Kerala High Court
Lawrance @ Babu S/O.Mathew vs State Of Kerala Represented By on 20 June, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY,THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939
Crl.Rev.Pet.No. 800 of 2002 (L)
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AGAINST THE JUDGMENT IN CRA 44/2000 of ADDITIONAL SESSIONS COURT, NORTH
PARAVUR DATED 20.6.2002
AGAINST THE ORDER/JUDGMENT IN SC 32/1996 of ADDITIONAL ASSISTANT SESSIONS
COURT, NORTH PARAVUR DATED 15.2.2000
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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1. LAWRANCE @ BABU S/O.MATHEW,
MATTATHIPARAMBIL,CHENNOOR KARA,KADAMAKUDY VILLAGE.
2. ANTONY @ ANTI,S/O.MATHEW,DO.DO.
3. RAJESH S/O.JOSEPH,DO.DO.
4. MATHEW @ SHIBU S/O.JOSEPH,DO.DO.
5. RAJENDRAN S/O.SREENIVASAN,ANJILIKKAL
VEDU,CHIRAKKAKOM KARA,VARAPUZHA VILLAGE
BY ADVS.SRI.A.K.SAITHU MOHAMMED
SRI.C.M.SURESH BABU
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA REPRESENTED BY
CIRCLE INSPECTOR OF POLICE,NORTH PARUR,REPRESENTED BY THE
PUBLIC PROSECUTOR,HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
10-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SHG/
K.P. JYOTHINDRANATH, J.
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Crl.R.P.No.800 of 2002
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Dated this the 10th day of April, 2017
O R D E R
This criminal revision petition is filed against the concurrent finding of guilt by the Additional Assistant Sessions Judge, North Paravur in SC 32/1996 which was confirmed in Crl.A.No.44/2000 by the Additional Sessions Judge, North Paravur. The original conviction by the trial court was under Sections 143, 147, 148, 452, 323, 324, 326 r/w. Section 149 of IPC. In the Crl. Appeal referred above, the conviction and sentence passed by the trial court except one under Section 452 of IPC was confirmed. The trial court convicted the accused Nos. 1 to 5 under Sections 143, 147, 452, 323, 324, 326 r/w. Section 149 of IPC and accused No.1 and 2 also convicted under Section 148 of IPC and sentenced them to undergo simple imprisonment for three months under Section 143 of IPC, six months under Section 147 of IPC, 3 years and to pay a fine of Rs.2,000/- each with default simple imprisonment for six months under Section Crl.R.P.No.800 of 2002 2 326 of IPC. Accused No.1 and 2 are also sentenced to undergo simple imprisonment for one year under Section 148 of IPC. No separate sentence awarded under Section 323 and 324 of IPC.
2. When the criminal revision petition came up for hearing, the learned counsel submitted before me that even though the revisional jurisdiction of this court is limited, when illegality or perversity is seen committed by the courts below, an interference can be made. It is the submission of the learned counsel that a bare perusal of the appellate judgment itself will show that the courts below committed illegality and the judgments are perverse. To emphasis this point, the learned counsel drew my attention to the end portion of paragraph 9 of the appellate court judgment. It is submitted before me that therein the appellate court made a specific finding that the appellants not committed an offence of house trespass. It is submitted that corollary is that if the entry is disbelieved, the infliction of injuries by trespassing into the house also will have to be Crl.R.P.No.800 of 2002 3 disbelieved i.e. when the place of incident changes, then the total version presented before the court also will collapse. This aspect is not considered by the appellate court and as such by disbelieving the trespass, the court cannot convict the accused by saying that the injuries would have been inflicted by the accused from a shifted place. Thus, it can be only said that the judgment is perverse. Secondly the learned counsel submitted before me that the settled legal position is that the case and counter case has to be tried by the same court simultaneously and pass judgment in succession. In this case there were two cases; one is the main case and a counter case. It is apparent and evident that the scene mahazar in both the crimes is one and the same, which is an indication that the other one is nothing but a counter case. Even though it is the duty of the prosecution to see that both the cases are tried by the same court, as it is seen that the prosecution has not taken steps to get it tried by the same court, a Crl.M.P.3212/1997 in C.C. 95/1996 was filed by the revision petitioners herein to Crl.R.P.No.800 of 2002 4 get the counter case committed to the Sessions Court. As the prosecution opposed the same, it was dismissed by a non- speaking order. Surely, the said order is not before this court. The learned counsel made available the certified copy of the same for perusal. On perusal it is found that the order was passed on 19.9.1997. It is the submission that on the above two grounds itself this court can enter into the arena of re-appreciation of the evidence and once started to re-appreciate evidence all the powers of an appellate court will be available for this court to dispose of the matter.
