Vasanthakumari vs State Of Kerala
2022 Latest Caselaw 9177 Ker

            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

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

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

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

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

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

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

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

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

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