Kerala High Court
Gopi vs State Of on 9 April, 2013
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933
Crl.Rev.Pet.No. 1457 of 2002 ( )
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CRA.NO.342/2001 of ADDL.SESSIONS COURT,ALAPPUZHA.
SC.NO.45/1999 of ASSISTANT SESSIONS COURT, CHERTHALA
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REVISION PETITIONER(S)/APPELLANTS/ACCUSED:
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1. GOPI, AGED 28, SON OF PADMANABHAN,
PUTHUPPADI VEEDU, WARD NO.2, THANNEERMUKKOM
PANCHAYATH.
2. ANIL KUMAR, AGED 32, SON OF BHASKARAN,
KULATHUKKADU VEEDU, WARD NO.6, THANNEERMUKKOM
PANCHAYATH.
BY ADV. SRI.S.SANAL KUMAR
RESPONDENT/STATE/ COMPLAINANT
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STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.SREEJITH.V.S
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 02-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
Petitioner's counsel absent. No representation. Dismissed for non-
prosecution.
02-02-2012 SD/- N.K.BALAKRISHNAN,JUDGE
/TRUE COPY/
P.S.TO.JUDGE
sts
P. D. RAJAN, J.
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Crl. R.P. No. 1457 of 2002
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Dated this the 9th day of April, 2013
JUDGMENT
Revision petitioners were convicted by the trial court U/s. 143, 147, 148, 324 and 307 r/w section 149 IPC and sentenced to undergo rigorous imprisonment for different periods and also directed to pay fine under the aforesaid sections. The substantive sentences were ordered to run concurrently. An appeal filed was partly allowed by the Additional Sessions Court, Alappuzha confirming the conviction and sentence passed U/s. 324 and 307 IPC and set aside the conviction and sentence U/s. 143, 147and 148 IPC. Challenging the said judgment this criminal revision petition has been preferred.
2. The prosecution case is that on 20.10.1997 at 4.30 p.m. the accused along with four identifiable persons formed themselves into an unlawful assembly carrying deadly weapons like sword stick and iron bars near the Thanneermukkom School junction and inflicted injuries on Crl.R.P. 1457/2002 2 PW1 cutting with sword and beating with iron rodes. When PW1 flee from the place of occurance, they chased him and inflicted injury on the forearm. Immediately PW1 took shelter in the nearby house of Smt. Mayamani. PW1 sustained serious injuries and he was removed to hospital. On the basis of information, Mohamma Police registered Crime No. 236/97 under sections 143, 147, 148, 324 and 307 r/w section 149 IPC. After investigation, the C.I of police laid charge before the Judicial First Class Magistrate Court - II, Cherthala, from where it was committed to Sessions Court for trial and disposal.
3. In the trial court prosecution examined PW1 to PW10 and marked Exts. P1 to Ext.P12 and Mos.1 to 4 in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning under section 313 Cr.P.C. The trial court convicted the accused under sections 143, 147, 148, 324 and 307 r/w section 149 IPC. Against that order they preferred appeal before the Sessions Court in which their conviction and sentence under sections 143, 147 and 148 were set aside Crl.R.P. 1457/2002 3 and confirmed their conviction and sentence under sections 324 and 307 IPC. Aggrieved by that, the accused preferred this revision petition.
4. The learned counsel appearing for the revision petitioners contented that the petitioners are innocent and harsh sentence was awarded against them. The evidence of PW2 is not believable, since he is a sympathizer of a political party and his evidence is an interested one. The evidence of PW1 is inconsistent with the evidence of PW2 and the actual incident was suppressed by them and falsely foisted a case against the revision petitioners. There was no attempt to commit murder and no offence under section 307 IPC was proved against them in the trial court. The Trial Court, without considering and appreciating the legal principles and guidelines, convicted the accused for a serious offence. The injuries in Exts. P2 and P3 are not insufficient to prove the offence under section 307 IPC. There are several lapses from side of PW10 to find out the actual persons involved in the aforesaid crime and suppressing material evidence, he implicated the revision Crl.R.P. 1457/2002 4 petitioners in a serious offence. Therefore, the revision petitioners are entitled to get the benefit of doubt.
