Kerala High Court
Rajan vs State Of Kerala on 11 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.1575/2006
1
2025:KER:41100
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA,
1947
CRL.REV.PET NO. 1575 OF 2006
AGAINST THE JUDGMENT DATED IN Crl.A NO.73 OF 2004
OF ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA
ARISING OUT OF THE JUDGMENT DATED IN CC NO.469 OF 1999 OF
JUDICIAL MAGISTRATE OF FIRST CLASS ,RANNY
REVISION PETITIONER/ACCUSED 1 &2:
1 RAJAN, S/O. APPAI, THADATHIL HOUSE,
THOMPIKANDAM, CHETHACKAL.
2 JAMES, S /O.DAMODHARAN, OLICKAL, THOMBIKANDAM,
CHETHAKKAL.
BY ADV SHRI.M.V.S.NAMPOOTHIRY
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
SRI.SANGEETHA RAJ N.R-PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 11.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.1575/2006
2
2025:KER:41100
ORDER
This revision petition has been filed challenging the
concurrent finding of conviction and sentence under Sections
326 and 323 read with Section 34 of the IPC.
2. The petitioners faced trial for the offences
punishable under Sections 326 and 323 read with Section 34
of the IPC before the Judicial First Class Magistrate Court,
Ranny (for short, the trial court) in C.C.No.469/1999. The
prosecution case in short is that on 27.7.1999 at 6.30 pm, in
furtherance of their common intention of voluntarily causing
grievous hurt to CW1/defacto complainant due to their
previous enmity towards him, the 1 st accused hit him with a
stone on his upper lip and thereby he lost one of his teeth on
the upper jaw and the 2nd accused kicked on his belly and
thereby committed the offences.
3. Before the trial court, PW1 to PW7 were
examined on the side of the prosecution and Exts.P1 to P4 and
P1(a) were marked. MO1 was identified. After trial, the trial
court found the petitioners guilty under Sections 326 and 323
read with Section 34 of the IPC and they were convicted for
the same. They were sentenced to undergo rigorous
2025:KER:41100
imprisonment for six months each for the offences punishable
under Section 323 read with 34 of the IPC and to undergo
rigorous imprisonment for one year each and to pay a fine of
₹5,000/- each, in default of payment of fine amount to suffer
simple imprisonment for three months each for the offences
punishable under Section 326 read with Section 34 of the IPC.
The petitioners challenged the conviction and sentence before
the Additional Sessions Court (Ad hoc) Fast Track Court-II,
Pathanamthitta (for short, the appellate court) in
Crl.A.No.73/2004. The appellate court dismissed the appeal.
This revision petition has been filed challenging the judgments
of the trial court as well as the appellate court.
4. I have heard Sri. M.V.S. Nampoothiry, the
learned counsel for the petitioners and Sri. Sangeetha Raj
N.R., the learned Public Prosecutor.
5. The learned counsel appearing for the
petitioners impeached the finding of the trial court as well as
the appellate court on appreciation of the evidence and
resultant finding as to the guilt. The learned counsel
submitted that the conviction was solely based on the
evidence of PW2 and PW3 who are the interested witnesses.
He further submitted that an independent occurrence witness,
2025:KER:41100
PW1 did not support the prosecution case. The counsel also
submitted that there are material discrepancies in the
evidence of PW1, PW3 and PW4. It is further submitted that
the non examination of the investigating officer has caused
prejudice to the petitioners. The learned Prosecutor, on the
other hand, supported the findings and verdict handed down
by the trial court as well as the appellate court and argued
that necessary ingredients of Sections 326 and 323 of the IPC
have been established and the prosecution has succeeded in
proving the case beyond reasonable doubt. The learned
Prosecutor further submitted that reappreciation of evidence is
not permissible in revision.
6. The prosecution mainly relied on the oral
testimony of PW2, PW3, PW4 and Ext.P2 to prove the incident
and to fix the culpability on the accused. PW2 is the injured.
