Kerala High Court
Remasan vs State Of Kerala on 4 October, 2012
Author: P.S. Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934
Crl.Rev.Pet.No. 2811 of 2005 ( )
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CRA.398/2004 of SESSIONS COURT,KOZHIKODE
CC.487/2001 of J.M.F.C-I,PERAMBRA
REVISION PETITIONER(S)/APPELLANTS 1,3 TO 7/ACCUSED 1, 3 TO 7::
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1. REMASAN, S/O. KUNHIKANNAN,
MENHANNIAM AMSOM,KOTTAPPURAM DESOM, KOYILANDY TALUK.
2. RADHAKRISHNAN, S/O. KUNHIKELAPPAN,
MENHANNIAM AMSOM, MARUTHERI, KOYILANDY TALUK.
3. PAREETH, S/O. KUNHIMOIDI,
MENHANNIAM AMSOM, MARUTHERI DESOM, KOYILANDY TALUK
4. KAKKATTUMMEL BALAN,
MENHANNIAM AMSOM, MARUTHERI DESOM,KOYILANDY TALUK.
5. GOPALAN, S/O. ARUMA,
MENHANNIAM AMSOM, MARUTHERI DESOM,KOYILANDY TALUK.
6. PRAKASAN, S/O. KELU NAIR,
MENHANNIAM AMSOM, MARUTHERI DESOM,KOYILANDY TALUK.
BY ADV. SRI.P.V.KUNHIKRISHNAN
COMPLAINANT(S)/RESPONDENT/COMPLAINANT & STATE::
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STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY P.P.SMT. SAREENA GEORGE
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.S. GOPINATHAN, J.
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Cr.R.P.NO.2811 OF 2005
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Dated this the 4th day of October, 2012
O R D E R
Petitioners are accused 1 and 3 to 7 in C.C.No.487/2001 on the file of the Judicial Magistrate of First Class, Peramabra. In Crime No.11/2001, the Station House Officer, Perambara prosecuted the revision petitioners and another (2nd accused) accusing offences under Sections 143,147,148,448,323,324 and 427 read with Section 149 of the Indian Penal Code (IPC) with allegations that at 4.30 p.m on 7.1.2001, the revision petitioners formed themselves into an unlawful assembly and being members of the unlawful assembly, they were armed with deadly weapons, like sticks and crowbars; and committed rioting. They trespassed into a shop room belonging to PW1 and assaulted CW4, who was in the shop of PW1. CW4 ran away and took shelter at the house of PW1 which was adjacent to the shop room. Accused chased him and he was pulled out of the house and again assaulted with sticks and crowbars. Seeing that, PW1 and his wife, who was examined as PW2, intervened. Cr.R.P.NO.2811 OF 2005 : 2: They were also assaulted. The revision petitioners then returning to the shop committed mischief by damaging the glass jars in the shop thereby causing damage to the tune of Rs.2,500/-. PWs 3 and 4, who were also near the shop of PW1, were assaulted. All victims were shifted to the Community Health Centre, Perambara where PW6 was working as an Assistant Surgeon. Getting intimation from the Health Centre, PW11, a head constable attached to Perambra Police Station, proceeded to the health centre and recorded Ext.P1 First Information Statement given by PW1. On the basis of Ext.P1, the case was registered. Investigation was taken over by PW12, the Sub Inspector Police. The Additional Sub Inspector of Police, who after completing the investigation, submitted charge sheet against six persons (A1 to A6).
2. Responding to the process, they entered appearance before the learned magistrate and pleaded not guilty when the charge was framed, read over and explained. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 12 were examined. Exts.P1 to P9, MO1 series and MO2 were marked. While the case was posted for recording the statement Cr.R.P.NO.2811 OF 2005 : 3: of the accused, the Assistant Public Prosecutor filed a petition under Section 319 of the Code of Criminal Procedure stating that the 6th revision petitioner was also involved in the offence alleged as revealed out from the evidence. Allowing that petition, the 6th revision petitioner was arrayed as the 7th accused. Thereafter all the witnesses, except Pws 4, 9 and 10 were examined. Stating that irrespective of the coercive steps, presence of Pws 4, 9 and 10 could not be secured, they were not further examined. When questioned under Section 313 of the Code of Criminal Procedure, accused denied the incriminating evidence and contended that the prosecution was launched due to political motivation. However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently all the accused were convicted and sentenced to rigorous imprisonment for three months each for offences under Sections 143,147 and 148 IPC; and rigorous imprisonment for six months each for offences under Sections 448, 323,324 and 427 IPC.
3. Aggrieved by the above conviction and sentence, they preferred Crl.A.No.398/2004 before the Sessions Judge, Cr.R.P.NO.2811 OF 2005 : 4: Kozhikode. The learned Sessions Judge by judgment dated 5.10.2005 arrived at a finding that the evidence on record is not sufficient enough to conclude that the 2nd accused had participated in commission of the offence alleged. Whereas there is sufficient evidence to sustain the conviction and sentence as against the revision petitioners. Consequently, the appeal as regards the 2nd accused was allowed. The appeal as regards accused 1 and 3 to 7 was dismissed. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.