5. The learned Public Prosecutor strongly resisted the above contention and contented that the offence under section 307 IPC was already proved and established in this case. The injuries noted in Exts.P2 and P3 are sufficient to attract Section 307 IPC. There is no reason to disbelieve the oral testimony of PWs. 1 and 2. PW1 is the injured and no incriminating circumstances are brought out by the defence counsel in cross-examination to disbelieve his evidence. The incident has occurred in open day light. PW2, a pedestrian at the place of occurrence, witnessed the incident and his evidence is believable. He has deposed about the incident upon his direct knowledge. The medical evidence is corroborating the prosecution case. The lower appellate court after considering the evidence set aside the conviction and sentence under sections 143, 147 and 148 and cofirmed the conviction under Sections 324 and 307 IPC. The prosecution established offences under Section 324 and 307 and therefore, the conviction and sentence passed against Crl.R.P. 1457/2002 5 the revision petitioners are only to be confirmed.
6. Now the question that arises for consideration is whether there is any illegality or irregularity in the finding recorded by the courts below? At the outset I have considered whether any offence under section 307 IPC is committed ? In order to constitute an offence under section 307 IPC, two elements are necessary. First, the intention or knowledge to commit murder, mens rea. Secondly, the actual act of trying to commit murder, actus reus. (relied Sumer Sinbh Umedsinh Rajput @ Sumersinh V. State of Gujarat (AIR 2008 SC 904). Thus it must have necessary both mens rea and actus reus. For this, I have perused the oral and documentary evidence in this case. Evidence of PW1 shows that on 20.10.97 at 4.30 p.m., when he reached at Anjilichuvadu Junction near the house of one Kunnel Narayanan, A1 and A2 and other four persons came near him. A1 and A2 were carrying sword stick and iron rod and others were carrying sword stick. At that time A2 said to "kill him". By this time, they chased PW1 with weapon. On seeing this, he ran away and fell down. A1 cut him with a Crl.R.P. 1457/2002 6 sword stick and he sustained injuries on the backside of the left thigh. A2 beat with an iron rod below his left knee. When he again ran towards eastern side, the accused chased him with weapon and he jumped into the nearby "thodu". They surrounded him immediately. When he entered into the road, A2 cut him with a sword stick in the left hand. A1 beat him with an iron rod at right side of the face and on the left hand. Again A2 beat him with an iron rod. He ran towards the northern side and got shelter at the house of Sri.Mathai. Several peoples gathered there to saw the incident. PW2 came there and removed him to Government Hospital, Cherthala. From there he was referred to Medical College Hospital, Alappuzha, where he gave Ext.P1 statement to the police. He identified MO1 sword stick, MO2 iron rod, MO3 sword stick and MO4 iorn rode.
7. PW2 supported the evidence of PW1 and he stated that he saw the incident when he came after participating in the school anniversary festival. PW2 identified A1 and A2 and the weapons used by them. PW2 Crl.R.P. 1457/2002 7 deposed that A2 assaulted PW1 with an iron rode, as a result, PW1 sustained injuries. Again A1 assaulted with an iorn rod on his face. Corresponding injury was noticed by doctors, who examined PW1, when he was admitted in the hospital for treatment. This portion of evidence of PWs. 1 and 2 shows that PW1 was assaulted with weapon on the face.
8. The injured was removed to the Government Hospital, Cherthala by PW2. Dr. Kamarudeen who was examined as PW3 noted his injuries and issued P2 wound certificate. The injuries are :
"1) Incised wound back of right thigh in its middle 20 cm x 6 cm. extends up to femur.
2) Cut injury ulnar side of left forearm in its distal part. It is 6.3 cm wide.
There is fracture of dental end of left ulna.
3) Abrasion outer aspect of right shoulder 5 cm x 0.5 cm.
4) Incised wound 2 in number on the dorsal aspect of left shoulder each one measuring approximately 6 cm. x 05 cm.
5) Incised wound right molar eminence 7 cm. x 2 cm Crl.R.P. 1457/2002 8
6) Incised wound anterior aspect of right thigh middle 10 cm. x 0.5 cm."
9. Again PW1 was referred to Medical College Hospital, Alappuzha where PW4, Dr. R.P Unnithan, Asst. Professor of Surgery, examined him and issued Ext P3 certificate. His evidence shows that on 20.10.1997 at 6 p.m. he examined PW1 and he noted that the general condition of PW1 was satisfactory. The following injuries were noted in Ext.P3 wound certificate:-
"1) Incised injury back of left thigh 12 cm x cutting hamstring muscle horizontally placed.
2) Incised injury (L) shoulder 2 cm x 0.5 cm x 0.5 cm.
