Kerala High Court
Mahesh vs State Of Kerala on 17 December, 2012
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 2326 of 2004 (A)
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CRA.176/2003 of ADL.D.C. & MACT,THODUPUZHA
CC.56/2001 of J.M.F.C.-I(FOREST OFFENCES),TPA
REVISION PETITIONER(S)/APPELLANTS/ACCUSED::
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1. MAHESH, S/O. RAJAPPAN,
KANDATHINKARAYIL HOUSE, VELLAMTHANAM KARA
UDUMBANOOR VILLAGE.
2. RUGMINI, W/O. RAJAPPAN,
KANDATHINKARAYIL HOUSE, VELLAMTHANAM KARA
UDUMBANNOOR VILLAGE.
3. JOMON, S/O. RAJAPPAN OF -DO-,
KANDATHINKARAYIL HOUSE, VELLAMTHANAM KARA
UDUMBANOOR VILLAGE.
4. ROOPESH, S/O. RAJAPPAN,
KANDATHINKARAYIL HOUSE, VELLAMTHANAM KARA
UDUMBANNOOR VILLAGE.
5. ANISH, S/O. RAJAPPAN,
KANDATHINKARAYIL HOUSE, VELLAMTHANAM KARA
UDUMBANNOOR VILLAGE.
BY ADVS.SRI.C.K.VIDYASAGAR
SRI.P.CHANDY JOSEPH
COMPLAINANT(S)/RESPONDENT/COMPLAINANT::
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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S.SIRI JAGAN, J.
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Crl.R.P. No. 2326 of 2004
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Dated this the 17th day of December, 2012
O R D E R
The petitioners are the accused in Calendar Case No.56 of 2001 before the Judicial Magistrate of the 1st Class, Thodupuzha. They were prosecuted for offences punishable under sections 143, 147, 148, 324, 326, 506(ii) and 342 read with section 149 of the Indian Penal Code. The prosecution case as stated in the judgment of the Magistrate is as follows:
"Due to some previous enmity towards CW1 on 15.10.2000 at 4 p.m. the accused formed themselves into an unlawful assembly and in furtherance of their common object first accused beat CW1 on his right leg and second accused inflicted cut injury on his head with a sickle. Thereafter the accused took CW1 towards an Anjili tree and tied him there. The first accused beat CW1 on his right hand causing a fracture and second accused gave the sickle to 3rd accused who inflicted injuries with the blunt part of the sickle. The 5th accused caught on the hand of CW1 and twisted it. The place of occurrence is on the property of the accused situated in the 9th ward of Udumbannoor panhayat. CW1 gave a statement before the police and on the basis of that CW12 registered Crime No.190/2000. CW13 conducted the investigation and laid the charge before court."
2. The prosecution examined PWs.1 to PW11 and marked Exhibits P1 to P3 as well as M.O.1 and M.O.2. The second accused examined herself as DW1. After considering the evidence adduced, Crl.R.P. No. 2326 of 2004 2 the Magistrate convicted the petitioners and sentenced them as under:
"The accused are sentenced to undergo R.I. for 3 months each for the offence u/s 143 IPC, R.I. for 6 months each for the offence u/s 342 IPC, R.I. for 6 months each for the offence u/s 324, 148 IPC and R.I. for 2 years and to pay fine of Rs.3000/- each for the offence u/s 326 IPC. No separate sentence is awarded for the offence u/s 147 IPC and 506 (ii) IPC. Fine amount is realised an amount of Rs.10,000/- is ordered to be paid to PW1 Mohanan as compensation u/s 357(1) Cr.P.C. In default of payment of fine R.I. for 2 months sentence of imprisonment shall run concurrently. Set off is allowed to A1, A3 and A4 u/s 428 of Cr.P.C."
The petitioners filed Criminal Appeal No.176 of 2003 before the Additional Sessions Judge, Thodupuzha. The Additional Sessions Judge confirmed the conviction but modified the sentence as follows:
"The appellants are sentenced to undergo S.I. for 3 months each u/s 143 IPC, 6 months each u/s 342 IPC, 6 months u/s 324 & 148 IPC and S.I for one year each and to pay a fine of Rs.3000/- each in default ot S.I. for 2 months u/s 326 IPC. The PW1 is entitled to get a sum of Rs.10,000/- as compensation u/s 357(1) Cr.P.C. The sentence will run concurrently. The appellants are acquitted of the offence u/s 506(II) IPC u/s 386(b)(i) Cr.P.C."
The petitioners are challenging the judgments of the Courts below.