3. I have heard the learned Public Prosecutor, who submitted before me that C.C.95/1996 ended in acquittal. It became final. When it ended in acquittal and became final, the revision petitioners herein cannot say that they got prejudiced. If they were actually prejudiced, they should have taken the matter as per law before a higher court. When the witnesses herein were found innocent, now accused cannot turn and say that the case should have been tried by the same court and dispose of the same. Regarding Crl.R.P.No.800 of 2002 5 the acquittal under Section 452 of IPC, the learned Public Prosecutor submitted before me that the evidence was appreciated by appellate court and came to a conclusion that the ingredients of offence under Section 452 of IPC is not made out. But regarding other offences, there is concurrent finding. As such, this court need not venture for re-appreciation of the evidence where there is concurrent finding. Hence it is the submission of the learned Public Prosecutor that there is no merit in the criminal revision petition, hence it has to be dismissed.
4. After hearing both the counsel, I perused the appellate court judgment wherein it is categorically stated that the place of incident is not inside the house. Under such circumstances, the evidence has to be perused. Now the evidence in this case is as follows:
5. PW1 is the injured. He deposed that on 6.11.1994 at about 7.15 p.m. the accused who are residing at the neighbourhood as well as at Chirakkakam came to the courtyard of the house and enquired whether Diji was Crl.R.P.No.800 of 2002 6 present. It is the evidence that he answered that Diji is not therein and thereafter he closed the door. They demanded to open the door and entered from behind i.e. through the door on the kitchen side. It is the specific case that it was opened by kicking and he further deposed that the accused 3 & 4 pushed him down and at that time accused No.2 beat him on his left chin. When his wife intervened, the first accused caught hold on her hand and pulled her. When his mother came and intervened 5th accused pushed her away. Then, accused went out by opening the front door. He further deposed that his son was sent out. Thereafter his brother and children came. The second accused beat Xavier with an iron rod. The second accused beat twice. The first accused also beat Xavier and accused Nos.3 & 4 hit him with hand. They also attacked his brother and children as well as one Prince and Antony. They also sustained injuries. Antony is his grandfather's grandson. He further deposed that in the hands of accused No.1, 2 & 6 there were stick and he (PW1)sustained injures. Witness further deposed Crl.R.P.No.800 of 2002 7 that, from the courtyard he sustained injuries. They went away through the pathway on the eastern side. The weapons are also taken away. It is also deposed that one Jose was present therein and he took the persons to the hospital. On the next day F.I. Statement was recorded and earlier there was a mass petition against the accused and that was the motive. There was electric light inside and outside the house. During cross examination, witness deposed that, in the hands of accused No.1, 2 and 6 there was weapon. It was also stated that the said aspect is not seen stated while F.I. Statement was given. During cross examination witness deposed that he was inside the house till his brother came. It is also deposed on a specific question that whether the accused was inside when his brother Xavier came, his answer was that 'No'. and he further deposed that in his name there is a counter case. During cross examination "( g5X_f\ 1 NaDW 5 Ufx dID_5f{ 5O_U?_f5^Ia %?_:na. Cricket bat f5^Im %?_:na" '?_:na" Crl.R.P.No.800 of 2002 8
Ix_gAWI_:na .Ka IyEg\o (ecasef\ counter case &O_efile f:Oq_xaKDme(Q) counter case &gC^ .Km %y_O_\o.eUx^Ma] police station crime 124/94 HOV case %f\o H_B{af? gIx_W )I^O_xaKDm (Q) Number %y_O_\o (A))I^O_xaKae1 NaDW 5 Ufx dID_5Z Ix_gAxm IyUbV XVA^V &VaIdD_O_W 5_?KD^O_ %y_O^gN^ (Q) %y_O_\o^O_xaKa."
6. PW2 deposed that PW1 is his father's younger brother's son and he further deposed that he also sustained injuries in the incident and his evidence is that while he was sitting in his house, son of PW1 came to his house and requested to come and take his father to the hospital. He also deposed that when they reached therein the accused was seen on the courtyard and his further evidence is that when he entered therein Antony came with an iron rod and Babu beat him on his rib area and also on the back side. He also deposed that accused No.3 & 4 beat him on the back of the chest. His further evidence is that his lower jaw was fractured and he lost six teeth. PW3 also sustained injuries. Crl.R.P.No.800 of 2002 9 He deposed that he know the accused. The incident was on 6.11.1994 at about 7 p.m. and the incident was on the courtyard of PW1. The incident occurred while he was in the house of Koduveli Joy and the distance in between the house of Joy and PW1 is only 50 mtr. The evidence is that while they were talking, PW2 was speeding towards the house and CW 4 & 5 were also following and he heard the cry and he went therein and saw that accused No.2 beating PW2 on the head and face area. He tried to stop it by holding the iron rod. Then accused No.6 beat him with an iron rod and thereafter he fell down. PW4 is the son of PW2. He deposed that the incident was in front of the house of PW1. He also deposed that Jinson came to his house and informed that some people are attacking and thereon went to the house of PW1. His case is that accused No.1 and 2 also attacked him.
