Kerala High Court
Preman vs State Of Kerala on 14 November, 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
WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934
Crl.Rev.Pet.No. 1514 of 2004 ( )
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CRA.268/1998 OF ADDL. SESSIONS (FAST TRACK NO-I) COURT, ALAPPUZHA
SC.43/1997 OF PRL. ASST. SESSIONS COURT, ALAPPUZHA
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PETITIONERS/APPELLANT/ACCUSED :
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1. PREMAN, AGED 32 YEARS, S/O. GOPALAN,
PATHINANCHILCHIRA HOUSE, NARAKATHARA, KAVALAM.
2. KUNJUMON, S/O. KUTTAPPAN,
AGED 38 YEARS, ANPATHILCHIRA, NARAKATHARA
KAVALAM.
3. SUNNY, S/O. VARGHESE, AGED 44 YEARS,
LAKSHAM VEEDU COLONY, NARAKATHARA, NILAMBEROOR.
4. BABU, S/O. CHANDRASEKHARAN,
AGED 43 YEARS, PATHINANCHILCHIRA HOUSE, NARAKATHARA
KAVALAM.
5. BABU @ RAVINDRAN, S/O. MADHAVAN,
AGED 39 YEARS, PANTHRANDILCHIRA VEEDU
LAKSHAM VEEDU COLONY, NARAKATHARA, NILAMBEROOR.
BY ADV. SRI.P.V.SURENDRANATH
RESPONDENT/RESPONDENT/COMPLAINANT :
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 14-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
S. SIRI JAGAN, J.
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Crl. Rev. Petition No.1514 of 2004
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Dated this the 14th day of November, 2012
O R D E R
The accused in Sessions Case No.43/1997 before the Principal Assistant Sessions Judge, Alleppey, are the petitioners in this Crl. R.P. They were tried for offences punishable under Sections 143, 144, 148, 307, 323, 324, 326 & 149 of the IPC. The prosecution case as obtaining in the judgment of the trial court is as follows:
"The resume of the prosecution case is as follows: On 24.05.1996, at about 9 a.m., the accused persons, on account of their previous enmity towards PWs 1 and 2, formed themselves into an unlawful assembly, armed with deadly weapons, in the property of one Mukkodi George at Narakathara in Neelamperoor Village, with the common object of causing the death of PW2 and in prosecution of the above common object, 1st accused after making an open declaration that PW2 should be cut into pieces, gave a cut injury on his right elbow with a sword, 2nd accused cut PW2 on his right shoulder with another sword, 3rd accused inflicted a cut injury on PW2 on his right leg below the knee with a hand axe, 4th accused cut him on his right leg above the knee by using a sword and 5th accused threw a granite stone on him which did not hit on him and all the above accused again inflicted several injuries on different parts of his body by using the above weapons and when PW1 tried to intervene, 1st accused gave a cut injury on the left side of his face by using a sword and accused Nos.2 and 3 kicked him down and thereafter all the accused escaped from the scene. PW2 was immediately taken to the Medical College Hospital, Kottayam and admitted there. PW1 was at first taken to the Changanassery Govt. Hospital and there PW5 examined him and issued Ext. P4 wound certificate. He was then referred to the Medical College Hospital, Kottayam and was admitted there. PW4 who was working as lecturer in Orthopedic at Crl. Rev. Petition No.1514 of 2004 -2- Medical College Hospital, Kottayam examined PW2 at 11.30 a.m. on 24.05.1996 and issued Ext. P2 would certificate. On getting information that the injured were admitted in the Medical College Hospital, Kottayam, PW13 the then Asst. S.I. Of Kainady police station went to that hospital and as PW2 was not conscious enough to give a statement, then he recorded Ext. P1 FI statement given by PW1 and also recorded Ext.P1(a) body note of PW1 and thereupon registered a case as Crime No.26/96 of the Kainady police station under Sections 307, 326, 324, 323 and 34 IPC against accused nos. 1 to 3 on preparing Ext. P12 FIR. PW14 the then C.I of Pulincunnu police station conducted the investigation and he inspected the place of occurrence and prepared Ext. P6 scene mahazar in the presence of PW6 and took into custody MO5 and MO6 from the place of occurrence. He gave Ext. P13 report on 26.05.1996 including accused nos. 4 and 5 also in the array of accused and changing sec.34 IPC and including secs. 143, 144, 148 and 149 IPC and he furnished the correct address of accused nos. 4 and 5 by sending Ext. P14 report. On 19.06.1996, PW14 arrested accused nos. 1 and 5 and on the basis of the information supplied by 1st accused, he recovered MO1 on 20.06.1996 at 12.50 p.m. on preparing Ext. P7 recovery mahazar in the presence of PW8 and he also arrested accused nos. 2, 3 and 4 and on the basis of the facts revealed by them MOs 2 to 4 were recovered and they were taken to custody on preparing Ext. P8 to P10 in the presence of PW9, PW6, the then Neelamperoor Village Officer prepared Ext. P5 plan on the request of PW14. PW14 completed the investigation and PW15 verified the records and filed a charge before the Judicial First Class Magistrate Court, Ramankary against these accused for the offence punishable under secs. 143, 147, 148, 307, 323, 324 and 326 r/w sec. 149 IPC."
