Kerala High Court
Sadanandan vs State Of Kerala on 29 January, 2025
Crl.A.(V)No.309/2014 &
Crl.R.P.No.1270/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRA(V) NO. 309 OF 2014
AGAINST THE JUDGMENT DATED 10.06.2013 IN CRIMINAL
APPEAL NO.67 OF 2007 ON THE FILE OF THE COURT OF SESSION,
THALASSERY ARISING OUT OF THE JUDGMENT DATED 07.02.2007 IN
SC NO.202 OF 1997 ON THE FILE OF THE PRINCIPAL ASSISTANT
SESSIONS JUDGE, THALASSERY.
APPELLANT/VICTIM/PW1:
SADANANDAN,
AGED 49 YEARS,
S/O KUNHIRAMAN NAMBIAR,
MANJULALAYAM,
PERINCHERI P.O,
KAYANI,
PAZHASSI AMSOM,
THALASSERY,
KANNUR DISTRICT
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
Crl.A.(V)No.309/2014 &
Crl.R.P.No.1270/2013
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RESPONDENTS/STATE & ACCUSED NO.1 TO 12:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM -682 031.
2 K. SREEDHARAN,
AGED 49 YEARS,
S/O KRISHNAN,
KAPPANAKANDI PARAMBIL HOUSE,
MUNORAPOYIL,
PAZHASSI AMSOM,
KUZHIKKAL DESOM.
3 MATHAMANGALAM NANU,
AGED 54 YEARS,
S/O AMBOOTTY,
PALATHARACHIL HOUSE,
PAZHASSI ASMOM,
KUZHIKKAL DESOM.
4 PUTHIYAVEETTIL MACHAN RAJAN,
AGED 52 YEARS,
S/O KRISHNAN,
PUTHIYAVEETTIL,
MACHAN HOUSE,
PAZHASSI AMSOM,
PERINCHERI DESOM.
5 P. KRISHNAN @ KUNHIKRISHNAN,
AGED 57 YEARS,
S/O NARAYANAN NAMBIAR,
PUTHUSSERY HOUSE,
PAZHASSI AMSOM,
KUZHIKKAL DESOM.
6 CHANDROTH RAVEENDRAN @ RAVI,
AGED 49 YEARS,
S/O KUNHI RAMAN,
K.K.R. NIVAS,
PAZHASSI AMSOM,
MANAKAI DESOM.
Crl.A.(V)No.309/2014 &
Crl.R.P.No.1270/2013
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7 PULLANHIYODAN SURESH BABU @ BABU,
AGED 43 YEARS,
S/O BALAN,
KARAKANDI HOUSE,
PAZHASSI AMSOM,
KARAYATTA DESOM.
8 MAILAPRAVAN RAMACHANDRAN,
AGED 37 YEARS,
S/O KUNHIRAMAN NAMBIAR,
CHEMATHAKANDY HOUSE,
PAZHASSI AMSOM,
PERUCHERY DESOM.
9 K. BALAKRISHNAN @ BALAN,
AGED 44 YEARS,
S/O RAMAN NAIR,
KALLIPPARAMBATH HOUSE,
PAZHASSI AMSOM,
KUZHIKKAL DESOM.
10 AKKANISSERI KOOMULLIL HARINDRANATHAN,
S/O MADHAVAN NAMBIAR,
MADHAVA SADANAM,
PAZHASSI AMSOM,
NELLUNNI.
11 K. SREEDHARAN,
S/O KUNHIRAMAN,
KOORAMVELLI HOUSE,
KEEZHUR AMSOM,
PUNNAD DESOM.
12 PUTHIYEDATH PURUSHOTHAMAN,
S/O KRISHNAN,
PERUMPRA HOUSE,
PAZHASSI AMSOM,
KARA DESOM.
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Crl.R.P.No.1270/2013
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13 VAZHAYIL MUKUNDAN,
S/O. GOPALAN,
VAZHAYIL HOUSE,
PAZHASSI AMSOM,
EDAPPAZHASSI.
BY ADVS.
