IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
CRL.REV.PET NO. 699 OF 2005
JUDGMENT IN CRA 448/2003 OF ADDITIONAL SESSIONS COURT
(ADHOC)-II, MANJERI
JUDGMENT IN CC 697/2001 OF JUDICIAL MAGISTRATE OF FIRST
CLASS-I,MANJERI
REVISION PETITIONERS/APPELLANTS/ACCUSED:
1 VASANTHAKUMARI, W/O RADHAKRISHNAN,
NAZHIKAL HOUSE, VELLAYOOR AMSOM,, KONNERIKKUNNU.
2 RATHEESH S/O.RADHAKRISHNAN
NAZHIKAL HOUSE, VELLAYOOR AMSOM, KONNERIKKUNNU.
BY ADVS.SRI.ALAN PAPALI
SRI.ANTONY ROBERT DIAS
SRI.GILBERT GEORGE CORREYA
SRI.J.VIMAL
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
SRI. SANGEETHA RAJ, PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.699/2005
-:2:-
ORDER
Dated this the 10th day of August, 2022 This revision petition has been directed against the judgment dated 21.2.2005 in Crl.A.No.448/2003 on the file of the Sessions Court, Manjeri (for short 'the appellate court') and the judgment in C.C.No.697/2001 dated 19.11.2003 on the file of the Judicial First Class Magistrate I, Manjeri (for short 'the trial court').
2. The accused (two in numbers) at the court below are the revision petitioners. They faced trial for the offences punishable under Sections 326, 324, 323 read with Section 34 of IPC.
3. The accused and the victims are close relatives. The injured were examined as PW1 and PW2. PW2 is the son of PW1. The accused No.1 is the sister of PW1 and the accused No.2 is the son of the accused No.1. The prosecution evidence reveals that the relationship between the accused, PW1 and PW2 were strained even before the alleged incident.
4. The prosecution case in short is that on 30.4.2001 at Crl.R.P.No.699/2005 -:3:- 5.30 pm, the accused No.1 pelted a bamboo stump and caused PW1 to fall on the ground at Konnerikunne and thereafter the accused No.2 had voluntarily caused a fracture to the right leg of PW1 by beating with a reaper and the accused No.1 has also caused fracture to the right hand of PW1 by beating with a reaper. When PW2 intervened, he was also attacked by the accused No.2 by beating with a reaper.
5. The accused appeared at the court below. After hearing both sides, charge was framed against the accused under Sections 326, 324, 323 read with 34 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW10 were examined and Exts.P1 to P8 were marked. MO1 to MO3 were identified. No defence evidence was adduced. The trial court, on appreciation of evidence, found the accused guilty for the offence punishable under Sections 326, 324, 323 read with 34 of IPC and they were convicted for the said offences. They were sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹2,000/- each under Section 326 of IPC, in default to suffer simple imprisonment for one month, rigorous imprisonment for Crl.R.P.No.699/2005 -:4:- six months for the offence punishable under Section 324 of IPC and rigorous imprisonment for three months for the offence punishable under Section 323 of IPC read with Section 34 of IPC. The appellate court in appeal confirmed the conviction, but modified the sentence. The accused were sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹2,000/-, in default to suffer simple imprisonment for one month for the offences punishable under Section 326 read with 34 of IPC, to undergo rigorous imprisonment for six months under Section 324 of IPC and to undergo rigorous imprisonment for three months under Sections 323 read with 34 of IPC. The conviction and sentence passed by the courts below are under challenge in this revision petition.
6. I have heard Sri. Alan Papali, the learned counsel for the petitioners and Sri. Sangeetha Raj, the learned Public Prosecutor.
7. Both the courts below relied on the evidence of PW1 to PW4 and PW8 to prove the incident and to fix the culpability on the accused. PW1 is the defacto complainant and the injured. PW2 is also an injured. PW3, PW4 and PW8 are independent Crl.R.P.No.699/2005 -:5:- witnesses. According to PW1, the incident took place on 30.4.2001 at 5 pm in a lane situated near to the residence of one Narayanankutty at Konnerikunne. PW1 deposed that, while he proceeded through the scene of occurrence, the accused No.1 attacked him and inflicted injuries on his right thumb by cutting with a knife. He further stated that the accused No.2 pelted him with a bamboo stump and as a result of the attack, he fell down and thereafter both the accused beat him all over his body. He further stated that the wife of Narayanankutty (PW3) intervened and thereafter, the accused unfolded the dothi worn by him and tied the same on his neck and he was dragged to the compound of one Sachidanandan and from there also the accused assaulted him. Thereafter, PW2 reached the spot and when he intervened, the accused attacked him also. He identified MO1 as the knife used by the accused No.1 to attack him as well as MO2 series reapers used by the accused to assault him and PW2.