He gave Ext.P1 first information statement. He deposed that
on 27.7.1999 at about 6.30 pm when he reached the road
lying near the residential house of Oommen Mathai, the
petitioners came there and told him that they were waiting for
him. Then the 1st petitioner hit him with a stone on his upper
lip and he lost one of his teeth and the nearby tooth was
broken. He further deposed that he fell down on the ground
2025:KER:41100
and the 2nd petitioner kicked on his belly. He also deposed
that he went to the hospital and from there he gave the FIS to
the police. He identified MO1 stone used by the petitioners for
inflicting injuries. PW3 is the son-in-law of of PW2. He
deposed that on 27.7.1999 at about 6.30 pm when he reached
the road lying near the residential house of Oommen Mathai,
he heard a cry and immediately he rushed to the spot. Then
he saw PW2 lying on the road and the petitioners standing
near him. He further deposed that the 1 st petitioner was
carrying a stone in his hand. He also deposed that he saw the
2nd petitioner kicking on the belly of PW2. It is further stated
that when the petitioners saw him, they left the place. Even
though PW2 and PW3 were cross examined at length, nothing
tangible could be extracted from their version to discredit their
testimony. PW2, the injured witness has clearly given
evidence as to the manner in which the petitioners attacked
him and the part of the body where the injuries were inflicted.
It is settled that the evidence of the injured witness has to be
given weightage. Both PW2 and PW3 consistently gave
evidence in tune with the prosecution case. Hence, the fact
that another independent witness, PW1 did not support the
prosecution case assumes no significance. The evidence of
2025:KER:41100
PW2 and PW3 got corroboration from the medical evidence
adduced through PW4 and Ext.P2 wound certificate. PW4
deposed that he treated PW2 and issued Ext.P1 wound
certificate. He noted five injuries on the body of PW2.
According to him, injury Nos.1 and 2 are corresponding to the
injuries alleged to have been inflicted by the petitioners. On a
careful consideration of the medical evidence adduced by the
prosecution, it can be seen that the injuries noted in Ext.P2
wound certificate and spoken to by PW4 clearly corroborate
the injuries alleged to have been inflicted by the petitioners.
7. The learned counsel for the petitioners
submitted that there are material discrepancies in the
evidence of PW2 and PW4 with regard to the time PW4 treated
PW2. The incident took place at 6.30 pm on 27.7.1999.
Ext.P2 wound certificate and the evidence of PW4 would show
that PW4 treated PW2 only at 8.30 am on 28.7.1999. But
PW2 deposed that he went to the hospital immediately after
the alleged incident and he was examined and treated by the
doctor at about 9.30 pm on the date of the alleged incident.
It is true that discrepancies as argued by the learned counsel
for the petitioners are there. However, the trial court as well
as the appellate court on appreciation of evidence found that
2025:KER:41100
the said discrepancies are insignificant since the prosecution
has established the incident with concrete evidence. Also, the
trial court as well as the appellate court found that no
prejudice has been caused to the petitioners on account of the
non examination of the investigating officer.
8. It is settled that it is not open to the High
Court to exercise the revisional power as the second appellate
forum. It has been consistently held by the Supreme Court
that the jurisdiction of the High Court in revision is severely
restricted and it cannot embark upon re-appreciation of
evidence. Since there are concurrent findings of two courts,
this Court would be circumspect in invoking the revisional
powers under Sections 397 read with 401 of Cr.P.C. It is only
if the decision rendered by the trial court as well as the
appellate court can be said to be either perverse, arbitrary or
capricious, this Court can invoke such powers. I have carefully
gone through the entire records, evidence, proceedings and
the judgments of the trial court as well as the appellate court.
I find no impropriety or illegality therein warranting
interference on the finding of conviction under the exercise of
revisional powers vested with the courts.
9. What remains is the sentence. The learned
2025:KER:41100
counsel for the petitioners submitted that the sentence
imposed is excessive. The defacto complainant has lost one of
his teeth in the incident. The case is of the year 2006. The
petitioners have been undergoing the trauma of the
prosecution for the last 19 years. In these circumstance, I am
of the view that the substantive sentence imposed by the trial
court and confirmed by the appellate court can be reduced to
half. Hence, the substantive sentence imposed by the trial
court and confirmed by the appellate court for the offence
under Section 326 read with 34 of IPC is reduced to six
months and the substantive sentence imposed under Section
323 read with 34 of IPC is reduced to one month, retaining the
fine amount and default sentence.
The Crl.R.P is allowed in part as above.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