P.M.RAFIQ
SRI.CIBI THOMAS
SRI.LOHITHAKSHAN CHATHADI KANNOTH
SRI.T.G.RAJENDRAN
P.VIJAYA BHANU (SR.)
MITHA SUDHINDRAN
RAHUL SUNIL
SRUTHY N. BHAT
AJEESH K.SASI
POOJA PANKAJ
M.REVIKRISHNAN
BY ADV.SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL BY DEFACTO COMPLAINANT/VICTIM
HAVING BEEN FINALLY HEARD ON 21.01.2025, ALONG WITH
CRL.REV.PET.1270/2013, THE COURT ON 29.01.2025 DELIVERED THE
FOLLOWING:
Crl.A.(V)No.309/2014 &
Crl.R.P.No.1270/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.REV.PET NO. 1270 OF 2013
AGAINST THE JUDGMENT DATED 10.06.2013 IN CRIMINAL
APPEAL NO.67 OF 2007 ON THE FILE OF THE COURT OF SESSION,
THALASSERY ARISING OUT OF THE JUDGMENT DATED 07.02.2007 IN
SC NO.202 OF 1997 ON THE FILE OF THE PRINCIPAL ASSISTANT
SESSIONS JUDGE, THALASSERY.
REVISION PETITIONERS/APPELLANTS/ACCUSED:
1 K.SREEDHARAN,
S/O. KRISHNAN,
AGED 55 YEARS,
KAPPANAKANDI PARAMBIL HOUSE,
MUNORAPOYIL,
PAZHASSI AMSOM,
KUZHIKAL DESOM.
2 MATHAMANGALAM NANU,
AGED 60 YEARS,
S/O. AMBOOTTY,
PALATHARACHILIL HOUSE,
PAZHASSI AMSOM,
KUZHIKAL DESOM.
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Crl.R.P.No.1270/2013
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3 PUTHIYAVEETTIL MACHAN RAJAN,
AGED 58 YEARS,
S/O. KRISHNAN,
PUTHIVEETTIL MANCHAN HOUSE,
PAZHASSI AMSOM,
PERINCHERY DESOM.
4 P.KRISHNAN & KUNHIKRISHNAN,
AGED 63 YEARS,
S/O. NARAYANAN NAMBIAR,
PUTHUSSERY HOUSE,
PAZHASSI AMSOM,
KUZHIKKAL DESOM.
5 CHANDROTH RAVEENDRAN @ RAVI,
AGED 55 YEARS,
S/O. KUNHIRAMAN,
K.K.R.NIVAS,
PAZHASSI AMSOM,
MANAKAI DESOM.
6 PULLANHIYODAN SURESH BABU @ BABU,
AGED 49 YEARS,
S/O. BALAN,
KARAKANDI HOUSE,
PAZHASSI AMSOM,
KARAYATTA DESOM.
7 MAILAPRAVAN RAMACHANDRAN,
AGED 43 YEARS,
S/O. KUNHIRAMAN NAMBIAR,
CHEMATHAKANDY HOUSE,
PAZHASSI AMSOM,
KUZHIKKAL DESOM.
8 K.BALAKRISHNAN @ BALAN,
AGED 50 YEARS,
S/O. RAMAN NAIR,
KALLIPARAMBATH HOUSE,
PAZHASSI AMSOM,
KUZHIKKAL DESOM.
Crl.A.(V)No.309/2014 &
Crl.R.P.No.1270/2013
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BY ADVS.
P.M.RAFIQ
P.VIJAYA BHANU (SR.)
SRUTHY N. BHAT
M.REVIKRISHNAN
MITHA SUDHINDRAN
RAHUL SUNIL
AJEESH K.SASI
POOJA PANKAJ
RESPONDENTS/COMPLAINANT & FORMAL PARTY:
1 STATE OF KERALA,
TO BE REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
2 STATION HOUSE OFFICER,
MATTANNUR POLICE STATION.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 21.01.2025, ALONG WITH CRA(V).309/2014, THE COURT
ON 29.01.2025 DELIVERED THE FOLLOWING:
Crl.A.(V)No.309/2014 &
Crl.R.P.No.1270/2013
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C.S.SUDHA, J.
