C.A.Sherif & Others vs State Of Kerala
2021 Latest Caselaw 21326 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                  CRL.REV.PET NO. 3573 OF 2010
 AGAINST THE JUDGMENT IN CRA 85/2008 OF ADDITIONAL DISTRICT
            COURT (ADHOC), KASARAGOD, DATED 15.2.2008
        CC 381/1996 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                    ,MAGISTRATE-I, KASARAGOD
REVISION PETITIONERS/APPELLANTS/ACCUSED:

    1       C.A.SHERIF,S/O ABDULLA,
            CHALA, KASARGOD, KASBA VILLAGE.

    2       C.A.MUHAMMED KUNHI @ MAMMU S/O.ABDULLA
            CHALA, KASARGOD, KASBA VILLAGE.

    3       C.A.ABDULLA @ ABU S/O.MUHAMMED
            CHALA, KASARGOD, KASBA VILLAGE.

           BY ADVS.SRI.SHAIJAN C.GEORGE
           SRI.ABHISHEK KURIAN
           SMT.S.REKHA KUMARI


RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY THE SUB INSPECTOR OF POLICE,,
           KASARGOD POLICE STATION THROUGH THE PUBLIC,
           PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

           BY PP SRI. SANAL P. RAJ

      THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.R.P.No.3573/2010

                               -:2:-

                            ORDER

Dated this the 29th day of October, 2021

This revision has been directed against the judgment dated

26.10.2010 in Crl.A.No.85/2008 on the files of the Additional

Sessions Court (Adhoc) I, Kasaragod (for short "the appellate

court") confirming the judgment in C.C.No.381/1996 dated

15/2/2008 on the files of the Judicial First Class Magistrate-I,

Kasaragod (for short "the trial court").

2. The accused (three in numbers) at the courts below

are the revision petitioners. They faced trial for offences

punishable under Sections 341 and 326 read with Section 34 of

IPC.

3. The prosecution case in short is that, on 8.3.1995 at 5

pm, the accused Nos. 1 to 3 in furtherance of their common

intention wrongfully restrained PW1 at a place called Chala in

Kasaba town and inflicted grievous injuries by beating with iron

pipe and thus committed the offence. According to the

prosecution, during the incident, PW1 lost 4 teeth from the upper

jaw and 7 teeth from the lower jaw and further sustained

fracture at maxilla. The accused appeared at the court below. Crl.R.P.No.3573/2010

After hearing both sides, charge was framed against the accused

under Sections 341 and 326 read with Section 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 PW11 were

examined and Exts.P1 to P9 were marked. MO1 to MO3 were

identified. No defence evidence was adduced. The trial court on

appreciation of evidence found the accused guilty under Sections

341 and 326 read with Section 34 of IPC and they were convicted

for the said offences. The accused were sentenced to undergo

simple imprisonment for one month each under Section 341 read

with Section 34 of the IPC and rigorous imprisonment for three

years and to pay fine of Rs.10,000/- each, in default to suffer

simple imprisonment for 1 year each, under Section 326 of IPC.

The appellate court, in appeal, confirmed the conviction and

sentence and dismissed the appeal. The conviction and sentence

passed by both courts below are under challenge in this revision

petition.

4. It is well settled that the revisional jurisdiction under

Sections 397 and 401 of Cr.P.C was to confer power upon

superior courts a kind of paternal or supervisory jurisdiction in Crl.R.P.No.3573/2010

order to correct miscarriage of justice arising from misconception

of law, irregularity of procedure, neglect of proper precautions or

apparent harshness of treatment. It has been consistently held

by the Apex Court that the jurisdiction of the High Court in

revision is severely restricted and it cannot embark upon

reappreciation of evidence.

5. The court below relied on the evidence of PW1 to PW3

and PW5 to prove the incident and to fix the culpability on the

accused. PW1 is the injured. PW2 is a relative of PW1 and an

occurrence witness. PW3 is the wife of PW1. PW5 is another

occurrence witness. PW1 to PW3 and PW5 gave consistent and

credible version of the crime. Their evidence inspires confidence.

Even though they were cross examined at length, nothing

tangible has been extracted from their evidence to create any

shadow of doubt that they are not truthful witnesses. No vital

contradictions or material omissions were brought out in their

evidence. They clearly deposed about the manner in which the

accused attacked the victim, the nature of the weapon used by

them and the part of the body of injured whereupon the injuries

were inflicted by the accused. They have also identified MO1 iron Crl.R.P.No.3573/2010

pipe as the weapon used for the commission of offence.

Therefore, both courts below rightly relied on their evidence to

prove the incident. Their evidence would clearly establish that

the accused wrongfully restrained PW1 and inflicted injuries on

his body with MO1. I find no reason to upset the said finding of

fact under the exercise of the jurisdiction vested with this Court

under Section 397 and 401 of Cr.P.C.

6. The learned counsel for the revision petitioner

Sri.Shaijan C. George vehemently argued that the offence under

Section 326 of IPC would not be attracted on the evidence

available on record. I find some force in the said argument. In

order to attract the offenec under Section 326 of IPC, the

accused should voluntarily cause grievous hurt by dangerous

weapon or means. No doubt, MO1 is a dangerous weapon falls

under Section 326 of IPC. The term "grievous hurt" has been

defined under Section 320 of IPC. According to the prosecution,

the injuries sustained by PW1 falls within Clause 7. Clause

'seventhly' of Section 320 of IPC provides that a fracture or

dislocation of a bone or tooth shall be designated as 'grievous

hurt'.

