Kerala High Court
Revision vs By Advs on 19 June, 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
FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942
Crl.Rev.Pet.No.109 OF 2011
CRA 330/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-III,
THALASSERY
CC 439/1999 DATED 26-04-2004 OF JUDICIAL MAGISTRATE OF FIRST
CLASS, MATTANNUR
REVISION PETITIONER/APPELLANT/1ST ACCUSED
VINODAN, S/O ACHUTHAN,
AGED 44, KEEZHALLUR, KANNUR.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.T.V.JAYAKUMAR NAMBOODIRI
SRI.P.K.RAKESH KUMAR
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
RESPONDENTS/COMPLAINANT & FORMAL PARTY
1 STATE OF KERALA TO BE REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
2 S.H.O.
MATTANNUR, KANNUR.
OTHER PRESENT:
SRI. M.S.BREEZ - SR. PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 19.06.2020, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.R.P.109/2011
2
ORDER
Dated : 19th June, 2020
1. This revision petition has been filed against the concurrent finding of guilt,conviction and sentence passed against the revision petitioner.
2. The revision petitioner is the first accused in Crime No.208/1998 charge-sheeted by the sub inspector of police, Mattannur,Police station under Sections 143, 147, 148, 323 and 326 read with 149 IPC.
3. The prosecution case in short is as follows :
On 18.12.1998 at about 5.30 pm, the accused persons who are CPM sympathizers, out of political rivalry with PW1 for working in the election campaign for Congress (I) candidate of Keezhallur Service Co-operative Bank Election, in prosecution of the common object of causing grievous hurt to PW1 after forming themselves into unlawful assembly, approached PW1 at Kotheri Veliyamparamb road and Crl.R.P.109/2011 3 voluntarily caused grievous hurt to PW1 by striking with deadly weapon, MO1 iron stick, at his left knee and the other accused kicked him and beat him with hand and thereby voluntarily caused grievous hurt to him and committed the offences aforementioned.
4. PW5 who was the ASI attached to Mattannur police station during the relevant time recorded Ext.P1 FI Statement of PW1 at Kannur Government hospital and on the basis of the same, Ext.P3 FIR was registered. Thereafter, PW9 the head constable attached to Mattannur police station conducted the investigation and prepared scene mahazar and questioned the witnesses. Thereafter PW7, the sub inspector of police attached to Mattannur police station, verified the investigation and filed the charge against the accused for the offences aforementioned.
5. On the side of the prosecution PW1 to 9 were examined and Exts.P1 to P4 were marked. MO1 was identified and marked. After the closure of the prosecution evidence accused Crl.R.P.109/2011 4 persons were questioned under Sec.313 (1)(b) Cr.P.C., they denied all the incriminating facts and circumstances put to them. On the side of the defence Exts.D1 to D3 were marked. After trial the court below found the revision petitioner/first accused guilty under Sec.326 IPC and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.5000/- in default to undergo further period of imprisonment for six months. If fine amount is realized, it was directed to be given to PW1. Accused Nos 2 to 10 were acquitted under Sec.248(1) Cr.P.C. Revision petitioner/first accused is also acquitted for the offences under Secs 143, 147, 148, read with Sec.149 IPC.
6. Against the conviction and sentence Crl.Appeal No.330/2004 was filed and the learned Sessions Judge (Ad hoc-III) dismissed the appeal confirming the conviction and sentence passed by the trial court. Aggrieved by the concurrent findings and sentence passed by the court below, the appellant came up in revision for the various grounds stated Crl.R.P.109/2011 5 in the memorandum of revision.
7. Notice was issued to the respondent and the respondent appeared through the learned public prosecutor. Lower Court records were called for. Heard both sides.
8. To prove the occurrence prosecution mainly relies upon the evidence of PW1 - the victim, PW2 and 4 - the two eye witnesses. PW1 the injured would state that the incident occurred on 18.12.1998 at about 5.30 pm on the mud road in front of the house of Gopalan master while he was standing there. According to him, about 20 people came together and among them, first and fourth accused beat him with iron bar on his left leg and he fell down. At that time, about eight people who accompanied them, kicked and beat him and the bone below his left knee has been totally broken. Further he deposed that he is a congress party worker and the accused persons are CPI (M) activists. Ext.P1 FIS given by him was marked through him. He also identified MO1 as the iron rod used by the first accused for beating him.
Crl.R.P.109/20116
9. PW2 is one Ravindran and he also deposed that the incident occurred on 18.12.1998 at about 5.30 pm at the mud road leading towards Veliyamparamb. Further he deposed that while himself, PW1, PW4 and one R.V.Sasindran were talking, about 20 people came towards them and the first accused beat with an iron stick below the knee of PW1 and at that time the fourth accused beat at his right thigh and there upon PW1 sat down and thereafter fell down.