----------------------------------------------------------
Criminal Appeal (V) No.309 of 2014
&
Criminal Revision Petition No.1270 of 2013
----------------------------------------------------------
Dated this the 29th day of January 2025
JUDGMENT
The aforesaid criminal revision petition under Section 401
read with Section 397 Cr.P.C. has been filed by the
appellants/accused in Crl.A.No.67/2007 on the file of the Court of
Session, Thalassery, which appeal in turn was against the judgment
dated 07/02/2007 of the Principal Assistant Sessions Judge,
Thalassery in S.C.No.202/1997, in which case accused persons 1 to
8 were found guilty and sentenced for the offences punishable under
Sections 143, 147, 326, 342 and 307 IPC. Accused nos. 1, 6 and 8
were also convicted and sentenced of the offence punishable under
Section 148 IPC. Against the said judgment, they filed Crl.Appeal
No.67/2007 which was dismissed by the impugned judgment
confirming the sentence of the trial court. Aggrieved by the
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judgment in Crl.Appeal No.67/2007 dated 10/06/2013, the criminal
revision petition has been filed by accused nos.1 to 8. Crl.Appeal
(V) No.309/2014 under the proviso to Section 372 Cr.P.C. has been
filed by PW1, the injured against the judgments in S.C.No.202/1997
and Crl.Appeal No.67/2007.
2. The prosecution case is that accused 12 in number
who are CPI(M) workers and local leaders, hatched a conspiracy to
murder PW1, the upa karyavahak of RSS. In furtherance of the
conspiracy, on 25/01/1994 at about 8:30 p.m., A1 to A8 formed
themselves into an unlawful assembly armed with deadly weapons
like iron rod, crowbar, chopper etc., wrongfully restrained PW1 and
hacked him several times due to which both his legs were severed.
The accused persons also hurled a country made bomb at the place
of occurrence to create a situation of terror in the area so that
nobody would come to the rescue of PW1. Hence, as per the final
report, accused persons 1 to 12 were alleged to have committed the
offences punishable under Sections 143, 147, 148, 120B, 342, 326,
307 read with Section 149 IPC and Sections 3 and 5 of the
Explosive Substances Act, 1908 (the Act).
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3. Crime No.18/94, Mattannur police station, was
registered by PW5, Assistant Sub Inspector of police, Mattannur,
that is, Ext.P6 FIR, based on Ext.P1 FIS of PW1. The initial
investigation was conducted by PW14, Dy.S.P., Thalassery. During
the course of his investigation, Sections 3(1), (2) and (3) of the
Terrorists and Disruptive Activities (Prevention) Act, 1987 was also
incorporated. The case records were transferred to the designated
TADA court, Thiruvananthapuram. Later the offences alleged
under TADA were deleted by the investigating agency and case
records were sent back to the jurisdictional magistrate. Further
investigation was conducted by PW15, Circle Inspector of police,
Mattannur, and thereafter by PW16, C.I., Mattannur, who
completed the investigation and submitted the final report/charge
sheet against the accused persons alleging the commission of the
offences punishable under the aforementioned Sections.
4. On appearance of all the accused persons, the
jurisdictional Magistrate after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C., committed the
case to the Court of Session, Thalassery. Thereafter the case was
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made over to the Principal Assistant Sessions Judge, for trial and
disposal. The trial court framed a charge for the offences
punishable under Sections 143, 147, 148, 342, 326, 307, 120B read
with Section 149 IPC and Sections 3 and 5 of the Act, which was
read over and explained to the accused persons, to which they
pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW16 and
Exts.P1 to P16 were marked in support of the case. After the close
of the prosecution evidence, the accused persons 1 to 12 were
questioned under Section 313(1)(b) Cr.P.C. regarding all the
incriminating circumstances appearing against them in the evidence
of the prosecution. The accused persons denied those circumstances
and maintained their innocence.