3) Incised injury(R) maxillary region 3 cm x 0.5 cm x 0.5 cm.
4) Multiple linear incised wound of varying length x skin deep at (R) arm (R) scapular region (L) scapular region and left arm.
5) Contusion left scapular region. Crl.R.P. 1457/2002 9
6) Contusion left temporal region
7) Incised wound at border of (L) arm 2 cm x 0.5. x 0.5 cm."
10. I have perused the injuries noted in Exts.P2 and P3. The finding recorded in Exts. P2 and P3 are inconsistent and contradictory. PW3 noted the fracture without X-ray examination but PW4 did not find any fracture after detailed examination. Therefore, I can say that Ext.P2 certificate was issued only after local examination which is not admissible to prove fracture. In this context I rely the decision of the Apex Court in Makan Jivan and others V State of Gujrat, AIR 1971 SC 1797 and the evidence of PW4 who conducted the detailed examination in the Medical College Hospital, Alappuzha is admissible.
11. In this context I have considered whether the evidence of PW1 and PW2 is believable. According to PW1 he sustained serious injuries in the incident and dangerous weapon like sword stick and iron rod were used, as a result he sustained injuries and those injuries were noted by doctors at the time of examination. Immediately after the Crl.R.P. 1457/2002 10 incident PW1 gave Ext. P1 statement to the police. The weapons were recovered on the basis of the information given by the accused. MO1 was identified by PW1, but there are some discrepancies in the evidence of PW2. He deposed that PW1 sustained cut injury on the right thigh, but such an injnury was not entered in the wound certificate issued from the Medical College Hospital or in the Taluk Hospital. That is not a reason to discard the entire evidence of PW2, but portion of evidence is admissible.
12. In Jai Narain Mishra and others V. The State of Bihar, AIR 1972 SC 1764, the Supreme Court held thus :
"The evidence shows that he was responsible for the injury on the head which he had given with a Farsa. That injury is described Dr. Mishra as a lacerated wound 2 = " x = scalp deep on the left side of the head on the parietal region. It is also described as a simple injury. It is obvious that though a Farsa had been used the sharp edge of the Farsa may not have been used. Crl.R.P. 1457/2002 11 But since this injury was caused by an instrument which used as a weapon of offence, is likely to cause death the offence would be one Under Section 324 IPC. The conviction, therefore of Mandeo is changed to one Under Section 324 IPC and his sentence is reduced to two years rigorous imprisonment."
The doctors PW3 and PW4 opined that all injuries are simple in nature. It is clear from the evidence of PW1 and PW2 that the accused used weapons like sword stick and iron rode but the injuries are minor. Considering the nature of injuries the mens rea and actus reus of 307 IPC was not proved by in this case, on the other hand the only offence under sections 324 IPC will be attracted. For this, I rely on a decision of the Supreme Court in Rekha Mandal & others V. The State of Bihar [1968 (1) SCWR 14]. In that case, the accused person attracked the victim with divers weapons and inflicted 17 injuries. But, the accumulative effect of those injuries was not dangerous to life. Hence, the apex court held that the conviction under section 324 IPC would Crl.R.P. 1457/2002 12 be proper. In the decision of Tameshwar Sahi and others v. State of Uttar Pradesh [AIR 1976 SC 59], the victim sustained one grievous injury and one simple injury. But, the victim could not specify which injury was caused by the accused held as a matter of abundant caution. The conviction was only under section 324 IPC.
13. In order to attract an offence under section 324 IPC, the prosecution has to prove that the accused voluntarily caused hurt to the victim. They did so intentionally or with the knowledge that would cause hurt to him. The evidence of PW1 shows that the 1st accused assaulted PW1 with Mos. 1 and 4 weapons and caused hurt to him and PW1 was admitted in the Medical College Hospital and Taluk Hospital. They did the act intentionally with knowledge that the assault with Mos. 1 and 4 would cause hurt to him. The act of the accused was without any provocation or anything done in the right of private defence of their body or property. The evidence of PW2 also shows that accused 1 and 2 caused hurt to PW1. He sustained no grievous injuries. Therefore, I am of the opinion that section Crl.R.P. 1457/2002 13 324 IPC is attracted in this case.
