Dharman, Prakashan, Kanakambaran And Radhakrishnan vs State of Kerala

N.K. Balakrishnan, J.—This Revision is directed against the concurrent verdict of conviction and sentence passed against the petitioners who are A1 to A4 in C.C. No. 59 of 2000 of J.F.C.M. North Paravur. They were sentenced to undergo simple imprisonment for one year for the offence u/s 326 read with Sec. 149 I.P.C. They were also found guilty of the offences under Sections 143, 147, 341, 323 and 324 read with 149 I.P.C. and were sentenced to pay fine and in default of payment of fine to undergo various terms of simple imprisonment. Though the petitioners were found guilty, convicted and sentenced for the offence u/s 148 read with 149 I.P.C., the appellate court set aside the conviction and sentence passed for the offence u/s 148 read with Sec. 149 I.P.C. The Learned Counsel for the petitioners would submit that the evidence given by P.W. 1 is not supported by independent witnesses and that the sword-stick alleged to have been used by the accused Nos. 5 A6 were not recovered at all and so there is no legal evidence to show that any deadly weapon was used. It is further submitted that since these petitioners were found not guilty of offence u/s 148 read with Sec. 149 I.P.C., it is quiet clear that these petitioners had not carried any deadly weapon. It is further submitted that there is no legal evidence to find the petitioners guilty and hence the Learned Counsel submits that the conviction and sentence passed against the petitioners are liable to be set aside.

The learned Public Prosecutor has opposed the submission pointing out that the evidence given by P.W. 1 the injured itself is sufficient to hold the prosecution case as true.

The incident in this case took place at about 6.30 p.m. on 14-10-1998. P.W. 1 the injured was pedaling his bicycle along the road and when he reached in front of the library at Kedamangalam, he was obstructed by the petitioners herein and two other accused persons (A5 and A6). All the accused in prosecution of the common object wrongfully restrained P.W. 1 and then A1 to A4 beat and fisted him. They also kicked P.W. 1. P.W. 1 ran for his life to the shop of one Radhakrishnan. The accused chased him. He was pulled by the accused and from there A5 attacked P.W. 1 with a sword-stick. A6 also stabbed, hit or hacked P.W. 1 with the sword stick carried by him. Several injuries were caused on the body of P.W. 1. When P.W. 1 tried to ward off the blow by the sword-stick he sustained injuries on his fingers.

P.W. 1 was taken to K.M.K. Hospital, North Paravur and later he was referred to Medical Trust Hospital, Ernakulam. P.W. 1 underwent treatment for about 12 days and during that period he was also subjected to operation. The evidence given by P.W. 1 as to the manner in which he was attacked by the accused persons was to a great extent supported by P.W. 2.

P.W. 3 also supported the case of the prosecution. Further, there is also the evidence given by P.W. 5 that when P.W. 1 reached his house after the incident he requested for water and at that time P.W. 1 was bleeding profusely and it was from there the wound was tied using clothes. It is also important to note that P.W. 1 was first seen by the doctor at 7.30 p.m. on the same day and Ext. P1 wound certificate was issued. The specific allegation as to how and who attacked him was mentioned therein. It is true that two names out of the four names mentioned in the wound certificate are not of the accused. But the fact remains that the names of some of the accused persons were mentioned to the doctor. The further fact that he was attacked by using sword stick etc. would clearly support the case of the prosecution. The medical evidence would show that the petitioner had sustained very serious incised injuries as he was hacked by the accused using sword-stick. There was fracture of tibialis, and also fracture of 2nd, 3rd, and 4th meta carpel. Later partial imputation had to be done on the base of those three fingers.

The learned Magistrate appreciated the evidence given by P.W. 1 which is fully supported by the medical evidence obtained in this case. The fact that P.W. 1 was seen by the doctor within about one hour of the incident and to the doctor he had made specific allegation as to the cause of the injuries would fully support the prosecution. That alone is sufficient to find the prosecution case true. Other circumstances have also been pointed out by the learned Magistrate and also by the appellate court to hold that the petitioners were members of the unlawful assembly, the common object of which was to attack P.W. 1. All of them in prosecution of the common object wrongfully restrained P.W. 1 and attacked P.W. 1. It is true that A1 to A4, the petitioners herein were not having with them deadly weapon. It is equally important to note that when P.W. 1 ran for his life all the accused persons chased him to the shop of P. W.5 Radhakrishnan and P.W. 1 was dragged and brutally attacked by A5 and A6 using sword-stick. Therefore, all the petitioners are to be found guilty of the offence u/s 326 with the aid of Sec. 149 I.P.C. The contention that petitioners did not carry deadly weapon and so they should be shown leniency cannot be accepted.

It is surprising to note that accused Nos. 5 and 6 who had attacked P.W. 1 using sword-stick, were absconding throughout and they were not apprehended at all. It is not even certain whether they were actually under the protective umbrella of any political executives. The appellate court has re-appreciated the evidence and has rightly concurred with the finding entered by the learned magistrate. There is evidence in abundance to hold that the petitioners are guilty of the offences punishable under Sections 143, 147, 341, 323, 324 and 326 read with Sec. 149 I.P.C. The conviction to be thus confirmed.

The learned Magistrate has actually shown leniency in the matter of sentence. It was a brutal attack indeed. A perusal of the wound certificate and the evidence given by the doctor would make it clear as to the brutality of the attack mounted on P.W. 1. Even in such a serious case, the petitioners were sentenced only to undergo simple imprisonment for one year for the offence under Sec. 326 read with Sec. 149 I.P.C. Since leniency had already been shown by the courts below, I find no reason to interfere with the sentence as well. Since, no direction was issued by the courts below to pay compensation from out of the fine amount, I find, it is just and proper that 75% of the amount of fine realised should be given to P.W. 1 as compensation. In the result, this Crl. R.P. is disposed of as stated below:-

The conviction and the sentence passed against the petitioners is confirmed. If the fine amount is realised, 75% of amount of the same shall be given to P.W. 1 as compensation.

The learned Magistrate will take steps to execute the sentence at the earliest.