Kerala High Court
Giridharan vs State Of Kerala on 9 July, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.109/2013
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
CRL.REV.PET NO. 109 OF 2013
AGAINST THE JUDGMENT DATED 14.12.2012 IN Crl.A NO.128 OF
2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-III, THALASSERY
ARISING OUT OF THE JUDGMENT DATED 18.02.2006 IN CC NO.94 OF 2004
OF CHIEF JUDICIAL MAGISTRATE COURT,THALASSERY
REVISION PETITIONERS/APPELLANTS 1 & 2/ACCUSED NO.1 & 2:
1 GIRIDHARAN
S/O.PADMANABHAN, AGED 43 YEARS, BILL COLLECTOR,
MANIYOOR AMSOM, VESALA DESOM, KANNUR DISTRICT.
2 PRABHAKARAN
S/O.KORAN, AGED 51 YEARS, COOLIE, MANIYOOR AMSOM,
VASALA DESOM, KANNUR DISTRICT.
BY ADV SHRI.M.SASINDRAN
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
SUB INSPECTOR OF POLICE, CHAKKARAKKAL POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI.SANGEETHA RAJ N.R-PP
THIS CRIMINAL REVISION PETITION BEEN FINALLY HEARD ON
09.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O R D E R
The revision petitioners are the accused Nos. 1 and 2 in CC
No. 94 of 2004 on the files of the Chief Judicial Magistrate Court,
Thalassery (for short, the trial court). They along with accused Nos. 3
to 7 faced trial for the offences punishable under Sections 143, 147,
148, 341, 323, 324 r/w Section 149 of IPC.
2. The accused are admittedly sympathizers of CPM and the
defacto complainant/injured is a Congress worker. The prosecution
case in short is that, on 10/05/2004, at 09.30 a.m., the accused Nos. 1
to 7, on account of their political rivalry towards PW1, formed an
unlawful assembly, armed with deadly weapons at the public pathway
at Chundayilmoola in Vesala Desom, Maniyoor Amson and in
furtherance of the common object of the assembly, wrongfully
restrained and assaulted him on his face and chest with hands and
MO1 stone.
3. Before the trial court, PWs 1 to 6 were examined and
Exts.P1 to P5 were marked on the side of the prosecution. MO1 was
identified. After trial, the trial court found accused No.1 guilty for the
offences punishable under Sections 143, 148, 341, 323 and 324 r/w
Section 149 of IPC, accused No.2 under Sections 143, 148, 341 and
324 r/w Section 149 of IPC, accused Nos.3 to 7 under Sections 143,
147, 341, 323 r/w 149 of IPC and they were convicted for the said
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offences. Accused No.1 was sentenced to undergo simple
imprisonment for six months under Section 143 r/w Section 149 of IPC,
two years each under Sections 148 and 324 r/w Section 149 of IPC,
one year under Section 323 r/w Section 149 of IPC and also to pay a
fine of `500/- and in default to undergo imprisonment for one week
under Section 341 r/w Section 149 of IPC. Accused No.2 was
sentenced to undergo simple imprisonment for six months under
Section 143 r/w Section 149 of IPC, two years each under Sections 148
and 324 r/w Section 149 of IPC and to pay fine of `500/- and in default
to suffer simple imprisonment for one week under Section 341 r/w
Section 149 of IPC. Accused Nos.3 to 7 were sentenced to undergo
simple imprisonment for six months under Section 143 r/w Section
149 of IPC, one year each under Sections 147 and 323 r/w Section 149
of IPC and to pay a fine of `500/- in default to suffer simple
imprisonment for one week each under Section 341 r/w Section 149 of
IPC.
4. All the accused challenged the conviction and sentence of
the trial court before the Sessions Court, Thalassery (for short, the
appellate court) in Criminal Appeal No. 128 of 2006. The appellate
court set aside the conviction and sentence of accused Nos.3 to 7 and
they were acquitted. The Sessions Court also set aside the conviction
and sentence of the accused Nos. 1 and 2 under Sections 143 and 148
of IPC. The conviction of accused No.1 under Sections 323, 324 and
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341 was confirmed. He was sentenced to undergo simple
imprisonment for six months for the offence under Section 323 of IPC,
to undergo simple imprisonment for one year for the offence under
Section 324 of IPC and also to pay a fine of `500/- in default to
undergo simple imprisonment for one month for the offence under
Section 341 of IPC. The conviction of the accused No.2 under Sections
324 and 341 was confirmed. He was sentenced to undergo simple
imprisonment for one year and to pay a fine of `500/- for the offence
under Section 324 of IPC, in default to suffer simple imprisonment for
one month and to undergo simple imprisonment for one month for the
offence under Section 341 of IPC. This revision petition has been filed
by the accused Nos.1 and 2 challenging the judgments of the trial
court as well as the appellate court.
5. I have heard Sri. M.Sasindran, the learned counsel for the
petitioners and Sri.Sangeetha Raj, the learned Public Prosecutor.
6. The learned counsel for the petitioners submitted that the
evidence of PWs1 and 2 are contradictory to each other and ought not
have been relied on by the trial court as well as the appellate court to
convict the petitioners. The learned counsel further submitted that
PW2 is a sympathizer of Congress and hence he is an interested
witness. The learned counsel also submitted that there is no evidence
on record to show the size and nature of the stone used for the
commission of the offence and hence the offence under Section 324
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will not be attracted. On the other hand, the learned Public Prosecutor
supported the findings and verdict handed down by the trial court and
the appellate court and argued that necessary ingredients of Sections
324 and 341 of IPC had been established and the prosecution had
succeeded in proving the case beyond reasonable doubt.