7. PW5 is the doctor who issued the wound certificate of PW1, which is marked as Ext.P2 and the injury was pain on face and head, abrasion over left side of upper Crl.R.P.No.800 of 2002 10 lip. The alleged cause of injury is assault by M.M. Antony and M.M. Babu, Shibu, Rajesh and other 4 to 5 identifiable persons at about 7.30 p.m. on 6.11.1994 near Chennoor church. He deposed that the injury noted can be caused by beating with a rod. On the same day he examined K.R.Xavier and the wound certificate is marked as Ext.P3. The injury noted therein is lacerated wound over right parietal region 6 x 2 cm., lacerated wound over right lower lip 2 x 1 cm, swelling with abrasion left elbow loose right 4 teeth lost lower lip 1st and 2nd both also lost compound fracture mandible, at symphys is extending obliquently to right body of mandible, x-ray skull shows lenior fracture parietal region, x-ray left hand shows fracture 2nd phalus left thump. He was admitted under department of neuro surgery, open reduction and fracture mandible under general anesthesia. He further deposed that patient was discharged on 21.11.1994. Doctor deposed that the injury can be caused by beating with iron rod. On the same day doctor examined one K.J. Antony and issued Ext.P4. There Crl.R.P.No.800 of 2002 11 was swelling with pain on right hand, pain left knee and patient was admitted under the department of Orthopedic and discharged on 11.11.1994 and alleged cause of injury is same as in Ext.P3. Witness further deposed that it would cause by beating with iron rod. On the very same day doctor examined one Roy K.Xavier and issued Ext.P5. The injury noted is that pain right shoulder, lacerated wound left parietal region 1 x 0.5 cm., abrasion right little toe. Patient was discharged on 11.11.1994 and the alleged cause of injury as same as in Ext.P3. On the very same day he examined one Prince X. Xavier also and the certificate is marked as Ext.P6. There was pain on right elbow, swelling left frontal region and he was discharged on 8.11.1994. History of alleged cause of injury was as in Ext.P3. PW6 is an Assistant Surgeon who had examined Mary Varghese. There was no external injury. He also treated one Alphonsa Xavier and there was also no external injury and witness issued Ext.P8.
8. PW8 is an attestor to the mahazar which is Crl.R.P.No.800 of 2002 12 marked as Ext.P10. PW9 deposed that PW2 is his father and his evidence is that at about 7 p.m. on 6.11.94 Jinson came to his house and told him that one Babu Madathiparambil as well as others trespassed in to his house and beat his father. On hearing the same he went to the house of PW2 and his evidence is that when they went to the house A2 beat PW2 on the head area. PW10 deposed that he had not seen the incident. PW11 deposed that PW1 is her son and she was inside the house and she deposed that she was also pushed down. She further deposed that Antony beat PW1 on the cheek area and Babu pushed away Alphonsa when she intervened. She further deposed that the 5th accused kicked her and Jinson was sent to the house of PW2. PW12 is the wife of PW1. She also supported the prosecution. PW13 deposed that while PW1 was sitting on the veranda, the accused came and enquired about Diji and PW1 went inside and closed the door. Then, the accused entered through the kitchen door by force. PW14 is the Head Constable who recorded the F.I. Statement. PW15 is the person who Crl.R.P.No.800 of 2002 13 conducted the investigation and prepared the scene mahazar. PW16 is the person who filed the charge in this case.