4. I have heard Adv. Sri. Anoop, the learned counsel for the revision petitioners and Smt. Sareena George, the learned Government Pleader. Perused the judgments impugned and the evidence on record.
5. The courts below rejected the evidence of PW4 as his presence could not be procured for further examination after impleading the 6th revision petitioner. Barring PW4, there is the oral testimony of PWs 1 to 3, 5, 7 and 8 in support of the prosecution case. Of the above, PWs 1 to 3 and Cr.R.P.NO.2811 OF 2005 : 5: 5 are the injured. PWs 7 and 8 are the occurrence witnesses. PW6 is the Assistant Surgeon, who treated PWs 1 to 5 and CW4. Exts.P2 to P7 are the wound certificates.
6. The evidence of PW6 supported by Ext.P2 wound certificate would show that PW4 had lacerated wound 5 x 1 cm over the left hand with bleeding, lacerated wound 2x5 cm over the occipital region of scalp over the forehead and contusion over left leg. The injuries were bleeding and the injured was referred to the Medical College Hospital. His further evidence supported by Ext.P3 would show that CW4 had sustained lacerated wound 3x1 cm over the frontal region of the scalp with bleeding, abrasion and contusion over the right leg and contusion over the back of neck. Further evidence of PW6 supported by Ext.P4 would show that PW5 had sustained contusion over the right shoulder, contusion over the right forearm and contusion over the right gluteal region. PW5 was also referred to the Medical College Hospital. Supported by Ext.P5, the evidence of PW6 would further show that PW1 had contusion over the right shoulder. Ext.P6 and the further evidence of PW6 would show that PW2 had sustained Cr.R.P.NO.2811 OF 2005 : 6: contusion over the right shoulder. The evidence of PW6 supported by Ext.P7 would show that PW3 was also brought to the Health Centre, but he had no external injuries. It is the consistent evidence of PW6 that cause of injury was due to assault by Prakasan (A7), Asokan and others with crowbars and sticks. According to PW6, the injuries noted could be caused as alleged. What was suggested in cross examination is that the injuries mentioned above could be caused by fall or scuffle.
7. PWs 7 and 8, who are the independent witness, had given evidence regarding the assault alleged. Their evidence Supports the evidence of PWs 1 to 3 and 5. Ext.P1 would corroborate with Pws 1 to 3,5,7 and 8. As observed by the courts below, there are some discrepancies here and there, but those discrepancies would not affect the core of the prosecution case. The court below had believed their evidence in finding the revision petitioners guilty for the offences alleged. Thought it is revealed that the victims and the revision petitioners are belonging to different political parties, it does not appear that the case on hand was falsely foisted. There is nothing to suggest that either the victims were armed with any weapon Cr.R.P.NO.2811 OF 2005 : 7: or that they were the assailants. It could not be said that the injuries mentioned were self inflicted injuries. It is pertinent to note that within one and half hours after the incident, all the victims had been to the Health Centre and they were examined by PW6. On getting intimation, PW11 rushed to the Health Centre and recorded Ext.P1 First Information Statement on the next day at 12 O' Clock. There is no much delay in recording the First Information Statement. It does not appear that Ext.P1 First Information Statement which corroborates with the evidence of Pws 1 to 3, 5, 7 and 8 on material particulars is a concocted document. In the above circumstance, I find little merit to conclude that court below had any way gone wrong in appreciating the evidence to come to a finding of guilty as against the revision petitioners. The conviction is based upon cogent evidence.
8. Though I find no reason to have any leniency to the revision petitioners, I find that this is a fit case in which compensation ought to have been awarded to the victims. Therefore the sentence requires modification and that a Cr.R.P.NO.2811 OF 2005 : 8: sentence of simple imprisonment for one month for offences under Section 143, 147 and 148 and a fine of Rs.1,000/- each, and simple imprisonment for three months for offences under Setions 448, 323, 324 and 427 IPC and a fine of Rs.5,000/- each under Section 324 and 427 IPC would meet the ends of justice.
In the result, this revision petition is allowed in part. While confirming the conviction, the sentence for offences under Sections 143,147 and 148 is reduced to simple imprisonment for one month and a fine of Rs.1,000/- each. For offences under Section 448, 323,324 and 427IPC, the sentence is reduced to simple imprisonment for three months and a fine of Rs.5,000/- each for offences under Section 324 and 427 IPC. In default of payment of fine, the revision petitioners shall undergo simple imprisonment for a further period of three months. Out of fine amount, if collected, Rs.5,000/- each shall be paid to PW1. Rs.2,000/- shall be paid to PW2. Rs,500/- and Rs.1,500/- respectively shall be paid to PWs 3 and 5. The trial court shall see the execution of sentence and Cr.R.P.NO.2811 OF 2005 : 9: report compliance. Under trial imprisonment, if any, shall be set off.
Sd/-
P.S. GOPINATHAN, JUDGE.
cl /true copy/ P.S. to Judge Cr.R.P.NO.2811 OF 2005 : 10: