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2025 DIGILAW 2090 (KER)

Rajesh S/o Narayanan v. State of Kerala

2025-07-29

P.V.BALAKRISHNAN

body2025
ORDER : 1. The challenge in this revision petition is the conviction and sentence imposed against the revision petitioner under Sections 341 and 326 of IPC. 2. The revision petitioner is the sole accused in C.C.No.118 of 2004 on the files of the Judicial First Class Magistrate Court, Ponnani. 3. The prosecution case is that, on 06.02.2004 at about 10.30 p.m, while a function was going on in the house of one Velayudan, situated near Eramangalam boat jetty in connection with a marriage ceremony, the accused picked up a quarrel with PW2 and PW5 and when PW1 intervened, wrongfully restrained him and inflicted a stab injury on his abdomen using a knife. 4. In the trial court, from the side of the prosecution, PW1 to PW9 were examined and Exts.P1 to P8 documents and MO1 were marked. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against him in evidence and contended that he is innocent. Even though an opportunity was granted, the accused did not adduce any defence evidence. The trial court, on an appreciation of the evidence on record, found the accused guilty and convicted him under Sections 341 and 326 of IPC. The accused was sentenced to undergo simple imprisonment for a period of one month under Section 341 of IPC and rigorous imprisonment for a period of three years and to pay a fine of Rs.30,000/- under Section 326 of IPC, with a default clause. 5. The accused carried the matter in appeal by filing Crl.Appeal No.334 of 2012 before the Additional Sessions Court-III, Manjeri. The said court, by judgment dated 14.12.2015, dismissed the appeal. 6. Heard Sri.T.K.Sandeep, learned counsel for the revision petitioner and Adv.Sanal P.Raj, learned Public Prosecutor. Perused the records. 7. The learned counsel for the revision petitioner submitted that both the trial court and the appellate court did not properly appreciate the evidence on record and has arrived at a wrong conclusion of guilt against the accused. He submitted PW1 while giving evidence, has categorically stated that MO1 is not the weapon used to attack him and the prosecution did not make any endeavour to identify MO1 through the other eye witnesses. He argued that none of the eye witnesses, including the injured has identified the accused, as the person who has attacked and inflicted injuries upon PW1. He argued that none of the eye witnesses, including the injured has identified the accused, as the person who has attacked and inflicted injuries upon PW1. He further submitted that the evidence relating to the recovery of MO1 is also not credible and believable. 8. Per contra, the learned Public Prosecutor supported the impugned judgments and contended that there are no grounds to interfere with the same. He submitted that even if the weapon used to attack the victim is not produced or identified, the same is not a ground to discard the otherwise credible evidence of the eye witnesses who have specifically spoken to, about the accused inflicting a stab injury using a knife on his abdomen. He also submitted that the evidence of PW1, PW2, PW3 and PW5 would clearly show that it is none other than the accused who has inflicted the injury upon PW1. 9. An appraisal of the materials on record goes to show that the prosecution is mainly relying upon the evidence of PW1, PW2, PW3 and PW5 who are the eye witnesses, to prove the incident. PW1 is the injured and he deposed that on 06.02.2004 at about 8.30 p.m, when he intervened in a quarrel between the accused and his wife, the accused had stabbed him using a knife on his abdomen. Thereafter, he was taken to Government Hospital, Ponnani and from there to a hospital in Edappal and thereafter to the Medical College Hospital, Thrissur, where he underwent two surgeries. He also stated that he was totally bedridden for about ten days after the incident and even after the discharge, for about 25 days. It is to be seen that the evidence of PW2 and PW3, who have witnessed the incident also corroborates with the evidence of PW1 on material particulars and especially, with regard to the manner in which the incident has taken place. Further, the evidence of PW5 also supports the prosecution case and shows that he had seen the accused fleeing, immediately after the incident. 10. Be that as it may, it is very pertinent to note that, even though PW1, PW2, PW3 and PW5 have deposed regarding the incident of PW1 getting stabbed, none of these witnesses have identified the accused in the dock, as the person who has stabbed PW1. 