Surendran vs State Of Kerala
2021 Latest Caselaw 151 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

    TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                   Crl.Rev.Pet.No.1771 OF 2007

   AGAINST THE JUDGMENT IN CRL.APPEAL NO.242/2005 OF ADDITIONAL
         SESSIONS COURT (ADHOC), MANJERI DATED 31.01.2007

 AGAINST THE JUDGMENT IN CC NO.809/2001 OF JUDICIAL MAGISTRATE OF
                FIRST CLASS ,TIRUR DATED 31.05.2005


REVISION PETITIONER/APPELLANT/ACCUSED:

             SURENDRAN, S/O.APPUKUNHAN,
             MELEPURAKKAL HOUSE,
             AMBALAPARAMBIL,,
             THOZHUVANNUR AMSOM,
             KARTHALA DESOM.

             BY ADV. SRI.K.P.MUJEEB

RESPONDENT/COMPLAINANT/STATE:

             STATE OF KERALA
             THE PUBLIC PROSECUTOR,,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ



     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
05.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.Rev.Pet.No.1771 OF 2007
                                  2




                                 ORDER

Dated this the 5th day of January 2021

The revision petitioner is the accused in CC No.809 of 2001

on the file of the Judicial First Class Magistrate Court, Thirur

and the appellant in Crl.Appeal No.242 of 2005 on the file of the

Additional Sessions Court (Adhoc), Manjeri. The offence alleged

against the accused is punishable under Sections 326 of the

Indian Penal Code.

2. The prosecution case in brief is that on 01.03.1997 at

7.30 p.m., the accused voluntarily caused grievous hurt to PW1

by stabbing with a knife on his left cheek and right chest on the

pathway situated infront of the house of the accused.

3. On the appearance of the accused, after hearing both

sides, the learned Magistrate framed charge against the accused

for the offence punishable under Section 326 of the IPC. The

charge was read over to which the accused pleaded not guilty.

4. When the case came up for evidence, PWs 1 to 8 were

examined and marked Exts.P1 to P6 on the prosecution side. On Crl.Rev.Pet.No.1771 OF 2007

closing the evidence of the prosecution, the accused was

questioned under Section 313(1)(b) of the Cr.P.C. He denied all

the incriminating circumstances appearing in the evidence

against him. DW1 was examined on his side and marked D1 to

D3.

5. On appreciation of the evidence, the trial court

convicted and sentenced the accused to undergo rigorous

imprisonment for two years and also to pay a fine of Rs.5,000/-,

in default to undergo simple imprisonment for three months

more for the offence punishable under Section 326 of the IPC.

Challenging the aforesaid conviction and sentence the accused

preferred appeal before the Sessions Court, Manjeri. By its

judgment dated 31.01.2007, the learned Additional Sessions

Judge (Adhoc), Manjeri dismissed the appeal confirming the

conviction and sentence imposed by the trial court.

6. Heard Smt.V.A.Mini, the learned Amicus Curiae

appointed by this Court for the revision petitioner and

Sri.M.S.Breez, the learned Senior Public Prosecutor for the State.

7 The learned counsel for the revision petitioner Crl.Rev.Pet.No.1771 OF 2007

submitted that the trial court mainly relied on the oral evidence

of PW1 and Ext.P3 wound certificate issued by PW6 and entered

a finding that the accused voluntarily caused hurt to PW1 as

alleged by the prosecution. According to the learned Amicus

Curiae, PW7, the Investigation Officer clearly stated that on

05.03.1997 he had conducted search at the residence of the

accused and recovered one knife and stick as material objects in

the case. Relying on Ext.P6 search list, the learned Amicus

Curiae submitted that PW7 recovered a knife and a stick and

produced before the court. However, the knife so produced was

not shown to PW1 when he was examined before the court.

Further, it was submitted that the knife and stick were not

snown to PW3 when he was not examined before the court.

Elaborating on the submission, the learned Amicus Curiae

further submitted that eventhough production of material object

is not essential in a hurt case, the legal position is different in a

case wherein the material object is recovered and produced

before the court and the prosecution has suppressed the material

objects as evidence.

Crl.Rev.Pet.No.1771 OF 2007

8. Per contra, the learned Public Prosecutor submitted

that the trial court and the appellate court meticulously analysed

the evidence in detail relying on the evidence of PWs 1 and 3

and concurrently held that the accused committed the offence

punishable under Section 326 of the IPC. According to the

learned Public Prosecutor, unless the findings of the two courts

below are patently perverse, this Court would not be justified in

interfering with the concurrent findings of the facts so rendered

by the two courts below.