6. As the trial court did not find it a fit case to acquit
the accused persons under Section 232 Cr.P.C., they were asked to
enter on their defence and adduce evidence in support thereof.
DW1 to DW3 were examined and Exts.D1 series to D3 series were
marked on behalf of the accused persons.
7. On a consideration of the oral and documentary
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evidence and after hearing both sides, the trial court by judgment
dated 07/02/2007 in S.C.No.202 of 1997, found no evidence to find
accused persons 9 to 12 guilty of the offences charged against them
and hence they were acquitted under Section 235(1) Cr.P.C.
However, accused persons 1 to 8 were found guilty of the offences
punishable under Sections 143, 147, 326, 342 and 307 IPC and
hence A1 to A8 have been sentenced to undergo rigorous
imprisonment for three months for the offence punishable under
Section 143 IPC ; rigorous imprisonment for six months for the
offence punishable under Section 147 IPC ; rigorous imprisonment
for one year for the offence punishable under Section 342 IPC ;
rigorous imprisonment for five years for the offence punishable
under Section 326 IPC and with fine of ₹5,000/- and in default to
rigorous imprisonment for one year and rigorous imprisonment for
seven years with fine of ₹20,000/- and in default rigorous
imprisonment for two years for the offence punishable under
Section 307 IPC. A1, A6 and A8 have also been convicted and
sentenced for the offence punishable under Section 148 IPC to
rigorous imprisonment for one year. The sentences have been
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directed to run concurrently. A1 to A8 have been acquitted under
Section 235(1) Cr.P.C. of the offences punishable under Section 3
and 5 of the Act. The fine amount of ₹25,000/- each, if realized, has
been directed to be paid as compensation to PW1 under Section
357(1)(b) Cr.P.C. Set off under Section 428 Cr.P.C. has also been
allowed. Aggrieved, A1 to A8 filed Crl.A.No.67/2007 which has
been confirmed by the impugned judgment. Hence, the revision by
A1 to A8.
8. The appeal has been filed by PW1, the victim,
under the proviso to Section 372 Cr.P.C. aggrieved by the acquittal
of accused nos.9 to12 and by the inadequacy of the sentence given
to A1 to A8. Admittedly, PW1 did not challenge the judgment of
the trial court before the appellate Court. If he was aggrieved by the
acquittal of A9 to A12 or against the inadequate compensation
granted, he ought to have preferred an appeal before the Sessions
Court as provided under the proviso to Section 372 Cr.P.C., which
course has apparently not been followed. Moreover, it is only the
State who can file an appeal under Section 377 Cr.P.C. on the
ground of inadequacy of the sentence. That being the position, the
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aforesaid appeal filed by PW1, the injured before this court is held
to be not maintainable.
9. Now coming to the merits of the revision filed by
the accused persons. It was quite strenuously and persuasively
argued by the learned senior counsel Sri. P. Vijaya Bhanu for A1 to
A8 assisted by advocate Sruthy N. Bhat, that apart from the oral
testimony of PW1, there is only the testimony of PW2, a RSS
worker, who is clearly an interested witness. No independent
witnesses have been examined to prove the prosecution case. Ext.P1
FIS does not refer to the overt acts of the accused persons. Even
Ext.P2, which is the 164 statement of PW1, does not refer to the
overt acts of the accused. It is only in the box that PW1 has
described the alleged overt acts of each of the accused persons,
which is an improvement made to the prosecution case. PW1 was
taken to the hospital by his party workers and not by PW5 as
claimed by the prosecution. PW1 was instructed by his party to give
the name of the accused persons and thus A1 to A8 who are
innocent, came to be falsely implicated in the present crime. The
weapons alleged to have been used for the assault have not been
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recovered by the police. The aforesaid defects must enure to the
benefit of the accused persons, and they be given the benefit of
doubt. Per contra it was submitted by the learned Public Prosecutor
that the materials on record are more than sufficient to prove the
prosecution case and that no interference into the impugned
judgment is called for.
