Kerala High Court
Kanaran vs State Of Kerala To Be Rep. By on 16 July, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 16TH DAY OF JULY 2018 / 25TH ASHADHA, 1940
Crl.Rev.Pet.No. 2922 of 2006
AGAINST THE JUDGMENT IN CRA 335/2000 of ADDL.SESSIONS COURT
(ADHOC)-III, THALASSERY
AGAINST THE JUDGMENT IN CC 471/1998 of ADDL.C.J.M.,THALASSERY
REVISION PETITIONER(S)/APPELLANTS/ACCUSED:
1 KANARAN, S/O. KUNHIRAMAN,
PUNATHIL KANDY, PATTIAM AMSOM, MUTHIYANGA DESOM,
THALASSERY.
2 SASI, S/O. KUNHAMAN,
PATTIAM AMSOM, MUTHIYANGA DESOM, THALASSERY.
BY ADVS.SRI.K.S.MADHUSOODANAN
SRI.T.V.JAYAKUMAR NAMBOODIRI
SRI.T.N.SURESH
RESPONDENT(S)/COMPLAINANT & FORMAL PARTY::
1. STATE OF KERALA TO BE REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
2. SUB INSPECTOR OF POLICE, PANOOR.
BY PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
16-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.UBAID, J.
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Crl.R.P No.2922 of 2006
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Dated this the 16th July, 2018
ORDER
The revision petitioners herein challenge the conviction and sentence against them under Sections 326 and 341 of the Indian Penal Code in C.C. No. 471 of 1998 of the Additional Chief Judicial Magistrate Court, Thalassery. They faced prosecution in the court below on the allegation that at about 9.30 p.m. on 28.03.1998, at the pathway leading to the house of one Amer Nath at Pattiyam while Amer Nath and his wife were returning from the hospital after treatment, the accused who were hiding at the side of the pathway being armed with weapons, attacked the said Amer Nath, and inflicted simple and grievous injuries on his body with the weapons like bill hook. The police registered the crime on the First Information Statement given by the said Amer Nath and after investigation, the police submitted final report in court under Sections 341, 323, 324 and 326 read with Section 34 IPC.
2. The two accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed Crl.R.P No.2922 of 2006 2 against them. The prosecution examined seven witnesses, including the victim and his wife, and proved Exts.P1 to P4 documents in the trial court.
3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence that the complainant probably sustained injuries in a fall. The accused did not adduce any oral evidence in defence, but Ext.D1 was marked on their side.
4. On an appreciation of the evidence, the trial court found the accused not guilty under Sections 323 and 324 IPC, but they were found guilty under Sections 341 and 326 IPC. On conviction, they were sentenced to undergo rigorous imprisonment for two years each under Section 326 IPC, and to pay a fine of Rs. 1,000/- each under Section 341 IPC.
5. Aggrieved by the judgment of conviction dated 31.10.2000, the accused approached the Court of Session, Thalassery, with Crl.A No. 335 of 2000. In appeal, the learned Additional Sessions Judge (Adhoc-III), Thalassery, Crl.R.P No.2922 of 2006 3 confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the two accused are before this Court in revision, challenging the legality and propriety of the conviction and sentence.
6. When the revision petition came up for hearing, the learned counsel for the revision petitioners submitted that the prosecution has not adduced evidence proving confirmation of one of the fractures alleged in the case, that the prosecution has failed to examine the investigating officer, and this has resulted in prejudice to the accused.
7. On the other hand, the learned Public Prosecutor submitted that the material witnesses have given evidence regarding the weapon of offence used by the accused, and despite efforts, the weapons could not be seized by the police.
8. Of the seven witnesses examined in the trial court, PW1 is an independent witness examined by the prosecution. This witness did not support the prosecution. PW2 is the victim of offence, and PW3 is his wife. They are the material eye witnesses. PW4 is the doctor who Crl.R.P No.2922 of 2006 4 examined PW1, and issued the Ext.P2 wound certificate. The evidence of PW4 is that PW2 had sustained a lacerated wound of about 10 cms length cutting skin and the lateral aspect of dorsum of left foot involving compound fracture of both bones of the right leg above the ankle, and multiple laceration on the lateral aspect of right leg at the lower third. Another injury noted is suspected fracture of lower end of radius and ulna. Of course, this fracture was not confirmed by scientific examination. The doctor's evidence shows that fracture of the lower end of radius and ulna was noticed by him clinically, and the result of the examination like x-ray examination, is not available. However, the fracture of both bones on the right leg was confirmed, and what is recorded in the wound certificate is the confirmed fracture of the two bones. This is sufficient to constitute the offence punishable under Section 326 IPC.
9. The defence argued that no incised injury was noted by the doctor. However, the doctor stated that whether incised injury would be caused with a sharp edged weapon depends upon the sharpness of the weapon, and Crl.R.P No.2922 of 2006 5 also the force with which it is used. Lacerated wound involving fracture is possible definitely with a bill hook. If it is a sharp edged one, it may cause incised wound. That no incised wound was noted by the doctor on the body of PW2 will not show that such a weapon was not used by the assailants. Another aspect is that no blood was seen at the scene of incident by the investigating officer. The wound certificate does not show that there was profuse bleeding from the injuries. Anyway, that alone cannot be a ground to discard the prosecution evidence, if it is otherwise believable and acceptable.
