Kerala High Court
Thekkepurath Nazar vs The State Of Kerala on 10 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934
Crl.Rev.Pet.No. 1095 of 2002 ( )
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AGAINST THE JUDGMENT IN Crl.Appeal No.166/1996 of DISTRICT & SESSIONS
COURT, MANJERI DATED 10-07-2002
AGAINST THE JUDGMENT IN SC.104/1995 of ASST.SESSIONS COURT, TIRUR
DATED 30-11-1996
REVISION PETITIONER(S)/APPELLANTS 1 & 4/ ACCUSED 1 & 7:
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1. THEKKEPURATH NAZAR, S/O.ABU, AYIROOR
AMSOM AND DESOM, PONNANI, MALAPPURAM DISTRICT
2. THEKKOOR HAMSA KOYA S/O.ASSAINAR,
AYIROOR, PALAPETTY, PONNANI
MALAPPURAM DISTRICT
BY ADVS.SRI.P.VIJAYA BHANU
SRI.M.REVIKRISHNAN
RESPONDENTS/STATE AND COMPLAINANT:
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1. THE STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
KOCHI-31
2. THE CIRCLE INSPECTOR OF POLICE,
PONNANI, MALAPPURAM DISTRICT.
BY PUBLIC PROSECUTOR SMT.MADHUBEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.KEMAL PASHA, J.
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Crl.R.P.No.1095 of 2002 B
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Dated this the 7th day of March, 2013
O R D E R
~ ~ ~ ~ ~ ~ Petitioners are A1 and A7 in S.C.No.104/1995 of the Assistant Sessions Court, Tirur. They, along with other 8 accused, were charge sheeted for the offences punishable under Sections 143,147, 148, 307 and 324 read with Section 149 IPC. The trial court found A1, A3, A6 and A7 guilty of the offences under Sections 324 and 326 IPC read with Section 34 IPC, convicted and sentenced them thereunder, and acquitted all the other accused who faced trial. A1, A3, A6 and A7 challenged their conviction and sentence before the Sessions Court, Manjeri, through Criminal Appeal No.166/1996. During the pendency of the appeal, A3 died and the charges against him abated. The learned Sessions Judge acquitted A6, and confirmed the conviction and sentence passed by the trial court against A1 Crl.RP.1095/2002 : 2 : and A7, who are the petitioners herein.
2. When this criminal revision petition came up for hearing, the learned counsel for the petitioners produced a copy of the death certificate of A7, which shows that A7 has died on 08-09-2010. Therefore, this criminal revision petition, as far as A7 is concerned, has become infructuous as the charges against him also have abated. Now, the conviction and sentence as far as A1 alone has to be considered in this criminal revision petition.
3. The learned counsel for the first petitioner, A1, (hereinafter referred to as 'the petitioner') has argued that the trial court took the aid of Section 34 IPC to convict the petitioner for the offence under Section 326 IPC. According to the learned counsel for the petitioner, based on the allegations against the petitioner, the offence that can be alleged against him is, at the most, one under Section 324 IPC. It is also argued that even though A1 was known to PW3 even prior to the incident, PW3 has not cared to give Crl.RP.1095/2002 : 3 : the name of A1 to the Doctor at the time when PW19 Doctor examined him, and therefore, the name of A1 does not find a place in Ext.P14 wound certificate. Further, according to the learned counsel for the petitioner, PW3 has not stated before PW19 that he was beaten by A1 with a cycle chain, whereas, the history and alleged cause to injury noted in Ext.P14 is that "cut with sword at 5.30 p.m. at Kandu Bazaar by identifiable person". The petitioner is seeking benefit of doubt in his favour.
4. On a perusal of the entire evidence and records in this case, and on hearing the submissions of the learned counsel for the petitioner, it has come out that the incident had started only at the instance of the present petitioner. On 16-02-1994, PW3 obtained a lift in the autorickshaw, which was being driven by the petitioner in a return trip. When he had offered the normal fare to be paid for return trip, the petitioner got furious and demanded an amount of `20/- thereby claiming full charges. As PW3 was not Crl.RP.1095/2002 : 4 : prepared to heed to the demand, there occurred a wordy altercation between them, which invited the interference of PW2, who is none other than the brother of PW3, and other persons in the neighbourhood. After exerting a threat, the petitioner went away from the spot with his autorickshaw. By about 5.30 p.m., when PW2, PW3 and others were playing volley ball in a ground, near Kandu Bazaar, it is alleged that A1, along with A3, A6, A7 and the other accused, came over there by autorickshaws. The allegation is that A7 took a sword from the autorickshaw and inflicted a cut on PW2, which resulted in an injury. The petitioner took MO1 motor cycle chain from his waist and beat PW3 on his head with MO1. It is alleged that A3 attacked PW3 with a stick. A7 again attacked PW2 with the sword, and inflicted a cut on his leg. It is alleged that the other accused persons beat and stamped PW2 and PW3. As PW2 had sustained grievous hurt, which required immediate expert medical attention, he was taken to the Specialists Hospital, Crl.RP.1095/2002 : 5 : Ernakulam, where he had undergone treatment. PW3 was at first taken to the hospital at Puthenpally, from where he was referred to the Medical College Hospital, Thrissur.
5. It seems that the appellate court has carefully appreciated the evidence adduced by the prosecution and has confirmed the conviction and sentence on A1 and A7, after acquitting A6. By the time when the appeal came up for hearing, A3 had died.
