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2020 DIGILAW 658 (KER)

Sudevan v. State of Kerala

2020-08-03

N.ANIL KUMAR

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ORDER : N. Anil Kumar, J. 1. The revision petitioners 1 to 3 are accused 1 to 3 respectively in CC. No. 820/1996 on the file of the Judicial First Class Magistrate-I, Attingal. 2. By judgment dated 16.09.2000 the learned Magistrate convicted and sentenced the accused to undergo simple imprisonment for one month for the offences punishable under Section 341 read with Section 34 of the Indian Penal Code and sentenced the accused to undergo simple imprisonment for six months for the offences punishable under Section 324 read with Section 34 of the Indian Penal Code. No separate sentence was awarded for the offences punishable under Section 323 of IPC. Being aggrieved, the accused 1 to 3 preferred Criminal Appeal No. 408/2000 before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram, to whom the case was made over for hearing and disposal, dismissed the appeal confirming the conviction and sentence imposed by the trial court by judgment dated 07.03.2006. Challenging the conviction and sentence, the revision petitioner is before this Court. 3. The prosecution case in brief is hereinbelow:- PW1, one Vidhyadharan, S/o. Velayudhan, who was a lorry driver by profession, was married to one Leela and out of the said wedlock, they were having three children. During the year 1991, PW1 started living with PW2 Suseela, who had divorced her husband. Thereafter, PW1 and PW2 were living together at the residence of PW2 at Kizhuvalam Village at Mudapuram. On 02.06.1996 at 10. p.m., while PW1 was proceeding to the house of PW2, accused 1 to 3, out of previous enmity in connection with the loading and unloading work in to the property of one Sakunthala, wrongfully restrained PW1 and stabbed him with a pen-knife. It is further alleged that the 1st and 2nd accused wrongfully restrained PW1 by forcibly catching hold of him and the 3rd accused stabbed him with the aforesaid pen-knife, resulting two simple injuries on the left side of his left wrist and on injury on the dorsum of his right palm. 4. For the occurrence in question, PW1 lodged Ext. P1 FIS before PW5, the Head Constable of Chirayinkeezhu Police Station. On the strength of Ext. P1 FIS, PW5 registered Ext. P4 FIR against accused 1 to 3 for the offences punishable under Sections 341, 323, 324 read with Section 34 of Indian Penal Code. 4. For the occurrence in question, PW1 lodged Ext. P1 FIS before PW5, the Head Constable of Chirayinkeezhu Police Station. On the strength of Ext. P1 FIS, PW5 registered Ext. P4 FIR against accused 1 to 3 for the offences punishable under Sections 341, 323, 324 read with Section 34 of Indian Penal Code. PW15 conducted the investigation, questioned the witnesses, recorded their statements and filed the final report before the Court. 5. During the trial, PW1 to PW6 were examined and marked Exts. P1 to P5 and Ext. P1(a). On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. Their cases is one of total denial. However, two witnesses were examined as DW1 and DW2 on the defence side and marked Ext. D1. 6. PW1, an injured witness in this case, would testify that the occurrence in question occurred on 02.06.1996 at about 10. p.m., while he was returning to home after his daily work. He further stated that when he reached near to the residence of A1, all the accused in furtherance of their common intention wrongfully restrained him and inflicted blows on him with a pen-knife and he sustained injuries on his right and left wrists. He further stated that after the occurrence, all the accused ran away from the place of occurrence. 7. PW1 further stated that on hearing his hue and cry, PW2 and other residents of the area rushed to the scene of occurrence and took him to Government Hospital at Chirayinkeezhu and from there he was taken to Medical College Hospital, Thiruvananthapuram, for better management. At the Medical College Hospital, Thiruvananthapuram, PW1 was examined by PW3 and issued Ext. P2 wound certificate. 8. PW2 supported the version of PW1. She stated that A1 to A3 in furtherance of their common intention wrongfully restrained PW1 and inflicted hurt on PW1 with a pen-knife. According to her, she saw the occurrence through the electric light emanated from the neighboring house. She also stated that she identified the accused with the help of a handy torch. 9. PW6 is the Sub Inspector, Chirayinkeezhu Police Station, who conducted the investigation and laid the charge sheet before the Court. 10. PW6 stated before the Court that A1 to A3 surrendered before him. He recorded their arrest and released them on bail. On going through Ext. 9. PW6 is the Sub Inspector, Chirayinkeezhu Police Station, who conducted the investigation and laid the charge sheet before the Court. 10. PW6 stated before the Court that A1 to A3 surrendered before him. He recorded their arrest and released them on bail. On going through Ext. P1 FIS, it is clear that accused 1 to 3 inflicted injuries on PW1 with a pen-knife. When PW1 was surrendered before PW6, he was aware of the fact that accused 1 to 3 assaulted PW1 with a pen-knife. However, he did not make any attempt to recover the pen-knife which is said to be the weapon used by the accused by which the injuries had been caused to PW1. Immediately after the surrender, PW6 mechanically recorded their statement and released the accused on bail. Although PW5 who conducted investigation in this case recorded Ext. P3 scene mahazar visited the place of occurrence and prepared the scene mahazar, no earnest attempt was made to recover the pen-knife involved in this case. No explanation was offered by the prosecution as to why the pen-knife was not recovered. It is true that the recovery of the weapon is invariably not necessary to prove the injuries sustained to the accused in a hurt case. In case recovery cannot be effected due to the reasons beyond the control of the Investing Officer, the prosecution is obliged to offer possible explanation for the same. In the case on hand, no explanation has been offered. 