Kerala High Court
Hassan Koya vs State Of Kerala on 26 June, 2014
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 26TH DAY OF JUNE 2014/5TH ASHADHA, 1936
Crl.Rev.Pet.No. 1623 of 2002 ( )
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AGAINST THE JUDGMENT IN CRL.A 331/2000 of III ADDITIONAL SESSIONS COURT
(ADHOC), THRISSUR
AGAINST THE JUDGMENT IN SC 107/1998 of I ADDITIONAL ASSISTANT SESSIONS
COURT, THRISSUR
REVISION PETITIONER(S)/APPELLANT/ACCUSED::
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1. HASSAN KOYA,
S/O. BLANGAD THAZHATH KUNHIMON, EDAKKAZHIYUR DESOM
PUNNAYUR VILLAGE.
2. ILLIAS, S/O. THAZHATH MOIDUNNY,
THIRUVATHARA DESOM, MANATHALA VILLAGE.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
RESPONDENT(S)/RESPONDENT/COMPLAINANT::
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. REMA R.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-06-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sab
P.UBAID, J.
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Crl. R.P No. 1623 of 2002
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Dated this the 26th day of June, 2014.
O R D E R
The accused numbers 1 and 15 in S.C 107/1998 before the First Additional Assistant Sessions Judge, Thrissur are now before this court in revision, challenging the conviction and sentence against them under Sections 143, 147, 148, 341, 324, 326 read with 149 IPC. These two revision petitioners faced trial in the trail court along with 13 others. The incident alleged by the prosecution happened at about 9 a.m on 9.12.1992 at Thiruvathra, on the Chavakkad - Puthuponnani public road, in connection with a bundah declared by the Bharatiya Janata Party, in protest against the arrest of a prominent leader. The prosecution case is that when some political activists led by one Prakash compelled the shop owners to close down their shops, a group of persons came there in protest against the bundah, armed with weapons like sword, bricks etc, formed themselves into an unlawful assembly to attack the supporters of bundah, they restrained and assaulted the said Prakash and his associates, and inflicted serious and simple injuries on their body with the weapons carried by them, including a sword. In the said incident, the leader Prakash and his associates like Ajayan, Mohanan and Pradeep sustained Crl. R.P No. 1623 of 2002 2 injuries. On the first information statement given by the injured Prakash the Chavakkad police registered a crime, and after investigation the police submitted final report in the court of the learned Judicial First Class Magistrate, Chavakkad.
2. The revision petitioners and the accused pleaded not guilty to the charge framed against them by the learned Assistant Sessions Judge under Sections 143, 147, 148, 341, 324, 326 and 307 IPC read with 149 IPC and under Section 3 of the Explosive Substances Act. The prosecution examined 13 witnesses in the case and also marked Exts. P1 to P13 and P13 (A). When examined under Section 313 Cr.P.C also all the accused denied the incriminating circumstances and maintained a defence of total denial. The question of identity of the assailants was raised very much as the prominent issue during trail. The accused did not adduce any evidence in defence, in spite of opportunities granted by the trial court.
3. On an appreciation of the evidence, the trial court found the accused numbers 1 and 15 guilty under Sections 143, 147 and 148 IPC and also under Sections 341 and 326 IPC read with Section 149 IPC. The trail court found the accused numbers 2, 5, 7, 9, 10 and 13 not guilty, and they were acquitted by the trial court. Case against the accused who absconded during the trial process (Accused Crl. R.P No. 1623 of 2002 3 numbers 3,4,6,8,11,12 and 14) was split up and refiled. Thus the accused numbers 2,5,7,9,10 and 13 could obtain an order of acquittal on the benefit of doubt, but the trial court found actual and effective involvement of the accused numbers 1 and 15 with unidentified persons, as the persons who actually inflicted simple and serious injuries on the body of persons including PW1. On conviction, the accused numbers 1 and 15 were sentenced to undergo rigorous imprisonment for 1 month each under Section 143 IPC, rigorous imprisonment for six months each under Section 148 IPC, simple imprisonment for 1 month each under Section 341 IPC read with Section 149 IPC and rigorous imprisonment for 2 years and a fine of Rs. 5,000/- under Section 326 IPC read with Section 149 IPC.
4. Aggrieved by the conviction and sentence, the accused numbers 1 and 15 approached the court of Sessions, Thrissur with Cr. A 331/2000. In appeal the learned Additional Sessions Judge (Adhoc-I) confirmed the conviction and sentence, and accordingly dismissed the criminal appeal. Now the accused numbers 1 and 15 are before this court, challenging the legality and propriety of the conviction and sentence against them.
5. On hearing both sides and on a perusal of the case records including the medical documents and the occular evidence given by the Crl. R.P No. 1623 of 2002 4 incident witnesses, I find that the prosecution has well proved the offences alleged against the accused. Of course there was a charge under section 307 IPC, and also under Section 3 of the Explosive Substances Act. The trial court could not find anything to substantiate such a charge. However conviction was made under Section 326 IPC as a lesser offence, finding that very grievous injuries were inflicted by these two accused on the body of PW1 with sword and bricks as alleged by the prosecution.