14. The accused have any common intention or any common object in committing the offence is a relevant aspect in this context. The first appellate court acquitted the accused under sections 143, 147 and 148 IPC and there was no finding with regard to their common intention or common object. It is clear from the evidence of PWs.1 and 2 that more than 5 persons were included in the attack. The first appellate court disbelieved the version for the prosecution case and acquitted the accused under the above mentioned sections. No appeal has been filed by the State with regard to that point. It is clear from the evidence of PW1 and PW2 that the accused attracked PW1 with a common intention. Having regard to the nature of the offence even though the first appellate court set aside the finding of offence under section 149 IPC, no finding was recorded with regard to the common intention U/s. 34 IPC shared by them. In a decision reported in Shiva Sankara Pandey and others v. State of Bihar [(2002) 7 SCC 229] the Supreme Court held that the absence of specific charge Crl.R.P. 1457/2002 14 under section 34 IPC does not cause any prejudice to the accused.
15. There was no laches noticed in the investigation. Immediately after getting information, PW9 proceeded to the Medical College Hospital and recorded the statement of PW1, which was marked as Ext. P1. On the basis of that he registered crime No. 236/1997 under sections 143, 148, 149, 324, 307 IPC. Ext.P8 is the FIR. The investigation was conducted by PW10, the Circle Inspector of Police. PW5 admitted that he was present at the time of preparing Ext.P4 by PW10. He admitted the signature in Ext.P4. PW6 admitted his presence at the time of recovery of MO4 dress. He admitted the signature in Ext.P5. Even though PW5 and PW6 were cross-examinationed by the defence counsel, nothing has been brought out to discredit their evidence. PW7 was also present at the time of recovery of weapon. He admitted that he signed in Ext.P6 mahazar. PW8 is Village Officer who prepared Ext.P7 cite plan in connection with Crime No. 236/1997. PW10 Circle Inspector prepared Ext. P4 mahazar. He also prepared search memo and visited the Crl.R.P. 1457/2002 15 house of accused 1 and 2. Ext. P9 is the search memo and Ext. P10 is the search list. He admitted that Ext. P5 was prepared at Medical College Hospital, Alappuzha. On 21.10.1997 accused 1 and 2 were arrested. On the basis of information given by the 1st accused, weapon which was used by the accused for committing the offence was recovered. After completing the investigation, he laid charge before the court. In cross-examination he admitted that the other accused persons involved in the crime were not identified.
16. From the above discussion it is found that prosecution proved offence punishable U/s. 324 r/w 34 IPC alone. Therefore the conviction and sentence U/s. 307 IPC is to be set aside. The counsel appearing for the revision petitioners submits the incident was occurred 15 years back and both parties are living in harmony, and they seek the leniency. Apex court in the decision of Madanlal Ramachandra Daga V. State of Maharashtra, (AIR 1968 SC 1267) held that if the court thinks that a leniency can be shown on facts of the case, it may impose a lighter Crl.R.P. 1457/2002 16 sentence. In Rabri Ghela Jadav v. State of Bombay AIR 1960 SC 748 held that leniency can also be done by the appellate court or revisional court. Accepting the above principle laid down by the apex court, I am of the opinion that petitioners are entitled to get leniency in sentence.
17. In the result, the conviction and sentence passed U/s. 307 IPC is set aside. Revision petitioners are convicted U/s. 324 r/w 34 IPC. Both parties filed Crl.M.A. No.2725/2013, in which they stated that they have settled the case between them and living in harmony and no grievance against the revision petitioners. Moreover they paid the defacto complainant hospital expenses and bystander expenses of Rs. 40,000/- each (Fourty thousand each) total Rs. 80,000/- (Eighty thousand only). The defacto complainant present before court and admitted that he received the amount and no enmity towards the petitioners. The Sub Inspector of Police, Muhamma Police Station and Public Prosecutor verified the affidavit and the identity of the injured and the revision petitioners. When both parties are living in harmony and no further grievance Crl.R.P. 1457/2002 17 against to them the revision petitioners are sentenced as follows :
(a) Revision petitioners are sentenced to imprisonment for the period they have already undergone.
(b) They are also sentence to pay a fine of Rs.
5,000/- each U/s. 324 r/w 34 IPC, in default payment of fine simple imprisonment for three months.
(c) Petitioners are directed to appear in the trial court within 30 days from today to pay the fine amount.
P. D. RAJAN, JUDGE.
jm/nkm/acd.
Crl.R.P. 1457/2002 18
P. D. RAJAN, J.
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Crl. R.P. No. 1457 of 2002
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JUDGMENT