Crl.R.P.No.3573/2010

7. The medical evidence consists of Exts.P5 and P7

treatment certificates and the oral testimony of the doctors who

were examined as PW7 and PW9. Immediately after the

incident, PW1 was taken to the Government Hospital Kasaragod

and PW7 examined him and issued Ext.P5 wound certificate.

Ext.P5 would show the following injuries:

1. Lacerated wound 8 cm long on top of head scalp deep.

2. Incised wound 1 cm long on lower lip.

3. Incised wound bone deep at the middle of left leg, 2 cm long.

8. It is not in dispute that the above injuries would not

fall within the category of "grievous hurt" so as to attract Section

320 of IPC. According to the prosecution, PW7 referred PW1 to

Government Wenlock Hospital, Mangalore suspecting head injury.

It is also so stated in Ext.P5. Ext.P7 coupled with the evidence of

PW9 would show that PW1 was treated by a doctor at Unity

Health Complex, Mangalore after his treatment at Government

Hospital, Kasaragod. Ext.P7 is the certificate styled as

"Treatment Particulars" issued by the Health Officer-cum-

Assistant Surgeon at Unity Health Complex, Mangalore. He was

examined as PW9. Ext.P7 would show that PW1 had fracture on Crl.R.P.No.3573/2010

right maxilla with missing of teeth from upper jaw and lower jaw

and another fracture to the mandible right side with missing of

teeth. No doubt, if legally proved, the said injuries will fall within

the category of "grievous hurt" so as to attract Section 320 of

IPC.

9. The crucial question is whether the prosecution has

legally proved that PW1 had sustained fracture to right maxilla

and mandible. Ext.P7 is not a wound certificate nor is a

treatment certificate issued by a doctor who treated PW1 at the

Unity Health Complex, Mangalore. It is issued by a Health

Officer-cum-Assistant Surgeon of the hospital. PW9 is not a

Dental Surgeon. In Ext.P7, PW9 gives only the particulars of the

treatment given to PW1 by the doctors who treated PW1 at the

hospital. No where in Ext.P7 is it stated that PW9 had treated or

at least examined PW1. But in chief examination, PW9 stated

that on 8.3.1995 at 8 pm, he examined PW1 and found that he

had sustained fractures mentioned in Ext.P7. But in cross

examination, he categorically admitted that he did not treat PW1.

He stated that he referred PW1 to Dr.Sharma, Dental Surgeon

who treated him under general anesthesia. He further stated Crl.R.P.No.3573/2010

that PW1 was treated by Dr.Sharma and another Dr.Devadiga,

Neuro Surgeon. Thus, the reading of PW9 would show that he

did not treat PW1 at all. On a perusal of the case records, I

could find a certificate issued by the dental surgeon Dr.Sharma

who treated PW1. But that document was not tendered or

marked in evidence. Without examining the Dental Surgeon who

treated PW1, the contents stated in Ext.P7 issued by another

doctor who did not treat PW1 cannot be relied on. In order to

prove the fracture allegedly sustained by PW1, the Dental

Surgeon who treated PW1 for the said fracture should be

examined. It is pertinent to note that the specific defence of the

accused is that PW1 lost his teeth prior to the incident due to a

bike accident and he sustained damage to the artificial teeth

used by him at the time of the incident. Great prejudice has

been caused to the accused in not examining the Dental Surgeon

concerned who treated PW1 to substantiate the above said

defence version as rightly argued by the learned counsel for the

accused/revision petitioners.

10. Even though the prosecution has failed to examine the

doctor concerned, the materials on record prima facie disclose Crl.R.P.No.3573/2010

that PW1 has sustained fracture to his teeth in the incident.

However, the said fact has not been legally established by

examining the right person and producing the correct documents.

Hence, I am of the view that interest of justice demands that the

prosecution should be given an opportunity to examine the

doctor concerned to prove its case.

11. As stated already, this Court is not supposed to

reappreciate the evidence in a revision petition. But, this is not a

case of reappreciation of evidence, but, this is a case where the

courts below have taken into account the evidence by an

incompetent person to convict the accused under Section 326 of

IPC. The revisional power of this Court under Section 397 read

with Section 401 of Cr.P.C is wide, though need to be sparingly

exercised in a fit case. The powers are inherent in nature to

correct the judgments of the courts below which suffer from

gross illegality. For the reasons stated above, I hold that the

courts below has committed gross illegality in convicting the

accused under Section 326 of IPC based on legally inadmissible

evidence. Hence, the conviction and sentence passed by the

courts below under Section 326 of IPC is liable to be set aside. Crl.R.P.No.3573/2010

The matter has to be remanded back to the trial court to

reconsider the charge under Section 326 of IPC afresh.

In the result, this Crl.R.P is allowed in part. The conviction

and sentence passed by both the courts below under Section 326

of IPC are set aside. The case is remanded back to the trial court

for fresh disposal. The trial court shall give an opportunity to the

prosecution to adduce further evidence to prove the nature of

injuries sustained by PW1 in the incident. Needless to say, the

defence shall also be given an opportunity to adduce defence

evidence in this regard. Thereafter, the court below shall dispose

of the case in accordance with law. The accused/revisions

petitioners shall appear before the trial court on 25.11.2021.

Sd/-

                                       DR. KAUSER EDAPPAGATH
                                               JUDGE
kp                     True copy
                           P.A. To Judge