6. I find no illegality or irregularity or impropriety in the conviction made by the courts below against the revision petitioners, or in the sentence imposed. Of course, it is true that the first informant was not examined during trial. It is also true that the weapon of offence is not before the court. But all such shortcomings can be ignored in view of the other strong evidence adduced by the prosecution. The first information statement given by the injured Prakash was marked during trial by the investigating officer, and it has come out in evidence that the weapon of offence with which the revision petitioners inflicted serious injuries on the body of Ajayan could not be seized in spite of earnest efforts. That the weapon could not be seized or recovered is not a sufficient ground for acquittal when the case stands well proved otherwise on facts, and when the medical Crl. R.P No. 1623 of 2002 5 evidence also satisfies the court that the injuries sustained by the aggrieved are possible with the weapon alleged by the prosecution.
7. As stated earlier, the question of identity was raised throughout as a prominent issue by the defence. PW1 is in fact the person who sustained very serious injuries in the alleged incident. Of course, PW5 has not satisfactorily implicated the accused number
15. But he is definite in evidence that serious injuries on the body of PW1 were inflicted by the first accused Hassan Koya. PW1 is also definite and consistent in evidence that he was attacked by Hassan Koya and Illias, and injuries were inflicted on his body by these two persons. During trial, PW1 well identified these two accused, and it was specifically recorded in the deposition by the learned trial judge. Of course it is true that test identification parade was not conducted during investigation. PW1 is definite in evidence that he knows the two accused very well as persons of the locality, and PW5 also says that the accused numbers 1 and 15 are familiar to him. When such persons are arraigned as accused, and when such persons are also well identified by the familiar persons during trail, it does not matter that a test identification parade was not conducted during investigation. The question of identification during trial and during investigation comes only when the accused are not persons familiar to Crl. R.P No. 1623 of 2002 6 the witnesses. Even in such cases test identification is required only in cases where the victim or the injured had only a glimpse of the assailants. In cases where the victim had sufficient time and opportunity to see the assailant and to have his face and physical features imprinted in his mind, there is no question of conducting test identification parade to prove identity. In this case, there is no such factual situation. The two important witnesses including the witness who sustained very serious injuries in the alleged incident are definite that these two revision petitioners are familiar to them as persons of the locality. PW1 well identified the two persons during trial and he affirmed that it was a first accused Hassan Koya who inflicted serious injuries with a sword, and it was the 15th accused Illias who inflicted injuries on his face with bricks. When such definite occular evidence is there, proving the alleged incident of assault and infliction of injuries, it is quite immaterial that the weapon is not before the court, and that test identification parade was not conducted during investigation.
8. Now let us come to the injuries sustained by PW1. Those injuries are recorded in the discharge certificate issued by PW6. The medical evidence given by PW6 read with the contents of the discharge certificate, is that, besides other serious injuries, PW1 Ajayan had Crl. R.P No. 1623 of 2002 7 sustained undisplayed fracture of his left tibia, fracture of his right ulna, closed head injury with compound communited depressed fracture, and he had also right lower limb monoparesis. The severe nature of the grievous injuries sustained by PW1 stands well proved by the medical evidence. When such a person who sustained very serious injuries in the alleged incident is before the court with his grievance, no court can ignore him, and his grievances cannot go uncared or neglected on the ground that the person who gave F1 statement is not examined by the prosecution. Non examination of the person who gave F1 statement will be fatal to the prosecution in a case were he is the only injured and he is practically the only aggrieved. Here, in this case there are four persons as aggrieved or injured. Just because 1 or 2 among them could not be examined by the prosecution for reasons known or not known, the grievance of the others including the one who sustained very serious and grievous injuries cannot be ignored by the court, and his evidence cannot be rejected by the court, saying that he can be considered and his grievances can be looked in to only when the others are examined by the prosecution. I find that the case on facts stands well proved by the definite and consistent evidence given by PW1 who sustained very serious and grievous injuries in the alleged incident, supported to an extent by PW5. Of course, PW5 did Crl. R.P No. 1623 of 2002 8 not specifically identify the accused No. 15, but he well identified the first accused. Of course it is true that the defence could bring out some inconsistencies or short comings in the evidence of PW1. But I find that such inconsistencies and infirmities are not of a high degree, or that strong to create doubt in the mind of the court regarding the truth of the prosecution case. I find no reason to disbelieve PW1, and I find that his evidence is well acceptable for a conviction, despite the fact that some other injured are not examined, and the weapon of offence could not be seized during investigation.
9. As stated above, the evidence of the other witnesses is formal in this case. The main evidence on facts is that of PW1 and PW5 which I have already analyzed and discussed. In fact in a revision brought against conviction such meticulous examination of evidence on facts is not necessary. However in the interest of justice I went through the whole evidence to find whether the conviction assailed in this case is sustainable. I find on facts that the case of the prosecution stands well proved. Accordingly I find that the conviction is only to be confirmed in revision also.
10. The learned counsel for the revision petitioners finally made a request for some modification in sentence. My conscience does not allow such a modification because here is a person before Crl. R.P No. 1623 of 2002 9 me, with a genuine grievance that he was mercilessly and brutally attacked by a group of persons in a helpless situation, and they inflicted very serious injuries on his body including serious head injury. Evidence proves that PW1 had sustained not less than three fractures, and as a consequence he had even monoparesis. In such a factual situation, it would be really inappropriate and unjust to reduce the sentence, or to modify the sentence. I find no reason or scope for interference in the sentence also.
11. In view of the findings above, this revision is liable to be dismissed as merit less.
In the result, this revision petition is dismissed, confirming the conviction and sentence against the two revision petitioners.
Sd/-
P.UBAID, JUDGE sab TRUE COPY PA TO JUDGE