9. In this case it can be seen that Ex.P10 is the scene mahazar. The said scene mahazar is a joint scene mahazar prepared in crime Nos.123/1994 and 124/1994. It is apparent and evident that there are two crimes. The specific case of the revision petitioners is that their case was not tried by the same court and as such it adversely affected the appreciation of evidence in this case. In appreciating the evidence, it can be seen that there are actually, as per the prosecution case, two sets of incidents i.e. the first part wherein the accused came and enquired about Diji and when PW1 closed the door, the entry from behind and thereafter the second part of the incident is that PW2 and others came on the information gathered from Jinson. On the first part, the accused got no business to go to the house of PW1. It will be a trespass. The moment they are entered to the courtyard without the permission of Crl.R.P.No.800 of 2002 14 PW1 and in annoyance of PW1 it will be a criminal trespass. As per evidence, there is assault also. The second part seems to be that to oust this criminal trespassers PW2 and others came there. The appellate court found that there is no trespass inside the house or there is no incident as alleged from inside the house. Surely as per the evidence of PWs 1 and 2, the second part of the incident took place from the courtyard. In appreciating the evidence in a case like this, when the counter case is not tried by the same court in appreciating the materials, the court may be handicapped as the version of prosecution case will not be before it. But that itself will not entitle the accused in this case for an acquittal. It is evident from the evidence that the accused party also sustained injuries which is an indication that the witnesses are also equipped with some weapons. The defence stand is that injured in this case were also equipped with iron rod and cricket bat. Case of prosecution is that PW2 and others got private defence which will come under Section 97 Part I of IPC i.e. the Crl.R.P.No.800 of 2002 15 private defence to save the body of any other person. But at the very same time, when the genesis of the second part of the incident is not clearly placed before this court, their presence therein cannot be fully justified. Because, during cross examination PW1 categorically stated that when PW2 and others came, the accused was outside the house i.e. after the alleged entry to the house and assault they were going out. Thus, the genesis of the second phase also will be very important in appreciating the materials. The evidence of PWs 2 and 3 and others are therein. But at the very same time it is to be remembered that when witnesses PW2 and others came to the place of incident the first part of the incident was over. Thus, it can be only said that they were only entitled for oust the accused person from the courtyard, the intervention can be for that much alone. But here the evidence is that after PW2 and others came, there was beating. Surely both sides sustained injuries. Then, when appreciating the evidence of PWs 1, 2 and others explicit reliance cannot be made upon their claim that they Crl.R.P.No.800 of 2002 16 came and they were also beaten by the accused. Their presence therein was explained as invited by the son of PW1 to come and save. But by the time, accused were outside the courtyard the first part of incident was over. Thus considering all these aspects, the fact that the presence of the accused with a common object to attack by coming to the house need not be suspected. Trial court only convicted accused Nos.1 & 2 under Section 148 of IPC. There is acquittal for the said offence in respect of others. There was no State appeal. Hence alone the conviction of accused 1 & 2 under Section 148 of IPC will not lie. There is evidence of beating from the house as well as outside. Hence, conviction under Section 323 of IPC alone will lie. Thus, conviction under Section 323 r/w. 149 of IPC maintained. Thus, the conviction under Sections 143 and 147 r/w. 149 of IPC will sustain as there was a common object to commit an offence of trespass and assault. The conviction under Section 323 of IPC is also upheld. It cannot be said that there was any common object to attack PW2 Crl.R.P.No.800 of 2002 17 and inflict such an injury and that was the common object of the assembly. It is to be remembered that at the first place of incident PW2 was not present. PW2 came to the spot thereafter. Thus, the person who inflicted the injury on PW2 alone will be personally liable for his acts. The evidence is that A2 attacked PW2 with dangerous weapons and inflicted the grievous injury. Thus, except A2, the other accused will not be liable for a conviction under Section 326 of IPC as well as under Section 324 of IPC. When I am coming to this conclusion, the fact that the case was not jointly tried is also appreciated. At the same time the place of incident is also taken into consideration i.e. accused got no case that they got any right of entry at the place of incident which is the house/courtyard, the adjoining area of the house of defacto complainant. A trespasser cannot raise private defence. Thus the conviction under Section 326 of IPC of revision petitioners No. 1, 3, 4 & 5 is hereby set aside. Even though there is evidence to show that the assembly in the second part also were equipped with Crl.R.P.No.800 of 2002 18 weapon, the conviction under Section 148 of IPC also will lie against all the accused, as originally there was no conviction, except accused A1 and A2 for the said offence. For the reasons stated earlier, the conviction under Section 148 of IPC also set aside. The conviction under Sections 143, 147, r/w. Section 149 of IPC is hereby upheld. The conviction of appellant No.2 under Sections 143, 147 r/w. Section 149 of IPC and Sections 324 and 326 of I.P.C. is upheld. The sentence is also required modification especially when it is not a premeditated attack against PW2, who sustained the fracture injuries. Surely the fracture injuries are very grievous in nature i.e. the fractures were on the mandible area as well as on the frontal area. But considering the fact that the immediate genesis of the incident or a clear picture was not obtained by the trial court by trying the case and counter case by the same court and further appreciating the material evidence, the sentence under Section 326 of IPC against 2nd accused is modified and reduced as imprisonment for a period of 1= Crl.R.P.No.800 of 2002 19 years and to pay a fine of Rs.1,000/- with default imprisonment for three months. The sentence under Section 143 of IPC against accused/revision petitioners are modified as simple imprisonment for two months and for the offence under Section 147 of IPC, they are sentenced to undergo simple imprisonment for three months. Since no specific sentence awarded by the trial court under Section 323 and 324 of IPC and as there is no State appeal no sentence awarded by this court on those counts. The sentence will run concurrently and the petitioners are also entitled for set off.
The Criminal Revision Petition is partly allowed as stated above.
Sd/-
K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/