IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1975 of 2003()
1. PATHARI HAMSA @ THELI,
... Petitioner
2. ABBAS, S/O. HASSANKUTTY,
Vs
1. THE CIRCLE INSPECTOR OF POLICE,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :24/06/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 1975 OF 2003
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Dated this the 24th day of June, 2009.
J U D G M E N T
This appeal is preferred against the conviction and
sentence passed in S.C.30/00 of the Addl. Sessions Judge,
Adhoc, Fast Track Court-I, Manjeri. The accused two in
number were charge sheeted for offences u/Ss.341, 323, 304
r/w S.34 IPC and they were convicted u/Ss. 341 and 323 IPC
and sentenced to undergo imprisonment for one year u/s 323
and one month u/s 341. They were also directed to pay a fine
of Rs.1,000/- each u/s 323 and Rs.500/- each u/s 341 IPC.
Set off was also allowed. It is the against that decision the
accused has come up in appeal. It is the case of the
prosecution that on 18.8.98 the accused together wrongfully
restrained one Abdul Razak pressed him against a goods auto
rickshaw beaten him and fisted him and kicked him resulting
in injuries to him and when PW10 came to the rescue he was
also beaten which resulted in the sustainment of injuries to
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them and they were removed to the hospital immediately.
Unfortunately on the very same evening the said Abdul Razak
died and therefore the police registered cases u/Ss.341, 323
and 304 IPC. The trial court on an elaborate consideration of
the materials found that evidence is not sufficient to attract
S.304 IPC and therefore did not find them guilty under that
Section but it found the accused guilty u/Ss. 323 and 341 IPC.
2. The learned counsel for the appellant very strongly
contends before me that the evidence of PW10 and PW11
when read with the evidence of PW1 and other materials
would show that the case of the prosecution is not proved and
therefore the accused should be acquitted. Ext.P4 is the First
Information Statement. It has set the law in motion. It is
given by PW10 at 10.30 p.m. on 18.8.98. It is his case that at
6.45 p.m. on 18.8.98 he had seen the accused inflicting the
blows, kicks and fisting on Abdul Razak and when he wenn to
the spot he was also beaten with a stick used for firewood and
thereafter also was beaten with the hands. It is also his
version that the auto rickshaw driver Mohandas and Haridas
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etc. came to the spot and on seeing them the accused left the
place of incident. Later Abdul Razak died and according to him
there was a dispute between the said Razak and A1 on
account of misplacement of a watch in the auto rickshaw and
that was given to one Harris by the deceased. According to
PW10, Abdul Razak had told him that A2 always used to
threaten him with dare consequences. PW1 is the Doctor who
had examined the said Abdul Razak as well as PW10. A
perusal of the wound certificates, Exts.P1 and P2 would reveal
that Abdul Razak had sustained a small abrasion of 1 c.m. on
the root of the right toe and he had no other external injury.
Ext.P2 would reveal that PW10 has an abrasion of about .5 x.5
cm on the right side of the neck. PW1, the Doctor had
deposed that these witnesses had told him that who had
attacked them and that the injuries noted are simple in
nature. A perusal of Exts.P1 and P2 would reveal that the
name of the accused are stated before the Doctor by the
respective injured. I am conscious that such a statement is
not a conclusive proof of the persons involved in an incident.
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It is in this back ground one has to refer to the evidence of
PW10 and PW11. So far as the offence u/s 304 is concerned it
is true that Abdul Razak died but his cause of death as
revealed from the postmortem report is of a choronial
thrombosis and a questioning the Deputy Superintendent of
Police would show that he has not directed his investigation in
that direction whether even the family members knew about
his ailment regarding the heart. Since there is no finding of
guilt u/s 304, this Court cannot consider it at all and so one
has to confine its discussion on the evidence available for the
purpose of finding out whether S.323 and 341 IPC had been
established or not.