10. Before I go into the arguments advanced, the
scope of revision also needs to be kept in mind. The scope for
appeal and revision are different. An appeal is a continuation of the
proceedings; in substance the entire proceedings are before the
appellate court which can review the evidence subject to certain
well-defined principles. The scope of revision is, however, different,
as would be clear from the scheme of Section 397 Cr.P.C. A
revisional authority cannot review the evidence unless the statute
expressly confers that power. Here the Section does not confer such
power. The provisions contained in Section 395 to Section 401
Cr.P.C. read together do not indicate that the revisional power of the
High Court can be exercised as second appellate power. In revision,
the High Court can consider the correctness, legality or propriety of
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any finding, sentence or order recorded or passed and as to the
regularity of any proceeding of any inferior court. However, this
jurisdiction is not exercised in every case of impropriety or illegality
unless it causes a failure of justice. As a broad proposition, this
jurisdiction may be exercised where - a) the decision is unjust and
unfair ; b) the decision is grossly erroneous; c) there is no
compliance with the provisions of law; d) finding of fact effecting
the decision is not based on evidence; e) material evidence of the
parties is not considered and f) judicial discretion has been
exercised arbitrarily or perversely. The High Court in revision is
exercising supervisory jurisdiction of a restrictive nature and
therefore it would be justified in refusing to re-appreciate the
evidence for the purpose of determining whether the concurrent
findings of fact reached by the trial court and the appellate court are
correct (Duli Chand v. Delhi Administration, 1975 KHC 831 :
1975 (4) SCC 649).
11. Having thus reminded myself of the law on the
point, I will presently consider whether there has been any
impropriety, illegality or irregularity committed by the trial court or
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the appellate court causing failure of justice, for which I shall
briefly refer to the evidence of the material witnesses on record.
According to PW1, the injured on 25/01/1994 at about 08:30 p.m.
when he alighted from a bus at the place called Uruvachal, A1 to A8
surrounded him. A1 Sreedharan and A3 Rajan threatened him by
saying that he would be taught a lesson (നനിനന ശരനിയയാകക്കുനമെടയാ).
A3 Rajan caught him by his neck and A4 Krishnan master caught
him by his right hand. A5 Ravi master caught hold of his left hand;
A2 Nanu caught hold of his right leg and A7 Chandran caught hold
of his left leg. He was then dragged and laid on the road. A1
Sreedharan and A6 Babu with choppers repeatedly hacked on both
his legs, at which time A8 Balan with a chopper inflicted injuries on
his head. PW1 identified A1 to A8 by specifically referring to their
overt acts. According to PW1, he could not even budge due to the
combined attack by the accused persons. After chopping off his
legs, a bomb was thrown at him which exploded with a loud noise.
At the time of the incident, there was streetlight and light from the
shop rooms in the locality. When the bomb was hurled, all the
people in the locality ran away and no one came forward to help
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him. The shopkeepers immediately downed their shutters and fled
from the place. PW1 further deposed that the place of occurrence is
a strong hold of CPI(M) and therefore nobody dared to come
forward to help him. When he attempted to stand up, he fell and
then he realised that both his legs had been severed. He lost
consciousness. He regained consciousness in the hospital at
Thalassery. Thereafter, the police recorded Ext.P1 statement. His
statement was also recorded by PW9, the Additional Chief Judicial
Magistrate, Thalassery, which has been marked as Ext.P2. From the
hospital at Thalassery, he was referred to the Medical College
Hospital, Kozhikode for expert treatment. He was treated for two
months and discharged on 26/03/1994. Surgery was conducted on
both his legs and thereafter artificial limbs fitted.
11.1. PW1 deposed regarding the motive of the attack
also. According to him, all the accused involved in the incident are
CPI(M) and DYFI workers. He is the district upa karyavahak of
RSS, Kannur District. He was a member of the SFI during his
school and college days. A6 and A11 were his colleagues.