The prosecution examined PWs 1 to 15 and marked Exts. P1 to P17 as well as MOs 1 to 6. The defence examined DW1 and marked Exts. D1 to D8(f). Accepting the evidence of the prosecution, the Assistant Sessions Judge convicted the petitioners under Sections 143, 144, 148, 323, 324 & 326 of Crl. Rev. Petition No.1514 of 2004 -3- the IPC. They were imposed with the following sentences:
All the accused were sentenced to undergo rigorous imprisonment for a term of six months each under Section 148, a term of 3 months each under Section 323, a term of one year each under Section 324 and a term of 3 years each under Section 326 IPC. The above terms were ordered to run concurrently. Against the conviction and sentence, the petitioners filed Crl. Appeal No.268/1998 before the Additional Sessions Judge, Fast Track Court-I, Alappuzha.
The Sessions Judge confirmed the conviction passed by the lower court on the petitioners under Sections 148, 323, 324 & 326 of the IPC and sentence imposed by the trial court under Sections 148, 323 & 324 of the IPC were confirmed. But the sentence passed by the trial court under Section 326 of the IPC was modified. Each of the petitioners were sentenced under Section 326 IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,000/-
each. Out of the said amount, Rs.10,000/- was directed to be paid to PW2 as compensation. There was also a default Crl. Rev. Petition No.1514 of 2004 -4- sentence of rigorous imprisonment for a further period of 10 months. The substantive sentences were directed to run concurrently. The petitioners are challenging the judgments of the courts below.
2. According to the petitioners, the prosecution evidence is totally unreliable for entering a conviction. The counsel for the petitioners submits that in the F.I. Statement filed by PW1, he refers to only petitioners 1 to 3. The petitioners 4 & 5 were added two days later, which itself would go to show the unreliability of the evidence of PW1. It is further submitted that there are contradictions between the evidence of the prosecution witnesses and their statements under Section 161 of the Cr.P.C. before the police, which were marked in evidence. It is further submitted that the appellate court did not consider the contradictions marked in evidence. It is further submitted that the ground of self defence was not properly adverted to by the courts below. It is submitted that even the doctor, who examined PWs 1 & 2, have testified to the effect that Crl. Rev. Petition No.1514 of 2004 -5- the injuries sustained by PWs 1 & 2 could have been occurred in a scuffle for getting hold of the weapons. According to the learned counsel for the petitioners, that is what happened in this case, which has been proved by the evidence of DW1. It is further submitted that Manoj and Shanoj also suffered injuries, in respect of which, there is another case, which shows that the versions of the defence is the more probable one. The petitioners rely on the decision of Babu Ram And Ors. v. State of Punjab [(2008) 3 SCC 709] on the question of considering the plea of self defence.
3. I have considered the rival contentions in detail.
4. At the outset, I must remind myself that while considering a revision petition, I cannot re-appreciate the evidence as in an appeal, but can only consider whether there is any perversity in appreciation of evidence by the courts below. In this case, PWs 1 & 2 are the injured persons. PW3 is a natural witness, who was available at the scene. They have given clear evidence as to the guilt of the Crl. Rev. Petition No.1514 of 2004 -6- petitioners. Of course, in the FI Statement, PW1 refers to only accused Nos.1 to 3. Probably that is because only accused Nos. 1 to 3 attacked him. But on the same day, PW2 had specifically stated before the doctor, who examined him, that five persons had attacked him. As such, I do not think that much significance can be attached to the fact that PW1 had mentioned only accused Nos.1 to 3. Of course in the evidence of PW3, the petitioners have marked two contradictions between the evidence given in court and the statement before the police under Section 161 of the Cr.P.C. But I do not find the same so as to disbelieve the whole prosecution case. On an overall reading of evidence of PWs 1 to 3, the same inspires confidence and I do not find any perversity in appreciation of evidence of PWs 1 to 3 by the courts below. On a reading of evidence of DW1, the same does not inspire confidence. Apparently on the basis of the opinion of the doctor that the injuries are also possible in a scuffle, DW1 has stated that the injuries suffered by PWs 1 & 2 happened in the scuffle for Crl. Rev. Petition No.1514 of 2004 -7- possession of the weapons. The counsel for the petitioners makes heavy weather of the fact that Manoj and Shanoj also suffered injuries. But it is pertinent to note that in the case in respect of the injuries to Manoj and Shanoj, PWs 1 & 2 are not the accused. I am of opinion that the over all evidence does not suggest any exercise of right of self defence by the petitioners. In the nature of the evidence available, the decision cited by the petitioners do not have any relevance. In the above circumstances, I do not find any merit in the contention of the petitioners and accordingly the Crl.R.P. is dismissed.
The counsel for the petitioners argues for leniency in the matter of punishment. The two courts have considered the matter and the appellate court has reduced the punishment taking a lenient view. Therefore, I am not inclined to interfere with the same also.
Sd/-
S. SIRI JAGAN
JUDGE
shg/ //True copy//
P.A. TO JUDGE