3. The contention of the petitioners is that there is no reliable evidence to prove the prosecution case against the petitioners. According to the petitioners, the wounds on the body of Crl.R.P. No. 2326 of 2004 3 PW1 themselves are proof enough of the fact that the incident occurred not as the prosecution would want the court to believe. The counsel for the petitioners submits that the injuries caused to PW1 are very minor which could not have been so simple if 5 persons in concert attacked PW1 with a sickle and very strong wooden sticks. On the other hand, the incident occurred as suggested by the accused. He further contends that actually PW1 was the assailant and PW1 brought the sickle and used the same to cause a cut injury on the head of the 4th petitioner. The fact that the 4th petitioner sustained injury is clearly admitted by the prosecution. That being so, the petitioners were in the minimum entitled to the benefit of doubt is the contention raised. It is pointed out that the defence case has been proved through DW1, who is the 2nd petitioner herein, who gave evidence to the effect that the 4th petitioner sustained injury in the incident and it was PW1 who was the aggressor. It is further submitted that, in any event, the prosecution against the 5th petitioner was totally unsustainable, Crl.R.P. No. 2326 of 2004 4 insofar as, at the relevant time, he was only 16 years old as is evident from the Police charge itself. That being so, he should have been dealt with only under the Juvenile Justice (Care and Protection of Children) Act, 2000, and not under the provisions of Code of Criminal Procedure.
4. The learned Public Prosecutor would contend that the prosecution has proved the prosecution case beyond any reasonable doubt. It is submitted that all the witnesses uniformly supported the prosecution case, including PW3, who did not fully support the prosecution case and therefore was declared hostile. It is submitted that there was no evidence to prove any overt act on the part of PW1 to cause any injury on the 4th petitioner. In fact, DW1, who examined herself as a witness, also did not say that PW1 attacked the 4th petitioner. That itself proves that the petitioners were the assailants and in the process of attacking PW1, inadvertently, one of the blows by the sickle fell on the head of the 4th petitioner himself, is the contention raised. It is further pointed out that the Crl.R.P. No. 2326 of 2004 5 sickle was recovered from the house of DW1, which also shows that the sickle was brought by her and was used for attacking PW1. But it is admitted before me by the the learned Public Prosecutor that at the time of the occurrence, the 5th petitioner was only 16 years old.
5. I have considered the rival contentions in detail.
6. All the prosecution witnesses gave evidence in support of the prosecution case. They were elaborately cross examined. Barring minor discrepancies, the petitioners could not cause any dent on the veracity of their evidence. All the witnesses including PW3, who turned hostile, supported the prosecution case in all material particulars. The same together with the seizure of the sickle from the house of the 2nd petitioner proves the case of the prosecution beyond any reasonable doubt.
7. I do not find any merit in the contention of the learned counsel for the petitioners that the nature of the wounds suffered by PW1 would disprove the prosecution case. The contention of the Crl.R.P. No. 2326 of 2004 6 counsel for the petitioners is that if the cut was actually made with the sickle by the 2nd petitioner, the wound would have been much deeper. But from the evidence of PW1, I find that the second petitioner tried to cut PW1 with the sickle several times and he tried to evade and run away and one of the cuts fell on his head. That is certainly an explanation for the wound being not deeper. When PW1 was trying avoid the blows by the 2nd petitioner, she may not have been able to land a proper cut on PW1. Apart from that, the wounds noted in the body of PW1 are as follows:
"1. Contusion left arm.
2. Complaints of pain all over the body.
3. Bone deep laceration of scalp.
4. Laceration of first web space.
5. Fracture both bones of right forearm."
PW1 gave specific evidence in respect of each of the wounds suffered by him. This is supported by medical evidence as well. The case set up by the petitioners to the effect that PW1 attacked the petitioners is disproved by the evidence of the second petitioner herself who gave evidence as DW1. She did not care to say anything regarding the same during the chief examination. But the Crl.R.P. No. 2326 of 2004 7 chief examination was confined only to the question as to whether the house from where the sickle was recovered was her's or not. But the prosecution chose to cross examine her on the question of the injury caused to third petitioner also. She stated that the 4th petitioner suffered an injury on his head caused by the sickle. But she did not state that, that wound was inflicted by PW1, which is the case of the petitioners. When the second petitioner herself does not support the case that PW1 caused any injury to the 4th petitioner, I do not think that, at this point of time, the petitioners can succeeded in establishing a case that PW1 was the aggressor in the incident. From the evidence adduced, I have no doubt in my mind that the petitioners were guilty of offences charged against them. As such, I am not inclined to interfere with the conviction entered by the courts below against petitioners 1 to 4. I am also not inclined to interfere with the punishment imposed as modified by the appellate court except that on the 5th petitioner.
8. It is a different question as regards the 5th petitioner is Crl.R.P. No. 2326 of 2004 8 concerned. Even in the final report, it is specifically stated that the 5th petitioner was only 16 years at the relevant time. That being so, he was a juvenile, at that time and therefore he sould have been dealt with only as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. Therefore, the prosecution under the Code of Criminal Proceedure against the 5th petitioner is not sustainable. He should have been proceeded against only under the Juvenile Justice (Care and Protection of Children) Act, 2000. Accordingly, the prosecution against the 5th petitioner is set aside, without prejudice to the right of the prosecution to proceed against him in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
The Criminal Revision Petition is disposed of as above.
S.SIRI JAGAN, JUDGE.
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