Kerala High Court
Sasidharan vs State Of Kerala on 5 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
CRL.REV.PET NO. 2063 OF 2014
Crl.A NO.262 OF 2010 OF ADDITIONAL DISTRICT COURT &
SESSIONS COURT - VII, THIRUVANANTHAPURAM / IV ADDITIONAL
MACT
CC NO.854 OF 2005 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -I,NEYYATTINKARA
CRIME NO.188 OF 2005 OF NEMOM POLICE STATION
REVISION PETITIONER/APPELLANT/ACCUSED:
SASIDHARAN
AGED 58 YEARS
S/O.BHASKARAN, KUZHIVILA VEEDU, MUKALOORMOOLA WARD,
KALLIYOOR VILLAGE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.G.P.SHINOD
SHRI.AJIT G ANJARLEKAR
SRI.MANU V.
RESPONDENT/RESPONDENT/COMPLAINANT STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
SMT SEETHA S, SR PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 05.02.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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Crl.R.P 2063 of 2014 2
ORDER
The petitioner is the sole accused in CC No.854/2005 on the files
of the Judicial First Class Magistrate Court I, Neyyattinkara. He had
undergone trial for the commission of offence under Sections 294(b),
323, 324, 354 and 506(ii) IPC before the learned Magistrate. As per the
judgment dated 27.03.2010 in the above case, the Trial Court found the
petitioner guilty of commission of offence under Section 324 IPC and
convicted him. He was sentenced to undergo Simple Imprisonment for
one year under Section 324 IPC. All the other charges levelled against
him were found against the prosecution, and he was acquitted
thereunder. The petitioner challenged the above verdict before the
Sessions Court, Thiruvananthapuram, in Crl.Appeal No.262/2010. The
learned Additional Sessions Judge VII, Thiruvananthapuram, after a
reappreciation of the entire evidence, concurred with the Trial Court on
finding that the petitioner committed offence under Section 324 IPC.
However, the sentence awarded was modified to Simple Imprisonment
for three months. Aggrieved by the aforesaid judgment dated
10.10.2014 in Crl.Appeal No.262/2010, the petitioner is before this Court
2025:KER:9402
with this revision.
2. Heard the learned counsel for the petitioner and the learned
Public Prosecutor representing the State of Kerala.
3. Prosecution case is that on 18.05.2005 at about 2 pm, the
petitioner assaulted the de facto complainant (PW2) with an iron rod and
inflicted voluntary hurt upon her, at a time when she was attempting to
collect a mango which fell into the compound of the petitioner. Before
the Trial Court, the prosecution relied on the oral evidence of PW1 to
PW5 and the documents marked as Exhibits P1 to P5. However, PW1
turned hostile to the prosecution and discredited the prosecution story.
The one and only witness who tendered evidence before the prosecution
in support of the occurrence was the victim herself who was examined as
PW2. The Trial Court relied on the evidence of PW2, and arrived at the
finding that the prosecution succeeded in establishing that the petitioner
inflicted voluntary hurt upon the victim with an iron rod. The Appellate
Court also concurred with the aforesaid finding of the Trial Court and
held that there was no reason to disbelieve the testimony of PW2.
4. It is pertinent to note that the offence for which the
petitioner has been convicted and sentenced by the courts below is
Section 324 IPC, which deals with inflicting voluntary hurt with a
2025:KER:9402
dangerous weapon. In the instant case, the dangerous weapon allegedly
used by the petitioner for inflicting voluntary hurt upon the de facto
complainant is an iron rod. However, the aforesaid iron rod had not been
recovered by the Investigating Agency and produced before the learned
Magistrate. Apart from a bald statement that the weapon of offence was
not found, there is no explanation offered by the Investigating Officer,
who was examined as PW5, as to why the above said iron rod could not
be recovered. There is nothing on record about any effort made by the
Investigating Agency to have the weapon of offence seized. Nor could it
be discerned from the prosecution evidence that the petitioner had
managed to dispose of the weapon of offence in such a manner that it
could not be recovered. Apart from the mere oral evidence of PW1 and
PW5, the prosecution could not bring out anything to show that the
petitioner used a deadly weapon for inflicting hurt upon the de facto
complainant. It is true that recovery of material object used for the
commission of offence is not an inevitable requirement for arriving at a
conviction under Section 324 IPC. However, the prosecution as well as
the Investigating Agency owe the responsibility to explain why the
weapon of offence could not be recovered. In a case like this, where
the prosecution solely rests upon the testimony of the injured to
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establish a charge under Section 324 IPC, the failure of the Investigating
Agency to give a plausible explanation for the inability to recover the
weapon of offence, cannot be ignored as a trivial aspect. Neither the
Trial Court nor the Appellate Court had delved into the above aspect
regarding the failure of the Investigating Agency to trace out the weapon
of offence and to bring it before the Trial Court. In the above
circumstances, I am of the view that the Trial Court as well as the
Appellate Court went wrong in arriving at the finding that the petitioner
committed the offence under Section 324 IPC. However, the evidence on
record could be safely relied on to find that PW2, the de facto
complainant, was subjected to voluntary hurt coming under the definition
of Section 323 IPC, by the petitioner herein. Therefore, the conviction
and sentence awarded to the petitioner are liable to be modified
accordingly.
5. Having regard to the fact that the incident involved in this
case took place about two decades ago, and also taking into account the
fact that the petitioner is now aged more than 70 years, I deem it
appropriate to modify the sentence to imprisonment till rising of court
with a further direction to pay compensation of Rs.10,000/- to PW2
under Section 357(3) of the Code of Criminal Procedure.
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In the result, the revision stands allowed in part as follows:
1. The findings of the Trial Court as well as the Appellate Court
that the petitioner/accused is guilty of Section 324 IPC is set
aside.
2. The petitioner/accused is found guilty of Section 323 IPC
and convicted thereunder.
3. The petitioner/accused is sentenced to undergo
imprisonment till rising of the court with a further direction
to pay compensation of Rs.10,000/- to PW2 under Section
357(3) Cr.P.C. In the event of failure on the part of the
petitioner to pay compensation as directed above, he will
undergo Simple Imprisonment for a period of three months.
The petitioner/accused shall surrender before the Trial Court within
a period of 30 days from today to undergo the sentence imposed by this
Court as above. Registry shall transmit the case records forthwith to the
Trial Court.
Sd/-
G.GIRISH
JUDGE
IAP