8. Almost the entire part of the evidence given by PW1 in chief examination was contradicted with the statement given by him to the police under Section 161 of Cr.P.C. Those statements were also marked through PW10, the investigating officer. It is Crl.R.P.No.699/2005 -:6:- pertinent to note that initially, in the FIR as well as in the FIS, the case of the prosecution is that, the accused inflicted injury on PW1 with a knife first and thereafter with reapers. But when further statement of PW1 was recorded by PW10, PW1 specifically stated that he was not attacked by the accused No.1 with a knife at all. However, again, when PW1 gave evidence, he stated that the accused No.1 inflicted injury on his right thumb with a knife. Almost the entire portion of the evidence given by PW1 cannot be relied on as it is contradictory to the statement given by him to the police. That apart, it has come out in evidence that in the very same incident, accused No.1 has also sustained injury and a counter case has been registered on the allegation that PW1 assaulted and inflicted injury on the accused No.1. PW2 to PW4 and PW8 did not witness the starting point of the incident. They came to the spot subsequently. They also did not depose that the accused No.1 has inflicted injury on PW1 with a knife. That apart, the evidence given by PW3 and PW4 would clearly show that they saw PW1 chasing the accused No.1 with a knife. All these evidence suggest that the genesis of the prosecution case projected by the prosecution is not as Crl.R.P.No.699/2005 -:7:- disclosed in the prosecution version. Even the courts below have found that there is falsity in the evidence of PW1 with regard to the starting point of the incident.
9. The trial court specifically came to the finding that even though PW1 would claim that he was attacked by the accused No.1 with MO1, his version in this connection does not appear to be true. None of the prosecution witnesses deposed that PW1 was attacked by the accused with a knife. The trial court also found that the evidence on record would go to show that there was altercation between PW1 and the accused and there was aggression on the part of PW1. Hence, it is clear that the incident in fact was not as projected by the prosecution. Both the courts below failed to note the vital contradictions and material omissions in the evidence of PW1.
10. There is yet another important aspect. The incriminating circumstances brought out by the prosecution against the accused in evidence of PW1, PW3 and PW4 were not put to the accused during his examination under Section 313 of Cr.P.C in the manner contemplated under law. The Apex Court in Asraf Ali v. State of Assam [(2008) 16 SCC 328] has held that Crl.R.P.No.699/2005 -:8:- if a point in the evidence is important against the accused and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. It was further held that when no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial and that a circumstance about which the accused was not asked to explain cannot be used against him. In Ranvir Yadav v. State of Bihar [(2009) 6 SCC 595], the Apex Court stressing up on the importance of observing faithfully and fairly the provisions of Section 313 of Cr.P.C held that "it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. xxxx Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand." Crl.R.P.No.699/2005 -:9:- Recently, the Apex Court in Jai Prakash Tiwari V. State of Madhya Pradesh (2022 Live law SC 658) has observed that, Section 313 of Cr.P.C confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the Constitution of India. It was held that if all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not be able to put forth a rational and intelligible explanation.
11. A perusal of the questions put to accused would show that the court below has clubbed together the incriminating circumstances brought out in the evidence of PW1, PW3 and PW4 in a single question and put to the accused. The said question contains matters, which even PW3 and PW4 did not state in their evidence. Hence, I am of the view that the dictum laid down in the above decisions squarely apply to the facts of the case.
12. It is true that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re- appreciation of evidence. However, the powers under Section 397 read with Section 401 of Cr.P.C are inherent in nature to correct Crl.R.P.No.699/2005 -:10:- the judgments and orders of the courts below which suffer from gross illegality or jurisdictional error. If the findings in the judgment under revision have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible materials/evidence or the entire approach of the court in dealing with evidence is patently illegal leading to the miscarriage of justice, nothing prevents this court from exercising such revisional powers. As stated already, the evidence tendered by PW1 is full of contradictions and omissions. Even the courts below found that the evidence tendered by him that the accused No.1 inflicted injury on him with a knife is false. A perusal of the evidence given by PW1 would clearly show that the genesis of the case is not as projected by the prosecution. The fact that there is a counter case and PW3 and PW4 deposed that they saw PW1 chasing the accused No.1 with a knife was totally ignored by the courts below. Thus, the entire approach of the courts below in dealing with the evidence is patently illegal. That apart, the mandatory requirement to be followed while putting questions under Section 313 of Cr.P.C was not honoured in its true spirit by the courts below. For these reasons, I hold Crl.R.P.No.699/2005 -:11:- that it is a fit case where the discretionary power vested with this court under Section 397 read with Section 401 of Cr.P.C could be exercised.
In the light of the above findings, the conviction and sentence passed by the courts below vide the impugned judgments cannot be sustained and accordingly they are set aside. The revision petitioners are found not guilty of the offences charged against them and accordingly they are acquitted. The Crl.revision petition is allowed as above.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE kp