3. PW10 is one of the injured who had given Ext.P4.
He had deposed before Court that on 18.8.98 when he was
coming back from the hotel after taking some tea he saw the
accused taking Razak to the goods auto rickshaw and beating
him and kicking him. When he interfered, as per Ext.P4
statement, he was beaten with a stick and later was beaten
with hands. But there is a clear statement in Ext.P4 as well as
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in the oral evidence of PW10 that the accused had beaten both
Abdul Razak and him. He also mentioned the name of PW11,
Mohandas in Ext.P4 statement itself. The learned counsel
brought my attention to the contradictions in the evidence of
PW10. It is to the effect that before the Doctor as well as in
Ext.P4 his version is that he had been beaten with a stick. But
when it comes to the question of evidence he would say that
he was only beaten with his hands. There was an attempt to
point out this contradiction in 161 statement but unfortunately
it is not seen marked and therefore it cannot be used but at
any rate it has to be stated that it is a clear version of PW10
that the accused had beaten him and Abdul Razak. It has to
be remembered that Ext.P4 statement was given at 10.30
p.m. when much time has not been lapsed after the death of
Abdul Razak and therefore one can understand the situation or
the state of mind of a person. It cannot be considered as a
material contradiction so as to affect the veracity of his
version because he very clearly spells out from the time he
had seen the attack till he was injured and later hospitalised.
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PW11, Mohandas is an auto rickshaw driver by profession and
he had deposed before Court that he had seen both the
accused inflicting blows on PW10 and the deceased Abdul
Razak. He is not in a position to say the manner in which they
were beaten but he is sure about the fact that they were
beaten by the accused. When there is a commotion in an area
and people attack one cannot precisely point out the exact
mode of attack or that what all weapons were used for attack.
If one gives such a version, to my conscience I feel it is a
matter of unnatural one. Here the evidence of PW11 is natural
and it appears to be probable and acceptable. The learned
counsel had brought my attention to the evidence of DW1 who
was cited as witnesses by the prosecution but was examined
as a defence witness. That itself will show what has been the
attitude of this witness. His evidence is lacking confidence and
not acceptable. So from the evidence of PW10 and 11 coupled
with the medical evidence available I have absolutely no
hesitation to hold that the accused had restrained both Abdul
Razak and PW10 and thereafter had beaten them thereby
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attracting the offences u/Ss.341 and 323 IPC. Therefore the
said finding does not call for any interference.
4. Now turning to the question of sentence. It is true
that the injuries noted are absolutely minor in nature and they
are only superficial abrasions and it is proved by doctors
evidence as well and therefore I feel the Court below was little
harsh on imposing the maximum penalty provided by the
statute. It is unfortunate that Abdul Razak died but the cause
of his death was heart attack which reveals that he had
cardiac problem with restrictive blood supply and that has
resulted in his death. Nobody knew that he was a heart
patient even including the family members. Therefore it
should not be taken as a guide to impose punishment on these
two persons. Therefore I feel interest of justice can be met by
awarding lesser punishment. It is seen that both of them had
been apprehended on 19.8.98 and they were released on bail
on 9.9.98. They were under the bars for a period of 20 days. I
think sentence of imprisonment need not be further elongated
and this will be sufficient so far as the imprisonment portion is
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concerned. But I feel the maximum fine of Rs.1,000/- each
u/Ss.323 and Rs.500/- each u/s 341 can be imposed on the
accused. So the sentence is modified accordingly. In the
result the Crl.A is disposed of as follows.
(1) The finding of guilt u/s 232 and 341 IPC r/w S.34 are
confirmed.
(2) The sentence is modified and the sentence of
imprisonment is reduced to the period already undergone and
they are further directed to pay a fine of Rs.1,000/- each u/s
323 and Rs.500/- each u/s 341 IPC.
(3) If they do not pay the fine on or before 31.8.09 the
Court shall take steps for realisation of the amount and as a
default sentence they shall undergo one month’s imprisonment
each.
M.N. KRISHNAN, JUDGE.
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