Kerala High Court
Sathyan (Died) vs State Of Kerala on 20 June, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.822/2005
1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 20TH DAY OF JUNE 2025 / 30TH JYAISHTA, 1947
CRL.REV.PET NO. 822 OF 2005
AGAINST THE JUDGMENT DATED 6.1.2005 IN Crl.A NO.42 OF
1995 OF II ADDITIONAL SESSIONS COURT,THIRUVANANTHAPURAM
ARISING OUT OF THE JUDGMENT DATED 19.1.1995 IN CC NO.371 OF
1993 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA
REVISION PETITIONERS/APPELLANTS/ACCUSED 1 TO 4:
1 SATHYAN,
S/O KRISHNAN, KUNNIL VEEDU, MADANVILA DESOM,, AYUR
VILLAGE.
2 SURENDRAN,
S/O.VIDYADHARAN, VALIYAMOOLA VEEDU, WEST OF RAILWAY
STATION,, AKATHU MURI, VENNIYODE DESOM,
CHERUNNIYOOR, VILLAGE.
3 VIDHYADHARAN SO.PADMANABHAN OF DO.
-DO-
4 SUDARSHAN @ KOCHUMON
S/O.VIDHYADHARAN, OF DO.DO.
ADV.AMRIN FATHIMA, AMICUS CURIAE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
PUBLIC PROSECUTOR AT HIGH COURT OF KERALA,,
ERNAKULAM.
SRI.E.C.BINEESH-SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.822/2005
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ORDER
This revision petition has been filed challenging the
concurrent finding of conviction and sentence in a prosecution
under Sections 326 and 324 read with Section 34 of the IPC.
2. The petitioners are the accused in
C.C.No.371/1993 on the files of the Judicial First Class Magistrate
Court, Varkala (for short, the trial court). They faced trial for the
offences punishable under Sections 326 and 324 read with Section
34 of the IPC. The prosecution allegation in short is as follows:
PW1 and PW2 are brothers who were conducting an unlicensed
arrack shop at Akathumuri. On 13.1.1993 at about noon time, the
1st accused reached the arrack shop and demanded arrack on
credit. PW1 refused his demand. Provoked by this, he retreated
from there and returned to the shop after some time along with
the other accused. The 1 st accused and the 2nd accused were
armed with choppers and the 3rd and 4th accused were armed with
iron pipes. In furtherance of the common intention to cause
grievous injuries on PW1 and PW2, all the accused openly declared
that if PW1 would not supply arrack on credit to them, PW1 should
demolish and remove the arrack shop from that locality. On
hearing this, PW1 came out of the shop. At that time, the first
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accused inflicted three cut injuries on PW1 with a chopper on the
back side of his head, left palm and thumb. The 2 nd accused
inflicted cut injuries on the left shoulder, middle of the left
forearm, the left thigh and the knee of PW1 with a chopper.
Followed by this, the 3 rd and 4th accused inflicted blows on the left
knee and back side of the chest of PW1 with iron pipes resulting in
sustaining of fracture on his right knee and other injuries. When
PW2 rushed to the scene and intervened, the 1 st accused inflicted
two cut injuries on the middle of his forehead and backside of his
chest and the 4th accused inflicted a blow with an iron pipe on the
left palm. PW2 sustained injuries including fracture on his little
finger.
3. Before the trial court, PW1 to PW6 were
examined and Exts.P1 to P7 were marked. On the side of the
defence, Exts.D1 and D2 contradictions were marked. MO1 and
MO1(a) material objects were identified. After trial, the trial court
found all the accused guilty of the offences under Sections 326 and
324 read with Section 34 of IPC. They were sentenced to undergo
rigorous imprisonment for one year each under Section 326 of IPC
and to pay a fine of ₹2,000/- each, in default to suffer simple
imprisonment for six months each. They were also sentenced to
undergo simple imprisonment for six months each for the offence
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punishable under Section 324 of the IPC. The petitioners
challenged the conviction and sentence of the trial court before the
II Additional Sessions Court, Thiruvananthapuram in
Crl.A.No.42/1995. The appellate court confirmed the conviction
and sentence under Section 326 read with Section 34 of the IPC
and set aside the conviction and sentence under Section 324 read
with Section 34 of the IPC. This revision petition has been filed
challenging the judgments of the trial court as well as the
appellate court.
4. The counsel who originally filed vakalath for the
revision petitioners relinquished the vakalath. The petitioners did
not make any alternative arrangement for appearance. Hence,
Smt. Amrin Fathima was appointed as Amicus Curiae to assist the
court.