10. PW4 is Thilakan. He deposed that the incident occurred after 5.30 pm on the middle of the road leading from Kotheri to Veliyamparamb while himself and PW1 and CW2 were talking together. The first accused attacked PW1 and beat him with an iron stick below his knee and the fourth accused beat him above his right knee with iron stick. When PW1 fell down, the other accused persons kicked him and beat him with hand. He also stated that the incident occurred out of political animosity and PW1 is an active worker of Congress and accused persons are CPI(M) activists. Crl.R.P.109/2011 7
11. The other witnesses examined are PW3, the mahazar witness and according to him he signed the mahazar near Kotheri ration shop. Since he changed the place of occurrence, he was cross-examined by the learned Assistant Public prosecutor and he also was not prepared to admit the seizure of iron stick at the time of preparation of mahazar. PW6 is the other witness cited in the mahazar. He deposed that he signed in Ext.P2 mahazar at the mud road leading from Kotheri to Veliyamparamb and he also stated that he had seen the seizure of the iron stick from the scene.
12. PW8 was the Assistant Surgeon attached to District Hospital, Kannur and he deposed that on 18.12.1998 at about 7.45 pm he examined one Raghavan master (PW1) with the alleged history of assault occurred in the surroundings of Kotheri L.P.School by Vinod, husband of Keezhalur panchayat president, and about 10 other identifiable persons with iron rod.
13. The learned counsel for the revision petitioner Crl.R.P.109/2011 8 challenges the concurrent findings of guilt on various grounds. He would contend that apart from the revision petitioner all other accused were acquitted giving benefit of doubt in spite of the fact that there are strong circumstances making the prosecution case against the revision petitioner also highly improbable. He would also content that the place of occurrence has been totally changed by the prosecution. All the witnesses are party men. The evidence adduced by defence through Exts.D1 to D3 make the prosecution case as alleged highly improbable but those were not properly appreciated. The case has been politically motivated and the names of accused apart from accused 1 to 4 have been arraigned at the intervention of party persons even admittedly by PW1.
14. To substantiate the contention regarding the change of place of occurrence the learned counsel for the revision petitioner mainly relies upon the evidence of PW1 and also that of PW8 the doctor. The specific prosecution case is that Crl.R.P.109/2011 9 the incident occurred on the road leading from Kotheri to Veliyamparambu in front of the house of P.V.Gopalan master. PW1 the victim stated that the incident occurred on the mud road in front of the house of Gopalan master. PW8 doctor would depose that he had examined PW1 with the alleged history of assault at about 5.30 pm near Mattannur in the surroundings of Kotheri L.P school by Vinod, the husband of Sarala, the panchayat president, Keezhallur. PW8 deposed that the alleged cause was stated by the patient himself. PW1 admitted during cross-examination that the L.P. school is about 100 to 150 metres away from the place of occurrence and it is also stated that he was attacked on the road leading to Veliyamparamb which leads from Kannur - Mattannur road. It is also stated that Kotheri LP school is about 100 metres away from the main road. So it has come out in evidence that the school is somewhat 100 to 150 metres away from the place of occurrence which was stated by PW1, at the first instance, as the place where the occurrence took place. Crl.R.P.109/2011 10
15. The learned counsel in this context took my attention to the judgment passed by the appellate court wherein the appellate court refused to accept the statement given by PW1 to the doctor for the reason that it will never come within the scope of statement recorded under Sec.161 Cr.P.C. In this context the learned counsel took my attention to Sub Sec. 3 of Sec.155 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) and would contend that the statement given by PW1 to the Doctor would come within the purview of a former statement and it could be used for impeaching the credit of the witness. For convenience Sec.155 is extracted below :
Impeaching credit of witness - The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him :-
(1) ..............
(2)...............
(3) by proof of former statements inconsistent with any part of his evidence which is liable to Crl.R.P.109/2011 11 be contradicted.
16. The learned counsel also took my attention to Sec.157 of the Act to substantiate his contention. It reads as follows :
Former statements of witness may be proved to corroborate later testimony as to same fact - In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
17. On analyzing sub-section 3 of Sec.155 and also Sec.157 what could be gathered is that the reference in both the sections are made about former statements of a witness. But as per S.157 it can be used for corroboration alone. So obviously the accused cannot rely upon the former statement for contradiction.
