IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1332 of 2002()
1. SANTHOSH @ GOPAKUMAR,
... Petitioner
Vs
1. STATE, REPRESENTED BY PUBLIC PROSECUTOR,
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :05/04/2010
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P. No. 1332 of 2002
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Dated this the 5th day of April, 2010
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O R D E R
The Additional Assistant Sessions Judge, Paravoor in
S.C. No.227/1998 convicted the revision petitioner for offence
under Section 307 of Indian Penal Code and sentenced to
simple imprisonment for five years and a fine of Rs.5,000/-
with a default sentence of simple imprisonment for three
months. Feeling aggrieved, he preferred Crl.Appeal
No.492/2000 before the Additional Sessions Judge, North
Paravoor. The lower appellate court by judgment dated
24.7.2002 found that, with the materials on record, offence
under Section 325 IPC alone was disclosed. Consequently,
the conviction was altered to one under Section 325 IPC and
sentenced to simple imprisonment for 3 years and a fine of
Rs.5,000/- with a default sentence of simple imprisonment for
3 months. Assailing the legality, correctness and propriety of
the above conviction and sentence, as modified in appeal, this
Crl.R.P. No. 1332 of 2002
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revision petition was filed.
2. PW10, the Circle Inspector of Police, Kuruppampady
police station prosecuted the revision petitioner with an
allegation that, at 7.00 pm on 27.12.1995, the revision
petitioner attempted to commit murder of PW2, the neighbour
of the revision petitioner by beating at the head of PW2 with a
spade which was marked as MO1. As a result of the assault,
PW2 sustained severe injury including depressed fracture on
the head. She was first taken to Dharmagiri Hospital by PW1,
her daughter and other neighbours who gathered on the spot
of occurrence. From Dharmagiri hospital, she was referred to
a major hospital and was brought to Medical Trust Hospital,
Ernakulam where she was treated. Intimation was conveyed to
the Station House Officer, Kuruppampady police station. PW8,
a Head Constable, attached to Kuruppampady police station
proceeded to the Medical Trust hospital and recorded Ext.P1,
the first information statement given by PW1, who is a witness
to the occurrence. On the basis of Ext.P1, PW8 registered a
Crl.R.P. No. 1332 of 2002
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case as crime No.346/95 for offences under Section 307 of IPC
by Ext.P6 first information report. The investigation was
taken over by PW9, the predecessor of PW10. Later, it was
taken over PW10, who after investigation, filed a final report
before the Judicial Magistrate of the First Class, Perumbavoor,
where it was numbered as C.P.No.16/98. The learned
Magistrate, on finding that the offence alleged is triable by a
Court of Session, after complying with the requisite
procedures, committed the case to the Court of Session,
Ernakulam. From there it was made over to the Assistant
Sessions Judge, North Paravoor. The learned Assistant
Sessions Judge on satisfying that there are materials to send
the revision petitioner for trial for offence under Section 307
IPC, framed a charge to which the revision petitioner
pleaded not guilty. Hence, the revision petitioner was sent for
trial. On the side of the prosecution, PWs 1 to 10 were
examined. Exts.P1 to P9 and Mos. 1 to 3 were marked. After
closing the evidence for the prosecution, the revision
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petitioner was questioned under Section 313 of the Code of
Criminal Procedure. He took up a defence of total denial and
further contended that the case was falsely foisted due to
previous enmity and that PW2 sustained injury when she fell
over a granite stone in the cattle shed. Responding to the call
to enter on his defence evidence, one witness was examined
as DW1 to depose that CW3 told him that PW2 had sustained
injury due to fall over a granite stone. The learned Assistant
Sessions Judge on appraisal of the evidence arrived at a
finding of guilty. Consequently the revision petitioner was
convicted and sentenced.
3. The evidence of PWs 1 and 2 supported the
prosecution. They are harmonious that there was a pit behind
cattle shed of PW2 and that at about 7 pm on 27.12.1995
when PW2 went to the cattle shed for feeding the cow, the
revision petitioner was found reclaiming the pit with a spade
which was marked as MO1 and seeing that PW2 asked not to
reclaim the pit dug for draining waste water from the cattle
Crl.R.P. No. 1332 of 2002
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shed. Stating that PW2 would be buried in the pit, she was
cut at the head with MO1 and thereby PW2 sustained injury.
The evidence of PWs.1 and 2 mutually corroborate in material
particulars. Their evidence also corroborate with Ext.P1 first
information statement given by PW1.