However, in 1983 he joined the RSS. Since then, the accused
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persons and other Marxist party workers have been maintaining a
hostile attitude towards him. Before the incident in this case, on
Bharath bandh day the CPI workers removed a cement bench
constructed by the RSS workers for a bus shelter and used it for
causing obstruction on the road. The RSS workers interfered in the
matter and took back the cement bench to the bus shelter. This
resulted in an altercation between the RSS workers and CPI(M)
workers. The RSS workers including PW1 were beaten up by the
CPI(M) workers. After the said incident, one Janardhanan, a
CPI(M) worker was attacked at Mattannur, in which case he has
been implicated as an accused.
11.2. PW2 supports the prosecution case. He also spoke
about the attack of PW1 by the accused persons. On seeing the
attack, he became frightened and hence ran away. While running
away, he heard a bomb exploding.
11.3. PW5, Assistant Sub Inspector, deposed that on
25/01/1994 at about 08:30 p.m., he received a telephonic message
that a person who had sustained injuries was lying on the road at
Uruvachal. He, along with another Head Constable proceeded to
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the place in the departmental jeep, where he found PW1 lying on
the road with injuries to his head and legs. All the shops in the
locality were found closed. There was streetlight at the place of
occurrence. No one was available for help. So he, along with the
Head Constable took the injured in the jeep to the hospital. The
severed legs were also taken in the jeep. The injured was first taken
to a hospital at Koothuparamba. As there was no doctor available in
the said hospital, PW1 was taken to a hospital at Thalassery. First
aid was given to PW1. At about 09:45 p.m. when PW1 regained
consciousness, he recorded Ext.P1 FIS of PW1. The doctor
informed him that the condition of PW1 was quite critical and that
his statement needs to be recorded. Therefore, he approached PW9,
the Additional CJM and submitted a requisition. PW9 immediately
arrived at the hospital and recorded Ext.P2 statement. After
entrusting the severed legs to the doctor, he returned to Mattannur
station and registered the crime based on Ext.P1 FIS given by PW1.
The FIR alleging the commission of the offences punishable under
Section 143, 147, 148, 307 read with Section 149 IPC and Section 3
of the Act has been marked as Ext.P6. PW5 further deposed that
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since PW1 could not affix his signature, his thumb impression had
been taken in Ext.P1 FIS. PW5 also deposed that PW1 had stated
the names of the persons involved in the attack in Ext.P1.
11.4. PW1 was examined by Dr. Balamani who issued
Ext.P13 wound certificate. The said witness was reported to be no
more and so the wound certificate was marked through PW12, who
identified her signature in the same. PW12 deposed that he had
worked as a surgeon at the Government Hospital, Thalassery, and
that Dr. Balamani was his colleague. He deposed that he had seen
the patient mentioned in Ext.P13 at the hospital. After first aid and
necessary management, the patient was referred to the medical
college hospital. The injuries noted are-
"(1) Traumatic amputation of lower 1/3rd of left leg,
bones clearly cut, muscles pulled inwards, skin edges
clean, regular anteriorly, irregular posteriorly,
bleeding profusely.
(2) Traumatically amputated at the middle of right
leg c c both bones falling out-bleeding profusely
-Bones clearly cut .
3) Fresh lacerated injury ....cm (not legible) from the
medial aspect of right eyebrow extending to the
lateral end of his eyebrow through its upper part.
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4) Fresh lacerated injury of right palm 3cm long
extending to the underlying structure cc# at the
Metacarpo phalangeal joint."
11.5. PW11, Lecturer, Surgery, Medical College
Hospital, Kozhikode deposed that on 26/01/1994 he had examined
PW1, who was discharged on 26/03/1994. Ext.P12 is the discharge
certificate. The testimony of PW11 shows that both the legs of PW1
were amputated from below the knee. According to PW11, had
medical aid not been given timely, the injuries would have proved
fatal. The injuries seen in PW1 could have been caused by hacking
with a chopper. PW1 sustained 50% disability on account of the
amputation of his legs.