18. So whether the information given by the victim to the Crl.R.P.109/2011 12 doctor about the alleged cause when it includes the place of occurrence can be taken as a former statement coming within the purview of Sections 155 of the Act is the question. On going through the Act it is seen that the word statement has not been defined anywhere in the Act. It has not been defined either in the Code of Criminal Procedure, 1973 or in the Indian Penal Code (45 of 1860). In the General Clauses Act, 1897 also, the word 'statement' has not been defined. In the Oxford Advanced Learner's dictionary, New 7th edition, the meaning of the word 'statement' has been given as something that you say or write that gives information or an opinion. So in common parlance the alleged cause stated by the victim to the doctor also come within the purview of the previous statement and there is no legal bar in using the same under Sec.155 of the Act to impeach the credit of the witness.
Crl.R.P.109/201113
19. PW8 the doctor stated during cross-examination that the history was spoken to by the patient himself. While stating the alleged cause to the doctor PW1 stated that the incident occurred in the surroundings of Kotheri LP school. During cross-examination of PW1, he would state that it is not correct to state that he has been attacked on the surroundings of Kotheri school. He also would state that the place of occurrence is about 100 to 150 metres away from the Kothei school. But it is to be noted that the alleged statement given by PW1 with regard to the place of occurrence to the doctor has not been put to PW1 during his examination. So the question is whether PW1 can be contradicted with the alleged statement given by him to PW8. In this context it is relevant to quote Vinaykumar singh v. State of Bihar (1997 KHC 657 ) where while dealing with Secs 145 and 155(3) of the Act it is held by the Apex Court that the first limb of Sec.145 of the Act Crl.R.P.109/2011 14 provides that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that if it is intended to contradict him by the writing, his attention must before the writing can be provided be called to those parts of it which are to be used for the purpose of contradicting him. But in this case, the statement with regard to the alleged cause with reference to the place of occurrence stated by PW1 to the doctor has not been put to PW1 during his cross-examination. So 155(3) of the Evidence Act cannot be resorted to for making use of the statement alleged to have been given by PW1 to the doctor for discrediting him. But the fact remains that PW1 during cross-examination admitted that it is not correct to state that he has been attacked in the surroundings of Kotheri school and that school is about 100 to 150 metres away from the place of occurrence.
Crl.R.P.109/201115
20. In this context it is notable that two witnesses were examined from the side of the prosecution to prove the scene mahazar. Among them PW3 deposed that he signed in Ext.P2 scene mahazar near the ration shop at Kotheri. Since the place of occurrence was so stated in contradiction to the prosecution case, the learned Assistant Public prosecutor after getting permission of the court, cross-examined him. Though he stated in the affirmative while putting a leading question that he has signed at Kotheri on the middle of mud road leading to Veliyamparamb, that cannot be admitted in evidence. More over he would state that he had not seen the police seizing the iron rod. Since PW3 did not support the prosecution case regarding the place of occurrence, PW6 the other mahazar witness was also examined and he stated that he signed Ext.P2 scene mahazar at the mud road leading from Kotheri to Veliyamparamb and he also stated that he saw the seizure of iron stick from the place of occurrence. But during cross-examination he categorically stated that the iron Crl.R.P.109/2011 16 stick was seized from the side of the ration shop near the road. That seems to be in corroboration with the evidence of PW3 in chief. In Ext.P2 scene mahasser it is stated that the ration shop is situated about 40 meters away from the place of occurrence (run by one K.N.P.Jaleel). So it appears that the mahazar witness PW6 who supported the prosecution case also states about the seizure of the iron stick alleged to have been used by the revision petitioner from the side of the ration shop situated on the side of the main road. That fact is not further challenged in re-examination also. Description in Ext.P2 is that MO1 has been seized from the western boundary of the Kotheri -Veliyamparamb mud road. So if at all the place of occurrence is the mud road leading from Kotheri to Veliyamparamb, how can this iron rod MO1 could be seized from the side of the ration shop which is situated on the side of the Mattannur - Kotheri public road? It is in this context that Exts.B1 to B3 produced from the side of the revision petitioner assumes importance. It is undisputed that Crl.R.P.109/2011 17 crime NO.297/1998 has been registered against the very same accused persons under 143, 147, 148, 323 326 read with 149 IPC by the very same police station for an incident took place at Kotheri on the side of public road at 5 p.m. The learned counsel also took my attention to the fact that it has come out in evidence that it is PW1 the victim in this case has been cited as an eye witness in the other case and Ext.D1 the copy of FIR and FIS in that case would reveal that PW1 along with others had taken the victim in that crime to Mattannur Government hospital. If at all such an incident had taken place at 5 00 pm on the same day and he had talken the victim in that case to hospital, it is highly improbable to have this incident at the instance of the very same accused against PW1 within a span of half an hour.