11. Ext. P2 wound certificate would show that the accused had consumed alcohol at the time of occurrence. It is specifically noted in Ext. P2 that there was smell of alcohol in the breath of PW1 while examining him. Ext. D1 case records would show that PW1 was brought to the Medical College Hospital at Thiruvananthapuram on 03.06.1996 at 2.15. a.m. in the night. Ext. D1 would further show that PW1 was residing at the residence of PW1 namely Vayalil Veedu, Mudapuram P.O., Chirayinkeezhu. Ext. D1 was produced by DW1, one of the staff working in the office of the Superintendent of Medical college, Thiruvananthapuram. The appellate court mainly discarded Ext. D1 on the ground that PW1 was admitted at the hospital at 3.30. a.m. which has no nexus with Ext. P2 wound certificate. As per Ext. P2 wound certificate, PW1 was admitted at 2.15. a.m. On going through the second page of Ext. The appellate court mainly discarded Ext. D1 on the ground that PW1 was admitted at the hospital at 3.30. a.m. which has no nexus with Ext. P2 wound certificate. As per Ext. P2 wound certificate, PW1 was admitted at 2.15. a.m. On going through the second page of Ext. D1, it is clear that PW1 was brought to the hospital on 03.06.1996 at 2.15. a.m. and admitted at 3.30. p.m. later. Ext. D1 would show that the patient was under the influence of alcohol. However, Ext. D1 would indicate that smell of alcohol was present at the time of examination. The prosecution has no case that Ext. D1 case record is in connection with some other offence. In a criminal trial, the prosecution is obliged to furnish all materials before the Court to prove the occurrence beyond doubt. When PW1 was under the influence of alcohol at the time of occurrence, the prosecution was obliged to produce the entire truth before the court to arrive at a just decision of the case. In the case on hand, the fact that PW1 was under the influence of alcohol is seen suppressed by the prosecution. During the trial, the accused took steps to produce Ext. D1 before court to prove that PW1 was under the influence of alcohol. When it was produced by the Court, it was not logical for the court to reject Ext. D1 on the ground that the document was not produced by a competent person authorised by the Medical College and proved through the doctor who prepared Ext. D1. The evidence tendered by DW1 would show that he was duly authorized by the Superintendent of Medical College, Thiruvananthapuram, to produce the documents before the Court. 12. PW1 adduced evidence to show that he proceeded towards the residence of PW2 at an untimely hour and that too at 10. p.m. with the aid of a handy torch. At the same time, evidence would indicate that PW1 was under the influence of alcohol. It is not logical to infer that a person under the influence of alcohol was able to trace out the accused in the night at 10. p.m. with the aid of a handy torch. It is also difficult to believe that PW1 identified A1 to A3 with the aid of a handy torch. It is not logical to infer that a person under the influence of alcohol was able to trace out the accused in the night at 10. p.m. with the aid of a handy torch. It is also difficult to believe that PW1 identified A1 to A3 with the aid of a handy torch. According to PW1, PW2 rushed to the scene of occurrence after hearing his hue and cry. If the version of PW1 is believed, the version of PW2 is highly improbable. PW1 stated that immediately after the occurrence, A1 to A3 ran away from the spot. Under the above circumstances, it is also very difficult to believe that PW2 had witnessed the occurrence as testified by her. 13. As per the prosecution case, the alleged incident took place at 2. p.m. on 02.06.1996 and the FIR was lodged only at 1.15. p.m. on 03.06.1996. The delay, on the facts and in the circumstances of the case, would show that PW1 lodged Ext. P1 after due deliberations and discussion with others. When PW2 was examined, she had admitted that she asked PW1 to reveal the name of the assailants. 14. Although motive is irrelevant in a criminal case when a motive is alleged by the prosecution, it is the duty of the prosecution to prove the same. According to the prosecution, in connection with the unloading of rocks in to the property of one Sakunthala, A1 to A3 wrongfully restrained PW1 and stabbed him with a pen-knife. However, Sakunthala, to whose property, PW1 is said to have unloaded rocks was not cited as witness to prove the prosecution case. 15. The trial court as well as the appellate court erroneously appreciated the evidence on record. Accordingly, accused 1 to 3 were convicted without sufficient evidence resulting manifest injustice. Hence, the conviction and sentence imposed by the trial court as confirmed by the appellate court are liable to be set aside. In the result, this criminal revision petition stands allowed. The revision petitioners/accused 1 to 3 are found not guilty for the offences punishable under Sections 341, 323, 324 r/w Section 34 of the Indian Penal Code and they are acquitted thereunder. Cancelling their bail bonds, this Court directs that they be set at liberty.