12. It is true that the overt acts of each of the
accused persons have not been mentioned in Ext.P1 FIS or in
Ext.P2 164 statement. But the FIS/FIR is not supposed to be an
encyclopedia of the entire event. The essential material facts alone
need to be disclosed in the FIR. (Budh Singh v. State of M. P:
2007 KHC 4257 : 2007 (10) SCC 496). Moreover, as rightly
pointed out by the trial court, PW1 gave Ext.P1 FIS and Ext.P2
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statement within hours of the incident, in which incident both his
legs were severed, and he was profusely bleeding. Materials have
come on record to show that PW1 was lying unconscious and
unattended at the scene of occurrence for some time, at which
time also he must have lost considerable amount of blood. His
condition seems to have been quite critical and that appears to be
the reason why the police got his statement recorded by PW9.
That being the condition of PW1, it cannot be expected of him to
give a detailed description of the incident specifying each of the
overt acts of the accused persons. Though the overt act of each
accused is not stated in Ext.P1 FIS and Ext.P2 statement, they do
refer to the names of all the accused persons, i.e. A1 to A8.
Though the defence has taken up the contention that it was the
friends of PW1, who are RSS workers, who had taken him to the
Hospital, no materials have come on record to substantiate the
said version. On the other hand, the testimony of PW5 which has
not been discredited shows that the police had arrived at the spot
as per telephonic information received and had taken PW1 to the
Hospital. The incident took place on 25.01.1994 at 8.30 p.m.
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Ext.P1 was recorded on the same day at 9.45 p.m. and Ext.P2 was
recorded at 10.13 p.m. The FIR is seen to have been lodged at the
quickest possible time. Finding the condition of PW1 to be quite
critical on the advice of the doctor, the police are seen to have
taken prompt steps to get his statement recorded. PW5 deposed
that while being taken to the Hospital, PW1 was unconscious and
that he regained consciousness only when first aid was given at
the hospital. Before Ext.P1 FIS and Ext.P2 statements were
recorded, no materials have come on record to show that there
was the interference of a 3rd person to tutor PW1 regarding the
names of the assailants to be given to the police.
13. Apart from PW2, it is true that there are no other
witnesses to support the prosecution case. According to the
defence, PW2 is an interested witness and hence his testimony
cannot be relied on. But the testimony of PW1 and PW2 show
that all the other people available in the locality took to their heels
and the shop owners downed their shutters and left the place as
the accused persons had hurled a bomb creating a situation of
terror. Hence, there appears to have been no witness apart from
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PW2. Even assuming PW2 to be an RSS worker, the same is no
reason to disbelieve his testimony, because nothing was brought
out to discredit his testimony. Moreover, the term 'interested'
postulates that the witness must have some interest in having the
accused somehow or the other convicted for some animosity or
for some other reasons (Kartik Malhar v. State of Bihar,
(1996)1 SCC 614). There is no rigid or inflexible rule that the
evidence of a related or interested witness shall be viewed with
suspicion under all circumstances. While acting on the evidence
of an interested witness, it is only that the court must act with
discerning circumspection and utmost prudence.
14. I went through the testimony of the defense
witnesses also. The same does not in any way help in disproving
the prosecution case or discredit the testimony of PW1 and PW2.
15. It is true that the weapons used for the attack
were not recovered by the police. But, recovery of weapon(s)
used in the commission of an offence is not a sine qua non to
convict the accused (See Mritunjoy Biswas v. Pranab alias Kuti
Biswas, AIR 2013 SC 3334 ; Sanjeev Kumar Gupta v. State of
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U.P., (2015)11 SCC 69 ; Yogesh Singh v. Mahabeer Singh,
(2017)11 SCC 195 ; Rakesh v. State of U.P., (2021)7 SCC 188 ;
State through the Inspector of Police v. Laly alias
Manikandan, AIR 2022 SC 5034). Here the medical evidence
supports the testimony of PW1 regarding the injuries sustained by
him. PW1 was repeatedly hacked by the accused persons with
some sharp edge weapon. After hacking PW1 leading to both his
legs being severed, they made sure that nobody approached to
rescue him by hurling a bomb which burst with a loud noise. The
intention seems to have been to let PW1 bleed to death. Therefore,
the intention was certainly to cause the death of PW1. Fortunately
for PW1 and unfortunately for the accused, the former survived
the attack to tell the tale. There are no reasons to disbelieve the
version of PW1 and PW2 and hence I find no infirmity or
illegality in the findings of the trial court which has been rightly
confirmed by the appellate court.
