Therefore I am not inclined to accept the argument of the learned counsel that the crime was registered pursuant to a second thought only.
5. Another argument advanced by the learned counsel for the Revision Petitioner is that in the absence of recovery of the iron rod, the offence under Section 452 of IPC is not proved beyond the reasonable doubt. To substantiate the above contention learned counsel argued that one stick alone was recovered from the house. The counsel further contents that though the prosecution case is that three accused trespassed with sticks only, one was recovered and that too, without any mahazer supporting the recovery of the stick. The said stick was recovered on Crl.R.P.No.589 OF 2013 7 07/09/2006 and produced before the Magistrate court on 20/09/2006. I find some force in the argument advanced by the learned counsel. In addition to this, the evidence of occurrence witnesses does not show the house trespass after preparation. In the absence of sufficient evidence beyond reasonable doubt to show that they trespassed into the house after preparations, I am of the view that the offence alleged under Section 452 IPC is not proved beyond reasonable doubt. Therefore the accused are found not guilty under Section 452 of the IPC. But at the same time, the evidence of PWs 1 and 2 coupled with evidence of PW3, PW6 and PW8 are sufficient to establish beyond reasonable doubt that they voluntarily caused hurt by dangerous weapons. Therefore the conviction under Sections 323 and 324 IPC are sustained.
6. The learned counsel for the Revision Petitioner submits the 2nd and 3rd Revision Petitioners are the son of 1st Revision Petitioner, and now in execution of the sentence, the entire family is undergoing imprisonment. The 1st Revision Petitioner is aged 60 years and his son 2nd Revision Crl.R.P.No.589 OF 2013 8 Petitioner is a driver by profession and he is aged 30 years. The 3rd Revision Petitioner is aged 25 years and he is having no job or income. So the entire family is depending upon the income of 2nd Revision Petitioner. 1st Revision Petitioner is suffering from serious ailments. The counsel further submits that the sentence imposed by the courts below is too harsh, excessive and disproportionate with the nature and gravity of offence for which they were convicted and sentenced. I find some force in the argument advanced by the learned counsel.
7. Now the conviction is confirmed for offences under Sections 323 and 324 IPC only and both offences were compoundable offences at the time of occurrence. Having regard to the nature and gravity of the offences and circumstances under which it was so happened, I am inclined to set aside conviction and sentence under Section 452 IPC and modify the sentence imposed on the Revision Petitioners under Section 323 and 324 as follows.
i) In supersession of the conviction and sentence imposed on the Revision Petitioners by the courts below Crl.R.P.No.589 OF 2013 9 concurrently, the conviction and consequential imposition of sentence under Section 452 IPC shall stand set aside.
ii) The conviction under Section 323 and 324 IPC is confirmed; but the sentence imposed under Sections 323 and 324 IPC shall stand reduced and modified to simple imprisonment for 15 days each and the same shall run concurrently.
iii)Each Revision Petitioner shall pay a compensation of Rs.10,000/-(Rupees Ten Thousand only) to PW1. If PW1 is not available to receive the said amount, it can be deposited in the trial court, and in that event the Magistrate is directed to intimate PW1 to receive the said amount as compensation.
iv)In default, the Revision Petitioners shall undergo simple imprisonment for two months. The sentence under Sections 323 and 324 IPC will stand modified accordingly.
This Criminal Revision Petition is disposed of accordingly.
Sd/-K.HARILAL, JUDGE MJL