10. PW1 and PW2 are definite and consistent regarding the incident of assault alleged by the prosecution. Both the witnesses affirmed in evidence that while they were returning from the hospital, they were attacked by the two accused on the way to the house, and both stated that the two accused were hiding at the side of the pathway. When they reached the spot of incident, the two accused immediately attacked PW2, the first accused cut on his leg with a bill hook, and the second accused also attacked him Crl.R.P No.2922 of 2006 6 with such a weapon. Both the witnesses are definite that the injuries were inflicted by the two accused with a bill hook, and their ocular evidence is supported by the medical evidence given by PW4. The defence could not bring out anything to discredit the evidence of PW1 or PW2, and I do not find any reason to disbelieve them, or to reject their evidence. It is pertinent to note that no question was put to the witnesses by the defence counsel regarding the nature or the description of the weapons given by the witnesses when examined in chief. This means that this particular evidence given by the witnesses regarding the weapon stands unchallenged. In such a situation, it is quite immaterial that the weapon could not be seized during investigation. The witnesses are definite regarding the weapon used by the assailants, and also the injuries sustained in the incident. They are fully corroborated by PW4 regarding the nature of injuries and the consequences of injuries.
11. It is true that the Police Officer who investigated the case was not examined during trial. Non-examination of Crl.R.P No.2922 of 2006 7 the investigating officer vitiates the prosecution in cases where such non-examination will cause some sort of prejudice to the accused. Here the only prejudice must be regarding the weapon of offence. As already stated, the defence need not ask any question to the material witnesses regarding the weapon of offence, when they gave clear evidence regarding nature of the weapons used by the assailants. The Doctor's evidence also shows that such injuries are possible with a weapon stated by the material witnesses. I find that no prejudice was in fact caused to the accused by the non-examination of the investigating officer in this case. There is a clear ocular evidence given by PW2 and PW3 supported by medical evidence given by PW4. The two material witnesses have proved the incident of assault including the weapon used by the assailants and the Doctor's medical evidence shows the nature of the injuries, the possibilities, the weapon used etc. The medical evidence corroborates the evidence given by the material witnesses. I find that the prosecution has well proved the offence punishable under Section 326 I.P.C Even though Crl.R.P No.2922 of 2006 8 the fracture clinically noticed by the Doctor on the hand of the victim could not be confirmed by investigation, the compound fracture of both bones of the right leg was confirmed by the Doctor on examination. A clear case of Section 326 I.P.C is well proved in this case. Thus, I find that the two accused were rightly convicted by the courts below under Section 326 I.P.C.
12. On an examination of the entire evidence, I find nothing for a conviction under Section 341 I.P.C. There is nothing definite to show that the PW2 was wrongfully restrained by the two accused. But evidence shows is that just when PW1 and PW2 reached the scene, the two accused attacked PW1 and inflicted injuries on his body. There is nothing to show that she was wrongfully restrained by them. Thus, find nothing for a conviction under Section 341 I.P.C.
13. Now the question of sentence. The alleged incident of assault happened in March, 1998. 20 years have elapsed since the date of incident. The 1st accused was aged 45 years and the 2nd accused was aged 32 years at Crl.R.P No.2922 of 2006 9 the time of incident. The 1 st accused must be now aged around 65 years. It appears that there was some earlier dispute between the parties, and this probably led to the alleged incident of assault. On a consideration of the various aspects including the long lapse of years and the age and circumstance of the accused, I feel that rigorous imprisonment for one year and a direction to pay adequate amount of compensation to the victim will do justice to both parties.
In the result, this revision petition is allowed in part. The revision petitioners are not found guilty of the offence under Section 341 I.P.C and they are acquitted of the said offence in revision. Accordingly, the conviction and sentence against them under Section 341 I.P.C in C.C 471/1998 of the court below will stand set aside, but the conviction against them under Section 326 I.P.C with the aid of Section 34 I.P.C is confirmed. However, the sentence will stand modified as follows:
a. The sentence imposed by the court below under Section 326 I.P.C will stand modified and reduced to rigorous Crl.R.P No.2922 of 2006 10 imprisonment for one year.
b. In lieu of such modification and reduction, the revision petitioners/ accused are directed under Section 357 (4) Cr.P.C to pay a compensation of b920,000/- each to PW2.
c. In case of default in making payment of compensation, the two accused will have to undergo a default sentence of rigorous imprisonment for six months each.
d. The revision petitioners will surrender before the trial court, within three weeks from this date to serve out the modified sentence and to make payment of the compensation voluntarily on failure of which steps shall be taken by the trial court to enforce the modified sentence and realise the amount of compensation or enforce the default sentence.
Sd/-
P.UBAID JUDGE ds/ma /True copy/ P.S to Judge