21. Exts.D1 to 3 would prove that crime registered against the very same accused No.1 to 4 and 25 others, the revision petitioner as the first accused alleging attack and causing grievous hurt to Ravi at the public road at Kotheri. The Crl.R.P.109/2011 18 present incident is also alleged to have taken place about 25 meters away from Mattanur - Kannur public road i.e. Mattannur - Kannur public road is 25 metres south from the place of occurrence. So two incidents in such a short span of time at two different places coupled with the seizure of the weapon from the side of ration shop as has been spoken to by PW6 really creates the doubt with regard to the place of occurrence. So I find merit in the contention of the learned counsel for the revision petitioner that the place of occurrence could not be proved consistently by the prosecution.
22. The learned counsel for the revision petitioner would next contend that Exts.D1 to D3 documents produced from the side of the revision petitioner and which have been proved through the investigating officer, PW9, have not been properly appreciated by the courts below and it would make the whole prosecution case alleged in this case as highly improbable. He would contend that the incident in that case alleged to have been taken place at 5 pm on the same day at Crl.R.P.109/2011 19 the instance of the same accused and Ext.D1 FI statement, in that case also would show that the victim in that case has given a statement that he was taken to hospital by the witnesses who came to the scene of occurrence including PW1, one Ravi and another person. He would also contend that the Government hospital Kannur, is situated about 27 kilometers away from the alleged place of occurrence and it is impossible for PW1 to come back to the place of occurrence after taking the victim in crime No.297/1998 to the hospital to the place of occurrence in this case. He would also contend that PW1 during evidence before this Court was not prepared to admit that he was a witness in that crime and had taken the victim in that case to the hospital. He would also contend that the learned Sessions Judge in paragraph 19 of the judgment in Crl.Appeal had found that, may be anticipating the arguments as improbability of PW1 reaching the place of occurrence at 5 30 pm, after taking the injured to the hospital that PW1 denied that he is a witness in that crime. Ext.D2 Crl.R.P.109/2011 20 reveals that what he stated is false and he is witness No.7 in that crime and it is further found therein by the learned Sessions Judge that there is some merit in the argument of the learned counsel for the appellant. But the learned Sessions Judge has concluded that within the time of half an hour between the two incidents, PW1 might have returned from the hospital and further it is found that no evidence is available regarding the distance between the place of occurrence and hospital so as to arrive at a conclusion regarding his presence at the place of occurrence. So when such a lacuna is there with regard to the probability of the presence of PW1 at the place of occurrence within the time gap, the benefit of doubt in that regard ought to have been given to the accused.
23. It is also to be noted that PW2 in this case has been examined as PW9 in crime No.297/1998 and his evidence is that after the incident on seeing the police jeep, the accused persons ran away and he sent the injured to the hospital. Crl.R.P.109/2011 21 During his evidence before the court he stated that he had been talking to PW1, PW4 and CW2 and there upon the accused persons came and attacked PW1. If at all the very same accused had attacked the victim in crime No.297/1998 which is before half an hour and PW1 and others had taken the injured in that case to hospital, it is highly improbable that PW1 would again come there and will engage in a talk with PW2, PW4 and others. It also appears to be highly improbable that if on seeing the police jeep, the assailants ran away and escaped they will come back again within a short span of half an hour and attack PW1 and cause grievous hurt to him. I find merit in the contention of the learned counsel that the incident actually did not happen as revealed by the prosecution and the prosecution case is bad for suppression of material facts.
24. According to the learned counsel for the revision petitioner all the witnesses examined to prove the occurrence are the party men and though many houses are situated Crl.R.P.109/2011 22 nearby the place of occurrence and the incident occurred during evening at about 5 30 pm., none of the independent witnesses have been cited by the prosecution to prove the occurrence which, in the facts and circumstances, make the prosecution case highly unbelievable. He would also contend that the evidence of PW1, 2 and 4 with regard to the over act are contradictory and conflicting and it is highly unsafe to rely upon their evidence to find the accused guilty in a grievous crime especially when the other accused have been acquitted giving them benefit of doubt.
