K. Shaji vs State of Kerala

K. Ramakrishnan, J.—The accused in C.C. No. 216/2010 on the files of Judicial First Class Magistrate Court - II, Sulthanbathery, is the revision petitioner herein. The revision petitioner was charge sheeted by the Sub Inspector of Police, Kenichira in Crime No. 187/2010 under sections 324 and 447 of Indian Penal Code.

The case of the prosecution in nutshell was that on 21.06.2010 at about 7.30 p.m. at Chenchedi in Nadavayal Amsom, the revision petitioner trespassed into the house of the defacto complainant and had beaten her with a wooden stick, a dangerous weapon, and caused hurt to her and thereby he had committed the offence punishable under sections 447 and 324 of Indian Penal Code. When the revision petitioner appeared before the court below, after hearing both sides, charges under sections 447 and 324 of Indian Penal Code were framed and the same was read over and explained to him and he pleaded not guilty.

In order to prove the case of the prosecution, PWs 1 to 13 were examined Exts. P1 to P6 and M.O.1 were marked on the side of the prosecution. After closure of the prosecution evidence, the revision petitioner was questioned under section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He has further stated that he has not committed any offence and he has been falsely implicated in the case. No defence evidence was adduced on his side. After considering the evidence on record, the trial court found the revision petitioner not guilty of the offence under section 447 of Indian Penal Code and acquitted him of that charge under section 248(1) of the Code of Criminal Procedure, but found the revision petitioner guilty of the offence under section 324 of Indian Penal Code and convicted him thereunder and sentenced him to undergo simple imprisonment for three months.

Dissatisfied with the order of conviction and sentence, he filed Criminal Appeal No. 63/2012 before the Sessions Court, Kalpetta which was made over to Additional Sessions Court-I, Kalpetta, for disposal. The learned Additional Sessions Judge dismissed the appeal, confirming the order of conviction and sentence passed by the Court below. Aggrieved with the same the present revision has been filed by the revision petitioner/accused before the Court below.

Considering the scope of enquiry and nature of evidence adduced, this Court felt that revision can be admitted and the same can be disposed of today itself, after hearing the counsel for the revision petitioner and the Public Prosecutor. So, the revision is admitted and heard and disposed of today itself.

The counsel for the revision petitioner submited that there was delay in lodging the complaint and except the interested testimony of PW1 to PW3 who are injured and related witness, there is no other evidence adduced to prove the case. So, according to him, this is a false case and on account of enmity, a false case has been registered and no offence under section 324 of Indian Penal Code is attracted. The question of any benefit of doubt in favour of the revision petitioner has not been considered by the Court below at all. Further, the sentence imposed is excessive and harsh.

On the other hand, the learned Public Prosecutor submitted that the prosecution has proved the case beyond reasonable doubt.

The case was registered on the basis of Ext. P1 statement given by the defacto complainant, the injured, namely PW1, on 2.7.2010, on the basis of which Ext. P5 First Information Report was registered by PW9, the Head Constable attached to the Police Station, as Crime No. 187/2010 under sections 447 and 324 of Indian Penal Code and the investigation in this case was undertaken by PWs 12 and 13. PW12, the Head Constable of Police of that Police Station, conducted the integral part of the investigation, went to the place of occurrence and prepared Ext. P2 scene mahazar in the presence of PW6 and another. M.O.1 was recovered as per Ext. P3 seizure mahazar in the presence of PW7 and another. PW1 was examined by PW8 - doctor, who issued Ext. P4 discharge certificate. Ext. P6, issued by PW11- Special Grade Village Officer, was produced to prove that the defacto complainant is in possession of the property from where the incident occurred. PW13 questioned the witnesses, recorded their statement and filed final report. PW5 was an independent witness examined, but he did not support the case of the prosecution.

It is true that the incident occurred on 21.06.2010, but the case was registered only on 2.07.2010, nearly after ten days of the alleged incident. But PW1 had stated that she was under the impression that it will be intimated to the Police from the hospital and only when she came to know that it was not done, she went to the Police Station and gave the statement.

It is settled law that delay in registering the crime is not always fatal, and if it is explained to the satisfaction of the Court, then that can be considered by the Court. In this case, the court below had accepted the reason given by PW1 for the delay and that appears to be justifiable and so rightly came to the conclusion that delay is not fatal in this case. PW1 had given evidence regarding the manner in which she was attacked by the revision petitioner and that was supported by the evidence of PWs 2 and 3, who are her daughters. It is not a case of no independent witness examined, but an independent witness examined as PW5 but he did not support the case of the prosecution. It is also settled law that merely because the witnesses examined are related and interested witnesses alone, is not sufficient to disbelieve the case of the prosecution. But the Court must be cautious in evaluating their evidence before accepting their evidence to base conviction on that evidence. In this case, though, PWs 1 to 3 were cross examined at length, nothing was brought out to discredit their evidence regarding the manner in which the incident occurred and how PW1 sustained injuries in the assault made by the revision petitioner. They identified M.O.1 as the stick used by the revision petitioner for committing the offence as well. The court below, on verifying M.O.1 came to the conclusion that it is a dangerous weapon so as to attract the offence under section 324 of Indian Penal Code. Further, the medical examination also shows that the injuries could be possible by using M.O.1 weapon. So, under the circumstances, Courts below were perfectly justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the revision petitioner had caused voluntary hurt to PW1 with M.O.1 dangerous weapon, wooden stick and thereby he had committed the offence punishable under section 324 of Indian Penal Code and rightly convicted him for the said offence. So, no illegality has been committed by the Courts below in arriving at such a conclusion and also no interference is called for on that aspect.

As regards the sentence is concerned, both the courts below have sentenced him to undergo imprisonment for three months. He is aged 35 years and nature of injury shows that it was not grave and the parties are relatives also. So, in such circumstances it is not necessary that imprisonment must be compulsory for such offences. Imposing fine and awarding compensation out of fine will meet the ends of justice. So, the sentence of three months imprisonment imposed by the Court below is set aside and the same is modified as follows:

The revision petitioner is sentenced to pay a fine of Rs. 6,000/- (Rupees Six thousand only) and in default to undergo simple imprisonment for one month. If the fine amount is realised, Rs. 5,000/- to be paid to PW1 as compensation under section 357(1)(b) of the Code of Criminal Procedure. Three months time is granted to the revision petitioner to pay the amount. Till then the execution of the sentence is directed to be kept in abeyance by the court below.

With the above modification of the sentence, the revision is allowed in part and disposed of.