High Court Kerala High Court

Santhosh @ Gopakumar vs State on 5 April, 2010

Kerala High Court
Santhosh @ Gopakumar vs State on 5 April, 2010
       

  

  

 
 
  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.
                     ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
                    Crl.R.P. No. 1332 of 2002
        ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
            Dated this the 5th day of April, 2010
        ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

                                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
2

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
3

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

Crl.R.P. No. 1332 of 2002
4

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
5

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
6

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
7

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
8

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
10

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

Crl.R.P. No. 1332 of 2002
11

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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