6. It is true that any unlawful assembly was not proved. In fact, the names of the other accused, who were present and who had allegedly participated in the incident, were also mentioned before the trial court. As the other accused persons were not identified, the trial court took the aid of Section 34 IPC to enter into a conviction. Even if some of the accused could not be identified, when their presence and participation were proved, an offence of unlawful assembly, rioting etc. will certainly lie [See Haradhan Das Vs. State of West Bengal [(2013) 2 SCC Crl.RP.1095/2002 : 6 : 197 ]. Whatever it be, the trial court has rightly taken the assistance of Section 34 IPC to find that there was common intention. Even though Section 34 IPC was not incorporated by the investigating officer in the final report, there is nothing wrong in taking the aid of Section 34 IPC, provided common intention can be gathered. It has to be noted that the petitioner had vanished from the scene after the incident, which culminated in a wordy altercation regarding the autorickshaw hire charges, after exerting a threat that he would meet PW3. It was after that, he along with the other accused, who were also autorickshaw drivers, approached PW2 and PW3 and started the attack by about 5.30 p.m. The conduct of A1 in approaching PW2 and PW3 with the other accused persons clearly reveals the common intention on the part of A1 and A7 and, therefore, the courts below are perfectly justified in taking the aid of Section 34 IPC to enter into a conviction.
7. On going through the evidence of PW2, PW3 and Crl.RP.1095/2002 : 7 : PW4, it is evident that their versions regarding the incident are consistent. The versions of PW2 stand fully corroborated by the versions of PW3 and PW4. Even PW5 has deposed regarding the incident; but, at the same time, he could not identify A6 and that was the reason why the appellate court has acquitted A6. In all other material particulars, the evidence of PW5 also corroborates the versions of the other occurrence witnesses. The clear case of PW2, PW3 and PW7 is that it was A7, who made use of the sword to attack PW2. PW3 has no case that he was attacked by A7. The definite version of PW3 and other occurrence witnesses is that it was the present petitioner, who beat PW3 on his head with MO1 motor cycle chain. It seems that MO1 was recovered at the instance of the petitioner on the basis of Ext.P9(a) statement allegedly made by the petitioner. At the same time, Ext.P9(a) does not contain the ownership of concealment and, therefore, the appellate court has rightly rejected the admission of Crl.RP.1095/2002 : 8 : Ext.P9(a) under Section 27 of the Indian Evidence Act. No doubt, the conduct of the petitioner and his knowledge with regard to the concealment of MO1, which ultimately resulted in the recovery of MO1, is admissible under Section 8 of the Indian Evidence Act. The trial court has convicted the petitioner for the offence under Section 326 read with Section 34 IPC and also for the offence under Section 324 IPC. Ext.P14 wound certificate and evidence of PW19 Doctor coupled with the evidence of PW2, PW3 and PW4 clearly reveal that the petitioner had attacked PW3 with MO1 cycle chain, which was used as a weapon of offence and, therefore, the offence under Section 324 IPC is independently sustainable as against the petitioner. Regarding Section 326 IPC, it does not matter whether A3 and A7, who were roped in with the aid of Section 34 IPC, are no more. Even though the specific overt acts with which Section 326 IPC was incorporated were proved as against A7, the evidence clearly proved that the said acts were Crl.RP.1095/2002 : 9 : committed by A7 in furtherance of the common intention shared by A1. Matters being so, the courts below cannot be found fault with in convicting the petitioner for the offence under Section 326 IPC also with the aid of Section 34 IPC. From the discussions made above, it can be safely concluded that there is no illegality, irregularity, or impropriety in the conviction passed by the appellate court.
8. Regarding sentence, the learned counsel for the petitioner has strenuously contended that the petitioner is roped in to the offence under Section 326 IPC with the aid of Section 34 IPC and in fact, the overt acts, which constitute the said offence, were committed by A7 alone and, therefore, the petitioner is entitled to leniency in the question of sentence as far as the said offence is concerned, especially when A7, who committed the acts, is no more. In fact, if the facts and circumstances of this case are considered, it cannot be said that the petitioner is entitled to leniency, because of the fact that it was he who had started Crl.RP.1095/2002 : 10 : all the incidents in this case. When imposing sentence, the court has to consider not only the crime; but also the criminal. It is a fact that all these long years have elapsed after the incident, and the petitioner was only 22 years of age at the time of incident. At the same time, it has to be considered that even during that period, PW2 had to be taken to the Specialists Hospital, Ernakulam for better treatment and had to undergo a series of surgical interventions and still he is partially and permanently disabled. This Court is of the view that the substantive sentence of rigorous imprisonment of five years imposed by both the courts below for the offence under Section 326 IPC can be reduced to rigorous imprisonment for two years with a liability to pay an amount of `25,000/- to PW2 as compensation under Section 357(3) Cr.P.C. The sentence imposed under Section 324 IPC does not call for any interference.
In the result, this Criminal Revision Petition is allowed Crl.RP.1095/2002 : 11 : in part by maintaining the conviction and by modifying the sentence as follows:-
The substantive sentence of rigorous imprisonment of five years imposed by both the courts below for the offence under Section 326 IPC is reduced to rigorous imprisonment for two years with a liability to pay an amount of `25,000/- to PW2 within one month from today, as compensation under Section 357(3) Cr.P.C, in default, to undergo rigorous imprisonment for one more year. The substantive sentence of imprisonments shall run concurrently. If the amount of compensation is deposited or recovered, the same shall be paid to PW2. The petitioner shall surrender before the trial court on 08-04-2013 to suffer the sentence. The petitioner is entitled to set off, of the period, if any, undergone by him in custody in connection with the investigation, inquiry, and trial of this case under Section 428 Cr.P.C.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/08/03