16. Now coming to the sentence that has been
imposed on the accused persons. It was pointed out by the learned
counsel for PW1 that the compensation awarded is too meagre
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and hence the court may enhance the compensation for which it
has got ample power. In support of the argument reference was
made to the dictum in Neeraj Sharma v. State of Chhattisgarh,
2024 KHC 6004 : AIR 2024 SC 271 in which case the injured
therein had lost his left leg below his knee. The apex court
awarded compensation of ₹5,00,000/- under Section 357 (a) in the
place of ₹1,00,000/- that was ordered by the High Court. Relying
on the aforesaid dictum, the argument of the learned counsel is
that this Court has got ample power to enhance the compensation
to be given to PW1. However, the learned senior counsel
appearing for the appellants/A1 to A8 made a fervent plea not to
enhance the compensation. It was also pointed out that all the
accused persons are senior citizens above the age of 75 and hence
a lenient view may be taken regarding the substantive sentence of
imprisonment imposed.
17. I do not think that the accused persons deserve
any sort of leniency in the light of the overt acts committed by
them. The incident did not happen in a fit of rage/anger or on a
sudden provocation. The attack seems to have been premeditated
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and well planned. As noticed earlier and at the risk of repetition, it
needs to be noted that not only had A1 to A8 hacked PW1
repeatedly leading to both his legs being severed, they also made
sure that nobody approached PW1 to rescue/save him. This makes
the offences all the more grave/severe. The attack seems to have
been made only because PW1 switched loyalty and joined a rival
party. In paragraph no.33 of the trial court judgment it is stated that
PW1 a charismatic and efficient leader was making his mark in the
locality and his efforts helped in spreading and strengthening the
roots of his party in the area. The accused persons belonging to a
rival political party just could not accept/digest it. It seems to have
become the norm of the day of some to silence political opponents
by either killing or maiming them severely for the rest of their life.
If this is not intolerance, then what is? This sort of activity by any
person, let alone a political party can at no cost be encouraged and
such offences will have to be dealt with an iron hand. Political
parties have to deal with or finish their political opponents in the
electoral battlefield and not engage in bloodshed and remove the
opponents from the face of the earth itself. This Court would
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certainly have considered the fervent pleas made by the learned
senior counsel appearing for the accused considering the age of the
accused persons. However, the facts and circumstances of the case
deter me from doing so in the light of the brutal, dastardly and near
fatal attack on PW1. If the sentence is in any way brought down,
that would only send a wrong message to society at large and
encourage the commission of such offences in the future also. PW1
was a young man aged 27 years at the time of the incident. 31
years have elapsed. He is still awaiting justice. Therefore, this is
not a case in which any sort of interference is liable to be made
especially in revision when no illegality, irregularity has been
brought out from the materials on record. In the light of the
gravity of the offence committed, the sentence of seven years
appears to be very light. However, the State, for reasons best
known to them, has not filed an appeal under Section 377 Cr.P.C.
Since both the legs of PW1 have been amputated, it would only be
just and proper that the compensation amount be increased
appropriately. In the facts and circumstances of the case and
considering the fact that 31 years have elapsed since the incident,
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A1 to A8 are directed to pay compensation of ₹50,000/- each to
PW1 under Section 357(3) Cr.P.C. The substantive sentence of
imprisonment imposed is confirmed and is not enhanced in the
exercise of the inherent powers of this Court in the light of the age
of the accused and as the compensation amount has been
enhanced. The sentence of fine imposed by the trial court and
confirmed by the appellate court is set aside.
In the result, the criminal revision petition is disposed of as
aforesaid. The Criminal Appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
SD/-
C.S.SUDHA
JUDGE
ak
