Laiju vs State Of Kerala

G.Girish, J

The revision petitioners, two in number, filed this revision aggrieved by their conviction and sentence by the Judicial First Class Magistrate, Idukki in C.C No.382/2002, which were upheld in appeal by the Additional Sessions Court (Adhoc)-II, Thodupuzha in Crl.A.No.63/2005.

The 1st petitioner was found guilty of commission of offence under Sections 326, 324 and 323 I.P.C., and the 2nd petitioner for the commission of offence under Sections 323 and 324 I.P.C. Accordingly, the 1st petitioner was awarded a sentence of simple imprisonment for six months and fine Rs.3000/- under Section 326 I.P.C and simple imprisonment for one month each and fine Rs.1000/- each under Sections 324 and 323 I.P.C. The 2nd petitioner was sentenced to undergo simple imprisonment for one month each and fine Rs.1000/-each under Sections 323 and 324 I.P.C.

Though the petitioners preferred appeal before the Sessions Court, Thodupuzha as Criminal Appeal No.63/2005, the learned Additional Sessions Judge (Adhoc)-II, Thodupuzha declined to interfere, and thus, dismissed the appeal.

Aggrieved by the above concurrent verdicts of the courts below, the petitioners preferred this revision.

On 15.10.2020, the learned counsel for the revision petitioners submitted before this Court that the 1st revision petitioner passed away on 15.05.2011. No legal representatives sought   impleadment   towards   prosecuting   this   revision proceedings for and on behalf of the 1st petitioner. Thus, the revision stands abated, as far as the 1st revision petitioner is concerned.

The prosecution case is that on 20.05.2001 at about 3.45 p.m., the petitioners, in furtherance of their common intention, inflicted voluntary hurt upon PW1 in a public road near Elappara and caused injuries including grievous hurt to him. It is alleged that the 1st petitioner inflicted blows upon the left knee and stomach of PW1 with a stick, causing fracture of knee bone, and the 2nd petitioner kicked on the waist of PW1.

In connection with the above crime, the Additional Sub-Inspector of Police, Peerumade conducted the investigation and laid the final report.

In the trial before the Judicial First Class Magistrate Court, Idukki, nine witnesses were examined as PW1 to PW9 and five documents marked as Exts.P1 to P5. One document was exhibited from the part of the defence as Ext.D1. After evaluating the above evidence and hearing both sides, the learned Magistrate convicted and sentenced the petitioners, as stated in paragraph No.2 above. As stated in paragraph No.3, the appellate court declined to interfere with the above conviction and sentence.

Heard the learned counsel for the 2nd revision petitioner and the learned Public Prosecutor.

The learned counsel for the 2nd revision petitioner adverted to the discussions to point No.3 in paragraph No.23 of the judgment of the trial court and  argued that mutually inconsistent and self-contradictory findings are made thereunder by the trial court with regard to the culpability of the 2nd petitioner in this crime. Referring to the observation of the learned Magistrate that there is absolutely no evidence to show that the 1st accused committed grievous hurt with a dangerous weapon in furtherance of the common intention of both the accused, and also that there is nothing on record, which enable the court to come to a conclusion that the 1st accused inflicted grievous hurt on PW1 with the knowledge of the 2nd accused and there was prior meeting of their minds to commit the above act by the 1st accused, the learned counsel for the 2nd revision petitioner would contend that the trial court resorted to the conviction of the 2nd revision petitioner in utter disregard of the above observation in the discussion to point No.3 in paragraph No.23 of the impugned judgment.

The argument advanced by the learned counsel for the 2nd revision petitioner in the above regard deserves meritorious consideration. It could be seen from the discussions of the trial court to point No.3 in paragraph No.23 of the impugned judgment that the learned Magistrate arrived at the categoric finding that there was absolutely no evidence to show that the 2nd revision petitioner shared common intention with the 1st revision petitioner in inflicting voluntary grievous hurt upon PW1 with a dangerous weapon. The case records would reveal that the weapon of offence, which is said to be a stick, was used in the commission of crime only by the 1st accused (1st petitioner). There is no case for the prosecution that the 2nd accused (2nd revision petitioner) had used stick or any other weapon for inflicting voluntary hurt upon PW1. The 2nd revision petitioner has been fastened with the criminal liability with regard to causing voluntary hurt upon PW1 with dangerous weapon only by invoking the aid of Section 34 I.P.C. As the learned Magistrate had arrived at the definite conclusion that there was total absence of evidence pointing to the sharing of common intention between 1st and 2nd petitioners for inflicting grievous hurt upon PW1 with a dangerous weapon, it was totally impossible to fasten the 2nd revision petitioner (2nd petitioner) with any criminal liability in connection with the injuries inflicted upon PW1 with the stick wielded by the 1st accused. However, the individual act of kicking upon the waist of PW1, committed by the 2nd revision petitioner, cannot be said to have been absolved due to the above finding of the learned Magistrate with regard to the absence of common intention on the part of the 2nd petitioner to inflict grievous hurt with dangerous weapon.

Therefore, the conviction of the 2nd petitioner for the offence under Section 323 I.P.C will lie, though he cannot be held liable for the hurt inflicted upon PW1 with the use of stick wielded by the 1st accused.

The evidence adduced by the prosecution through the oral testimonies of PW1 to PW3 with regard to the act of the 2nd revision petitioner kicking on the lower belly of PW1, after he had been beaten down with a stick by the 1st accused, is not liable to be eschewed. Therefore, the conviction of the 2nd revision petitioner by the learned Magistrate for the commission of offence under Section 323 I.P.C holds good, though the learned Magistrate erred in the finding that the 2nd revision petitioner also committed the offence under Section 324 I.P.C.

As regards the sentence imposed by the trial court upon the 2nd revision petitioner for the offence under Section 323 I.P.C., the term of simple imprisonment for one month need be excluded, taking into account of the present stage of this case pending before various forums for the past more than two decades. Accordingly, I find that the sentence of simple imprisonment for one month and fine Rs.1000/- imposed upon the 2nd revision petitioner by the trial court, and upheld by the appellate court, for the offence under Section 323 I.P.C., is liable to be modified to fine Rs.1000/- (Rupees One Thousand only) alone.

In  the  result,  the  revision  is  allowed  in  part  as follows:

(i) The conviction and sentence of the 2nd revision petitioner (2nd accused) for the offence under Section 324 I.P.C., are set aside, and he is acquitted thereunder of the above charge.

(ii) While upholding the conviction of the 2nd revision petitioner for the offence under Section 323 I.P.C., the sentence awarded by the courts below, is modified to fine Rs.1000/-(Rupees One Thousand only).

(iii) In default of payment of fine, as directed above, the 2nd revision petitioner (2nd accused) shall undergo simple imprisonment for one month.

(iv) As the revision stands abated as against the 1st revision petitioner due to his death, the trial court is at liberty to proceed against the legal representatives of the 1st  petitioner towards realizing the fine imposed by it, as per the judgment dated 08.02.2005, out of the assets of the deceased held by those legal representatives.