10. Be that as it may, it is very pertinent to note that, even though PW1, PW2, PW3 and PW5 have deposed regarding the incident of PW1 getting stabbed, none of these witnesses have identified the accused in the dock, as the person who has stabbed PW1. The evidence of PW1, PW2 and PW3 clearly reveals that they have not identified the accused in the dock as the assailant and the evidence of PW5 shows that even though, he has deposed that he can identify the accused, the same has not been done. The records clearly show that the prosecution while conducting the chief examination of these witnesses has not made an attempt to get the accused in the dock identified, as the person who has committed the offence. It is a settled law that the substantive evidence of identification is the identification of an accused in the dock. Even if the case of the prosecution is that the witnesses are closely related or known to each other, the same will not suffice unless they positively identify the accused in the dock. As held by this Court in Manu G.Rajan and Another v. State of Kerala [ 2021(5) KHC 767 ] , merely because all accused persons were directly known by witnesses, that by itself does not take away the requirement of proper identification in dock and when there is failure to properly identify the accused in dock, it is fatal to the prosecution case. Further, the Hon'ble Apex Court in the decision in Tukesh Singh v. State of Chattisgarh [2025 KHC 6479] , has also held that identification of the accused in court, by the eye witnesses is of utmost importance and failure to identify the accused in court as the person seen committing the crime is fatal to prosecution case, as it fails to establish beyond reasonable doubt that the accused present in the court is the same person who committed the alleged offences. Now even if it is a case where there is only one accused, as in the instant case, I am of the view that there is no exception from applying the afore principles of law and failure to identify the person in the dock will be fatal. 11. Now even if it is a case where there is only one accused, as in the instant case, I am of the view that there is no exception from applying the afore principles of law and failure to identify the person in the dock will be fatal. 11. Moving further, it is to be seen that the specific case of the prosecution is that it is by using MO1 knife, the accused has stabbed PW1 and has inflicted the injury. But it is to be taken note that when PW1 was cross-examined and when MO1 was shown to him, he specifically stated that it is not the weapon which has been used to stab him. He also stated that the weapon used was much bigger than MO1 and is not foldable. It is very interesting to note that, the prosecution did not endeavour to challenge the said version of PW1, after seeking permission from the court under Section 154 of the Evidence Act. It is also very pertinent to note that the prosecution did not venture to show MO1 to the other eye witnesses and get it identified. In other words, I may say that there is also no substantive evidence identifying MO1 as the weapon used in the crime. 12. Be that as it may, at this juncture, I will also take note of the evidence of PW9, which is to the effect that he has seized MO1 as per Ext.P6 mahazar on 29.02.2004, when it was produced by PW5 before him. It is interesting to note that even though PW5 would say that he has taken possession of the weapon on the date of incident itself, when the accused dropped it and left the place, the same has been allegedly produced before PW9 only 23 days after the incident. There is absolutely no explanation forthcoming from the side of the prosecution regarding the said delay. Even if the case of the prosecution is such, it is to be seen that no attempt has been made by the prosecution to show MO1 to PW5 and get it identified. It is again interesting to note that the evidence of PW7, a witness to the Ext.P6 mahazar, would go to show that the police has, recovered MO1 from near a broken pipe situated near Babu's house and that he has signed in Ext.P6 from a place near to it. It is again interesting to note that the evidence of PW7, a witness to the Ext.P6 mahazar, would go to show that the police has, recovered MO1 from near a broken pipe situated near Babu's house and that he has signed in Ext.P6 from a place near to it. The said version of PW7 which is totally contradictory to the prosecution case, also remains unchallenged by the prosecution. 13. In the light of the afore discussions, I have no doubt in my mind that the prosecution has failed to prove beyond reasonable doubt that it is the accused who has inflicted the stab injury on PW1, using a knife. Both the trial court and the appellate court have missed the afore relevant points while analysing the evidence and has reached a wrong conclusion of guilt against the accused. This in turn means that this revision petition is only to be allowed thereby, setting aside the conviction and sentence against the revision petitioner/accused. In the result, this revision petition is allowed, as follows: (i) The conviction and sentence passed against the revision petitioner/accused under Sections 341 and 326 of IPC in C.C.No.118 of 2004 by the Judicial First Class Magistrate Court, Ponnani and as affirmed in Crl.Appeal No.334 of 2012 by the Additional Sessions Court-III, Manjeri is set aside and the revision petitioner/accused is set at liberty.