7. The prosecution mainly relied on the evidence of PWs1, 2
and 3 to prove the incident and to fix the culpability on the accused.
PW1 is the injured. PW2 is the occurrence witness. PW3 is the Doctor
who treated PW1. PW1 deposed that while he was returning from the
polling booth after casting his vote, accused Nos.1 to 7 unlawfully
intercepted, restrained and assaulted him. He further deposed that
when he fell down, the petitioners hit him with MO1 stone. He also
deposed that on hearing his cry, people of the locality came to the
spot and the assailants left the spot. PW2 deposed in tune with the
evidence given by PW1. He deposed that he saw the accused
especially the petitioners attacking PW1. PW1 and PW2 identified the
accused, particularly the petitioners as well as MO1 weapon used for
the commission of the offence. Both of them deposed about the
manner in which the petitioners attacked PW1 and the parts of the
body where the injuries were inflicted. Even though PWs1 and 2 were
cross-examined in length, nothing tangible could be extracted to
discredit their testimony. The evidence of PWs1 and 2 gets
corroboration from the medical evidence. PW3 is the Doctor who
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treated PW1. Ext.P2 wound certificate was marked through him. The
evidence of PW3 would show that immediately after the incident, PW1
was treated by him. Ext.P2 wound certificate coupled with the
evidence of PW3 would show that PW1 had sustained injury in the
incident.
8. The trial court as well as the appellate court on
appreciation of evidence found that the prosecution evidence
described above is sufficient to establish that the petitioners
assaulted PW1 with MO1. It is settled that the jurisdiction of the High
court in revision is severely restricted and it cannot embark upon
reappreciation of evidence. I see no reason to interfere with the
finding of the trial court as well as the appellate court that the
prosecution has succeeded in proving beyond reasonable doubt that
the petitioners had assaulted PW1 with MO1 stone.
9. The learned counsel for the petitioners submitted that
there is no evidence to show that MO1 stone is an instrument which is
likely to cause death and hence the conviction of the petitioners under
Section 324 cannot be sustained. I find some force in the said
argument.
10. To attract Section 324 of IPC, the accused must have
intentionally caused hurt to another person and the said hurt must be
inflicted by one of the specified categories of instruments or means
outlined in the Section. The instruments specified in the Section
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consist of two categories. First category mentions instruments for
shooting, stabbing or cutting and the second category mentions any
instrument that, when used as a weapon of offence, is likely to cause
death. In this case, the instrument is a stone which was identified as
MO1. In every case, a stone need not constitute a dangerous weapon.
It would depend upon the facts of each case. The stone may fall under
Section 324 of IPC if it is of such a nature as to be likely to cause the
death of a person when used as a weapon of offence. In such a case,
the stone used for the commission of the offence by its very nature
should be such that one could reasonably predict that by its use as a
weapon of offence, death would be probable. Thus, the stone may
qualify as a dangerous weapon depending on its nature, size,
sharpness or its potential to cause death of a person ( Kumaran v.
State of Kerala 2025 KHC OnLine 704). As rightly argued by the
learned counsel for the petitioners, there is no evidence in this case to
prove the nature, size and sharpness of MO1 stone. Ext.P3 mahazar is
also silent about the same. None of the witnesses spoke about the
nature and details of the stone. MO1 stone was not shown to the
Doctor also. In the judgment of the appellate court, there is a finding
that MO1 stone was not recovered at the instance of PW1 or PW2.
There is no evidence to show that MO1 stone has the potential to
cause the death of a person. PWs1, 2 or 3 did not speak so. In short,
the prosecution failed to adduce evidence to prove that MO1 stone
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qualifies the expression 'any instrument which used as a weapon of
offence is likely to cause death' found in Section 324 of IPC. Therefore,
the conviction of accused Nos.1 and 2 under Section 324 of IPC cannot
be sustained. However there is evidence to show that the petitioners
voluntarily caused hurt to PW1. Hence, the petitioner No.2/accused
No.2 is liable to be convicted under Section 323 of IPC. Section 222(2)
of Cr.P.C allows conviction of an accused for minor offences even if
there is no specific charge for it as long as the evidence supports it.
Section 323 of IPC is a minor offence compared to Section 324 of IPC.
11. What remains is the sentence. The learned counsel for
the petitioners submitted that considering the entire facts and
circumstances of the case, the substantive sentence may be reduced
till the rising of the court. The evidence of PW3 coupled with Ext.P2
wound certificate would show that the injury sustained by PW1 is
minor in nature. PW3 in cross examination has admitted that the
contusions and abrasions mentioned in the wound certificate are
negligible in nature. The incident occurred due to the political rivalry.
The petitioners have been undergoing the trial of prosecution for the
last nineteen years.
12. Considering all these facts and circumstances, I am of the
view that the substantive sentence for the offence under Sections 323
and 341 of IPC can be confined till rising of the court. However, the
petitioners should be ordered to pay adequate compensation to PW1.
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13. In the light of the above discussion, the conviction of the
petitioners/accused Nos.1 and 2 under Section 324 of IPC is set aside.
They are convicted for the offence under Sections 323 and 341 of IPC.
They are sentenced to undergo imprisonment till rising of the court for
the offence under Section 341 of IPC. They are also sentenced to
undergo imprisonment till the rising of the court for the offence under
Section 323 of IPC and to pay a compensation of `25,000/- (Rupees
Twenty five thousand only) each to PW1, in default to suffer simple
imprisonment for three months each. The substantive sentence of
imprisonment till rising of the court shall run concurrently. The
petitioners shall appear before the trial court within one month from
today to receive the imprisonment till the rising of court and to
deposit the compensation.
Crl. Revision Petition is allowed in part as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