9. PW1 testified that the first cousin of wife of PW1 is the

sister of the wife of the accused. The accused was totally against

giving the said Komalam in wedlock. Hence, as desired by the

mother of the said Komalam, PW1 had decided to interfere in

the matter. According to PW1, he then asked the accused to send

away Komalam in marriage with his help. However, the accused

was totally reluctant and was unwilling to do the same. The

allegation is that thereafter, the accused came to his house with a

knife, stabbed on the abdomen twice, stabbed on PW1's chest

and cheek. PW1 testified that he was in the hospital for a month. Crl.Rev.Pet.No.1771 OF 2007

10. PW2 is the wife of PW1 and PW3 is the son of PW1.

Although they were examined before court, they stated that they

did not actually see the overtacts committed by the accused.

However, they testified before that that they saw PW1 in a state

of having sustained very serious injuries. They have also stated

that they found the accused holding a knife on his hand.

11. PW3 examined PW1 on 01.03.1997 at 10 p.m. and

issued Ext.P3 wound certificate. The injuries caused to PW1 as

per Ext.P3 is as follows:

"(i) Penetrating injury left cheek, communicating with oral

cavity 6x5 c.m dislocation of left upper molar along with sockets

(ii) Penetrating injury left lateral chest wall over the anterior

axilary line 5x2 c.m., communicating with plural cavity

(iii) stab injury left paraumblicar region communicating with

peritonial cavity

(iv) Penetrating injury right hypochondrial (right side of upper

abdomen) muscle deep 10x5 c.m."

12. The trial court mainly relied on the oral evidence of

PW1 and Ext.P3 and entered a finding that the accused

voluntarily caused hurt to PW1 and the injuries sustained to him

are within the domain of Section 320 of the IPC. Accordingly, Crl.Rev.Pet.No.1771 OF 2007

the accused was convicted and sentenced for the offence under

Section 323 of the IPC. In appeal, the appellate court concurred

with the findings of the trial court and dismissed the appeal.

13. PW7 conducted investigation in this case and filed the

final report. It is clear from the evidence of PW7 that on

05.03.1997 he conducted search at the residence of the accused

and recovered one knife and stick as material objects in the case.

Thereafter, he filed Ext.P6 search list before the court. PW8 was

examined to prove the search list. He is one of the signatories in

Ext.P6 search list. It is clear that PW7 conducted search at the

residence of the accused and recovered one knife and stick from

the residence of the accused. It was done in the presence of PW8.

When PW1 was examined, the knife and stick were not shown to

him. In fact, the knife and stick were not exhibited as material

objects during the trial of the case. No explanation was offered

by the prosecution for not proving the material objects as

evidence in this case. When the material objects were seized by

the investigating officer pursuant to a search conducted by him

and was produced before the court, the prosecution ought to Crl.Rev.Pet.No.1771 OF 2007

have taken steps to get it marked in evidence in accordance with

law. The occurrence in this case took place on 01.03.1997. No

purpose would be served if the case is remitted to the trial court

after 24 years from the date of occurrence. On going through the

evidence of PW1, it is disclosed that he had sustained serious

injuries pursuant to the occurrence. However, the material

objects involved in the case is important to prove the

prosecution case. Unless and until the same is marked in

evidence and confronted to the witnesses during examination, it

is difficult to hold that the accused in fact voluntarily caused hurt

to PW1 as alleged by the prosecution. This is all the more

important in a case where PWs 2 and 3 stated that they had seen

the accused holding MO1 on his hand. Hence, a corresponding

duty was there on the part of the prosecution to show the

weapon to PWs 1 to 3 and 6 to prove the prosecution case

during the trial. The non-production of material objects during

the trial has prejudiced the case of the accused. Considering the

time lag, this Court is not inclined to remand the case for filling

up the lacuna on the part of the prosecution. Thus, the accused is Crl.Rev.Pet.No.1771 OF 2007

entitled to get the benefit of doubt.

14. Both the trial court and appellate court appreciated

the evidence without considering the above legal aspects. Hence,

the concurrent findings of conviction and sentence are liable to

be set aside.

In the result, the revision is allowed. The revision

petitioner/accused is found not guilty for the offences

punishable under Sections 326 of the IPC and accordingly, he is

acquitted thereunder. Cancelling his bail bond, this Court directs

that he be set at liberty. If any fine amount is deposited during

the pendency of the revision, pursuant to an order of this Court,

the same shall be refunded to the revision petitioner/accused, in

accordance with law. Pending applications, if any, stand

disposed of.

Sd/-

N.ANIL KUMAR, JUDGE

dlk/05.01.2021