5. I have heard Sri. E.C. Bineesh, the learned Senior
Public Prosecutor. I place on record the appreciation for the
earnest assistance rendered by the learned Amicus Curiae.
6. The learned Amicus Curiae Smt. Amrin Fathima
impeached the finding of the trial court as well as the appellate
court as to the appreciation of evidence and the resultant finding
as to the guilt. The learned Amicus Curiae submitted that the
conviction was based only on the interested testimony of PW1 and
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PW2 and even though several occurrence witnesses were cited in
the final report, none of them were examined. The learned Amicus
Curiae also submitted that there was unexplained delay of two
days in lodging the FIR. She also submitted that the chopper used
for the commission of offence was not recovered. At any rate, the
substantive sentence imposed is excessive, submitted the Amicus
Curiae. On the other hand, the learned Senior Public Prosecutor
Sri. E.C. Bineesh supported the finding and verdict handed down
by the trial court as well as the appellate court and argued that
necessary ingredients of Section 326 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 impermissible in
revision.
7. The prosecution mainly relied on the evidence of
the occurrence witnesses, PW1, PW2 and PW4, the doctor who
examined PW1 and PW2, to prove the incident and fix the
culpability on the accused. PW1 and PW2 deposed in tune with the
prosecution case. According to PW1, in the morning at the date
and time of the incident, the 1st accused came to his shop for
drinking arrack and demanded the same on credit. He refused to
give arrack on credit as already some amount was due from him.
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Then the 1st accused abused him and left the shop. Thereafter at
about 1.30 pm, the first accused came to the shop armed with
chopper and iron pipes and assaulted him brutally with weapon.
When PW2 reached there and intervened, they inflicted injuries on
him as well. He further deposed that thereafter, he and PW2 were
taken to medical college hospital and admitted there. PW1
identified MO1 and MO1(a) as iron pipes used by the 3 rd and 4th
accused to inflict injuries on him and PW2. He also gave
description of the chopper used by the 1 st and 2nd accused to inflict
injuries on them. PW2 deposed in tune with the evidence tendered
by PW1. Even though PW1 and PW2 were cross examined in
length, nothing tangible could be extracted from their testimony to
discredit their version. The Amicus Curiae pointed out certain
discrepancies and contradictions in the evidence of PW1 and PW2.
But they are minor in nature and did not affect the fabric of
prosecution case. It is settled that the evidence of the injured
witness has to be given weightage. Hence, even in the absence of
examination of the independent witness, their evidence can very
well be relied on.
8. The evidence of the occurrence witnesses get
support from the evidence of the doctor who was examined as
PW4. Exts.P2 and P3 wound certificates were marked through
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him. The evidence of PW4 coupled with Exts.P2 and P3 would
prove that in the incident PW1 and PW2 sustained serious injuries
including fracture. The argument of the Amicus Curiae that the
chopper used for the commission of offence has not been
recovered assumes no significance inasmuch as the occurrence
witnesses gave clear evidence regarding the description of chopper
used for the commission of offence. Two days' delay in filing the
FIR is also insignificant since there is evidence to show that
immediately after the incident, PW1 and PW2 were taken to
hospital and admitted there. The FIR was registered only when
intimation was given by the hospital authorities to the police.
9. The evidence of PW1 and PW2 is credible and
believable. They clearly deposed the manner in which the accused
attacked them and the overt act of each of the accused. They
have also deposed about the weapon used by each of the accused
and the parts of the body where the injuries were inflicted. As
stated already, the wound certificates and the evidence of the
doctors would prove that in the incident, PW1 and PW2 sustained
fracture. Hence, I see no reason to interfere with the conviction of
the petitioners under Section 326 read with 34 of the IPC.
10. What remains is sentence. The petitioners were
sentenced to undergo rigorous imprisonment for one year each
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and to pay a fine of ₹2,000/- each. The learned Amicus Curiae
submitted that the 1st accused might have attained 75 years by
now and all the petitioners have been undergoing the trauma of
trial for the last thirty years and hence the substantive sentence
may be reduced. I find some force in the said argument. Having
considered the facts and circumstances of the case, I am of the
view that the substantive sentence can by reduced to six months.
However, the petitioners must be ordered to pay compensation to
PW1 and PW2. Hence, this revision petition is disposed of,
confirming the concurrent finding of conviction and modifying the
sentence as follows:
Accused 1 to 4/petitioners 1 to 4 are sentenced to
undergo rigorous imprisonment for a period of six months and to
pay a compensation of ₹10,000/- each to PW1 and PW2, in default
to suffer simple imprisonment for a further period of three months
each. Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
KP