25. To ascertain the above aspect, it would be necessary to discuss the evidence of PW1, 2 and 4 with regard to the overt act. In the FIS the version of PW1 is that the first and fourth accused came with an iron bar in his hand and strike at his left leg and on several parts of his body and he fell down and thereafter the other accused kicked him and beat him with hand. It is also stated by him that one Kunjiraman and R.K.Damodaran had taken him to Mattannur hospital. But Crl.R.P.109/2011 23 during evidence he would state that the first and fourth accused beat him forcefully with iron bar on his left and right legs and he fell down. The other eight persons accompanied them, kicked him. During cross-examination, he admitted that he had not stated to anybody that the first accused beat on his left leg. Further he stated that he had not stated to anybody about the striking on the right leg. PW2 would depose that the first accused beat PW1 below his knee with a stick and at that time the fourth accused beat him at his right thigh and thereafter all the accused beat him and kicked him. PW4, Thilakan, the other eye witness, would state that the first accused beat PW1 below the knee with an iron bar and the fourth accused beat with iron stick above the right knee, there upon PW1 fell down. Thereafter the other accused kicked him and beat him with hand. During his cross- examination it was brought out that he has stated to the police that accused No. 1 and 4 beat PW1 with an iron stick at his left leg. PW9, the investigating officer, would state that Crl.R.P.109/2011 24 PW2 has not given a statement that the first accused beat PW1 below the left knee and the fourth accused beat at his thigh. Further he added that none of the witnesses stated about the assault on the right leg. It is also brought out that PW2 has stated that accused 1 and 4 with iron stick in their hands, beat at the left leg of PW1. So with regard to the overt act the prosecution has no consistent evidence. It has come out that none of the witnesses has stated to the police about any assault on the right thigh but finding that there is a contusion as per the wound certificate which was marked through PW8, it appears that such a development has been brought in during evidence.
26. It is further notable that even in the FI statement it has been stated by PW1 that he has been taken to hospital by Kunjiraman and R.K.Damodaran. During his evidence also he stated that he was taken to hospital by Kunjiraman Nambiar and Sasidharan. But they were not even cited as witnesses by the prosecution and PW2 and 4 are admittedly the Crl.R.P.109/2011 25 sympathizers of the same party. All these factors assumes importance since there is a crime registered against the very same accused persons in which the first accused herein is also the first accused therein alleging an incident of causing grievous hurt to another congress party worker. PW2 herein was a witness in the other case also and his statement given before the court in the other case has been marked as Ext.D3. The contradiction that has been brought out during the cross-examination before this court from that has been given during the examination in the other case also brought out. While examining before this court he would depose that he is in acquaintance with the accused and identified the accused during examination before the court. But during cross-examination, he denied to have given the statement while examining in CC 438/97 that he don't know the name of ten accused. But on perusing Ext.D3 it is seen that he could identify only accused Nos. 1 and 4 and with regard to the remaining accused, his evidence is that he had seen them Crl.R.P.109/2011 26 but does not know their names. Anyhow he stated that he is in acquaintance with the remaining accused also . So also non-examination of two witnesses who had taken PW1 admittedly to the hospital also creates suspicion since all the other witnesses, PW2 and 4, were the same party workers in which PW1 belongs. So on an evaluation of the facts and circumstances and the evidence adduced, it is really doubtful whether PW1 sustained injury due to the attack with MO1 by the first accused.
27. With regard to MO1 seized and produced by the accused also the learned counsel for the revision petitioner vehemently argued. According to him, the version of PW1 in Ext.P1 is that iron bar was in the hand of one of the persons. During evidence PWs 1, 2 and 4 deposed about the beating with iron rod both by first and fourth accused. Nobody says that first accused after beating on the left thigh handed over the iron bar to the fourth accused. Then how can one weapon be used simultaneously by both the accused. That also Crl.R.P.109/2011 27 creates doubt about the prosecution case regarding the attack of PW1 by first and fourth accused. With regard to the seizure of MO1 also, I have already stated that even the supporting scene mahazar witnesses would state about the seizure of weapon from the side of the ration shop whereas the place of occurrence is alleged to be in the mud road in front of the house of Gopalan master.
28. So from the above discussion it can safely be concluded that the prosecution failed to prove the place of occurrence and the presence of accused at the place and time as alleged by the prosecution and also the presence of PW1 at the place of occurrence at 5.30 pm beyond any reasonable doubt.
29. So on an evaluation of the totality of the facts and circumstances, I find that the conviction and sentence passed against the revision petitioner is based on improper appreciation of facts circumstance and evidence adduced and that has caused miscarriage of justice and hence is liable to be interfered with.
Crl.R.P.109/201128
30. In the result, revision petition allowed and the concurrent findings of guilt, conviction and sentence passed against the revision petitioner/first accused is hereby set aside. Bail bond executed by the revision petitioner stands cancelled and he is set at liberty.
Sd/-
M.R.ANITHA Judge Mrcs/10.6.