Madhavan, Bharathan And Krishnankutty vs State of Kerala

Honourable Mr. Justice. P.S. Gopinathan

The Sub Inspector of Police, Varkala in Crime No. 161/1992 prosecuted revision petitioners before the Judicial Magistrate of the First Class, Varkala accusing offence under Sections 341, 323, 324 and 326 read with 34 IPC with a plea that at 10 P.M., on 13/5/1992, the revision petitioners, in furtherance of their common intention, were armed with deadly weapons, like chopper and sword, and assaulted PW2 and thereby PW2 sustained grievous hurt. The case was registered by PW5, the Head Constable on the basis of Exhibit P2 First Information Statement given by PW2. PW5 completed the investigation and submitted the charge sheet before the trial court.

The learned Magistrate issued process, responding to which the revision petitioners entered appearance. Thereupon the revision petitioners were heard and a charge for the above said offences was framed. When read over and explained, the revision petitioners pleaded not guilty. Therefore, they were sent for trial. On the side of the prosecution, PWs 1 to 8 were examined. Exhibits P1 to P8 were marked. After closing the evidence for the prosecution, the revision petitioners were questioned u/s 313 of the Code of Criminal Procedure. They denied the incriminating evidence and advanced a plea of total innocence. No defence evidence was let in. On appraisal of the evidence, the learned Magistrate arrived at a conclusion of guilty. Consequently, revision petitioners were convicted and sentenced to simple imprisonment for one month, three months, six months and two years respectively under the above Sections. A fine of Rs. 1,000/- each was also slapped against the revision petitioners u/s 326 IPC. The fine amount was ordered to be paid to PW2 as compensation.

Aggrieved by the above conviction and sentence, they preferred Crl. Appeal No. 59/1994 before the Sessions Judge Thiruvananthapuram. The Additional Sessions Judge (Adhoc-II), to whom the appeal was made over, by judgment dated 2/7/2003, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.

I have heard Adv. Smt. Mini Gopinath, the learned counsel appearing for the revision petitioners and Sri. Noushad Thottathil, the learned Government Pleader. The learned counsel for the revision petitioners took me through the relevant portions of the evidence.

PW2, the victim, of course, had given evidence supporting the prosecution. PWs 6 and 7 were cited as occurrence witnesses. But the court below disbelieved PWs 6 and 7 as their evidence is contradictory. Whereas PW2 was believed and arrived a finding of guilty. Since the occurrence witnesses were not relied upon by the court below, I had a critical scrutiny of the evidence of PW2 through which the learned counsel took me. Going by the evidence of PW2, though he was subjected to searching cross-examination, no material was disclosed to disbelieve him.

The evidence of PW2 would show that he was first taken to the Health Centre at Varkkala. From there he was referred to the Taluk Head Quarters Hospital, Chirayinkizh. PW1 was the Medical Officer attached to the Taluk Head Quarters Hospital, Chirayinkizh. The evidence of PW1 supported by Exhibit P1 wound certificate would show that PW2 had (1) a lacerated wound 3 cm x.75 cm cutting through the bone on the back of right forearm about 5 cm above the wrist, (2) a lacerated wound 1.5cm x.5 cm on the back of left forearm about 5 cm below the elbow, (3) a lacerated wound 4 cm x.75 cm on the lateral aspect of left leg about 3 cm below the knee, (4) a lacerated wound 3 cm x.25 cm on the mid part of the left thigh at about the middle, (5) a lacerated wound 3 cm long bone deep on the right upper parietal region of scalp and (6) a lacerated wound 4 cm long bone deep on the right side of forehead. According to PW3, the Lecturer in Medical College hospital, Thiruvananthapuram, who issued Exhibit P3 treatment certificate, PW2 had multiple incised wounds left leg, left thigh, left forearm, right forearm and scalp and grade II compound fracture of the right ulna. The injuries mentioned by PW1 as lacerated injuries were read as incised wounds by PW3. Defence version is that PW2 attempted to molest the wife of the 2nd accused. Then the revision petitioners chased him, he fell into a quarry and sustained injury. Other than the vague suggestion, there is no evidence on record to come to a conclusion that PW2 fell into the quarry and sustained the injuries. There is nothing brought to show that near the house of the revision petitioners there was any quarry to fall into. The nature of injury is not in tune with the defence suggestion. Therefore, I find no merit in the defence advanced.

PW2 would depose that he had identified the assailants in the street light. Though there is no mention about the street light in the scene mahazar, on a critical scrutiny of the evidence of PW2, I find little reason to disbelieve his evidence which remains unimpeached. There is nothing on record to come to a conclusion that the petitioners were falsely implicated with any ulterior motive. The courts below, especially, the trial court which had occasion to watch the demeanour of PW2 had given reliance to the testimony of PW2. I find no illegality, or impropriety committed by the courts below in finding the revision petitioners guilty. The conviction under challenge is sustainable. Having due regard to the nature of the injuries, I find that the sentence awarded for offences u/s 341, 323 and 324 IPC are not harsh or disproportionate. But the sentence awarded for offence u/s 326 IPC is a little bit excessive. I find that a sentence of rigorous imprisonment for a period of ten months with a fine of Rs. 5,000/- u/s 326 IPC would meet the ends of justice.

In the result, the revision petition is allowed in part. While confirming the conviction and sentence for offences u/s 341, 323 and 324 IPC, the sentence for offence u/s 326 IPC is reduced to rigorous imprisonment for ten months and a fine of Rs. 5,000/- (five thousand only) each. Out of the fine amount if collected, Rs. 10,000/- (ten thousand only) shall be paid to PW2 as compensation. The sentence shall run concurrently. The revision petitioners are directed to surrender before the trial court which shall see the execution of sentence.