4. The learned counsel for the revision petitioner would
contend that, since there is no independent witness, the
conviction under challenge based upon the interested
testimony is not sustainable. The very same contention was
urged before the appellate court also. The appellate court had
a very careful scrutiny of the evidence of PWs.1 and 2 which is
supported by Ext.P1 first information statement. The
appellate court rejected the contention of the revision
petitioner and concurred with the trial court that the injury
was inflicted by the revision petitioner with MO1 spade. The
evidence of PW6, the medical officer attached to the Medical
Trust Hospital, Ernakulam, would show that PW2 was brought
to the hospital with a lacerated injury measuring 7 x 2 x 2
Crl.R.P. No. 1332 of 2002
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centimetres on the left frontal area with a compound
depressed fracture of the underlying bone through which the
brain matter was visible. X-ray confirmed the depressed
fracture. He had further deposed that the injury could be
caused with a weapon like MO1 spade. He had stated in the
cross examination that the injury could be caused by blunt
weapon. It was contended before the appellate court as well
as this Court that MO1 is a sharp edged one and so depressed
fracture could not be caused with MO1. However, it is not
disputed by the learned counsel for the revision petitioner that
MO1 had blunt portion. So there is every possibility for
causing the injury found on PW2 with MO1. Though PW6 was
subjected to searching cross examination no material was
disclosed to disbelieve him. The evidence of PWs.1 and 2
corroborate with the medical evidence. The very defence case
is that PW2 fell on granite stone in the cattle shed. But there
is no evidence to show that there was loose granite stone in
the cattle shed or that the accident occurred at the cattle
Crl.R.P. No. 1332 of 2002
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shed. So the courts below were right in rejecting the defence
version. As against the concurrent finding of fact, I find little
reason to interfere with the oral evidence supported by
medical evidence. It is pertinent to note that the incident was
at 7 pm near the cattle shed of PW2. PW2 and revision
petitioner were residing very close. PW1 is a very natural
witness. There is no case for the revision petitioner that there
were any independent witness. There is nothing revealed to
show that the revision petitioner was falsely implicated. If the
story spoken by DW1 is correct, the revision petitioner would
have examined CW3 instead of DW1. So also, the revision
petitioner, being a neighbour would have taken PW2 to the
hospital. Revision petitioner has no such case. That
circumstance leads to an inference against the revision
petitioner. Corroboration is only a rule of prudence and not
rule of evidence. If the evidence of injured or her daughter
instil confidence, the conviction is sustainable.
5. The revision petitioner had advanced a contention
Crl.R.P. No. 1332 of 2002
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that at 7 p.m there would be darkness and that there is little
evidence to conclude that light was available so as to enable
PWs 1 and 2 to identify the assailant and the weapon. That
contention was also rejected by the courts below obviously for
the reason that it may not be much dark at 7 pm because the
sun set on that day was at 6.08 pm and it was the 6th day
from new moon day. It is also pertinent to note that the
revision petitioner being a neighbour was very familiar to
PWs 1 and 2. The incident being 52 minutes after sunset and
on the 6th day from new moon day, there would be sufficient
light to identify the assailant and MO1 spade even if there is
no electric light. Adding to that, PWs 1 and 2 had deposed
that there were electric lights in front of the house of the
revision petitioner and PW2. PW3, who had come to the spot
on hearing the cry of PW2 hsad also given evidence regarding
the availability of electric light as well as moon light. Their
evidence is convincing. In the above circumstances, the
courts below rightly rejected the defence version and it is no
Crl.R.P. No. 1332 of 2002
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way vitiated by any impropriety or error.
5. It was also contended that the injured was first taken
to Dharmagiri Hospital and that an intimation might have
been conveyed to the police but no document was brought in
evidence. However, the evidence of PW6 would show that
PW6, who was working as Medical Officer in Medical Trust
Hospital, Ernakulam, examined PW2 at 9.45 pm. The incident
was admittedly at 7 pm. In the meanwhile, PW2, who had
severe injuries was first taken to the Dharmagiri hospital and
from there she was conveyed to Medical Trust Hospital,
Ernakulam. There is no material on the record to show that
there was any statement given by PW2 either at Dharmagiri
hospital or at any police station before being taken to the
Medical Trust Hospital. In the above circumstance, there is
little reason to reject Ext.P1 or to conclude that Ext.P1 is not
the first information statement.
6. The appellate court had very well appreciated the
evidence on record and arrived at a finding that it was none
Crl.R.P. No. 1332 of 2002
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other than the revision petitioner who had inflicted the injury
mentioned earlier at the head of PW2 with MO1 spade.
7. From the evidence of PWs 1, 2 and 6 supported by
Ext.P1 and P4, I find that in fact there is sufficient evidence on
record to establish the intention of the revision petitioner as
well as the deadly nature of MO1. The words uttered by the
revision petitioner, which is mentioned earlier would show
that in fact the intention of the revision petitioner was to
murder, rather than to inflict injury. However, the lower
appellate court found that the intention to commit murder was
not proved and that only an offence under Section 325 IPC
was established. Even if the prosecution could not establish
the intention to commit murder, MO1, being a deadly
weapon and having regard to the nature and place of injury,
there is sufficient material to establish offence under Section
326 IPC and not 325 IPC. However, taking note that the
prosecution had not preferred any revision, I leave open that
aspect and find that commission of offence under Section 325
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IPC is beyond dispute.
8. The revision petitioner is reportedly a driver by
profession. There is nothing on record to show that PW2 was
the aggressor or that she was armed with any weapon. PW2
was assaulted only for the reason that she objected
reclaiming the pit dug by her in her property. In this view of
the matter, I find that the sentence awarded by the appellate
court is neither harsh nor disproportionate so as to interfere
in exercise of the revisional powers.
The revision petition is devoid of merits. Accordingly it
is dismissed. Revision petitioner shall surrender before the
trial court for execution of the sentence. Bail granted is
hereby cancelled. Trial court shall see the execution of
sentence and report compliance.
P.S.GOPINATHAN
JUDGE
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