{"id":142331,"date":"2009-06-24T00:00:00","date_gmt":"2009-06-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pathari-hamsa-theli-vs-the-circle-inspector-of-police-on-24-june-2009"},"modified":"2014-03-11T08:33:28","modified_gmt":"2014-03-11T03:03:28","slug":"pathari-hamsa-theli-vs-the-circle-inspector-of-police-on-24-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pathari-hamsa-theli-vs-the-circle-inspector-of-police-on-24-june-2009","title":{"rendered":"Pathari Hamsa @ Theli vs The Circle Inspector Of Police on 24 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Pathari Hamsa @ Theli vs The Circle Inspector Of Police on 24 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1975 of 2003()\n\n\n1. PATHARI HAMSA @ THELI,\n                      ...  Petitioner\n2. ABBAS, S\/O. HASSANKUTTY,\n\n                        Vs\n\n\n\n1. THE CIRCLE INSPECTOR OF POLICE,\n                       ...       Respondent\n\n2. THE STATE OF KERALA,\n\n                For Petitioner  :SRI.K.M.SATHYANATHA MENON\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :24\/06\/2009\n\n O R D E R\n                      M.N. KRISHNAN, J.\n                = = = = = = = = = = = = = = =\n                 Crl. Appeal NO. 1975 OF 2003\n                = = = = = = = = = = = = = = =\n           Dated this the 24th day of June, 2009.\n\n                       J U D G M E N T\n<\/pre>\n
      This appeal is preferred against the conviction and<\/p>\n
sentence passed in S.C.30\/00 of the Addl. Sessions Judge,<\/p>\n
Adhoc, Fast Track Court-I, Manjeri.    The accused two in<\/p>\n
number were charge sheeted for offences u\/Ss.341, 323, 304<\/p>\n
r\/w S.34 IPC and they were convicted u\/Ss. 341 and 323 IPC<\/p>\n
and sentenced to undergo imprisonment for one year u\/s 323<\/p>\n
and one month u\/s 341. They were also directed to pay a fine<\/p>\n
of Rs.1,000\/- each u\/s 323 and Rs.500\/- each u\/s 341 IPC.<\/p>\n
Set off was also allowed. It is the against that decision the<\/p>\n
accused has come up in appeal.       It is the case of the<\/p>\n
prosecution that on 18.8.98 the accused together wrongfully<\/p>\n
restrained one Abdul Razak pressed him against a goods auto<\/p>\n
rickshaw beaten him and fisted him and kicked him resulting<\/p>\n
in injuries to him and when PW10 came to the rescue he was<\/p>\n
also beaten which resulted in the sustainment of injuries to<\/p>\n
Crl.A. 1975 OF 2003
\n                               -2-<\/span><\/p>\n
them and they were removed to the hospital immediately.<\/p>\n
Unfortunately on the very same evening the said Abdul Razak<\/p>\n
died and therefore the police registered cases u\/Ss.341, 323<\/p>\n
and 304 IPC. The trial court on an elaborate consideration of<\/p>\n
the materials found that evidence is not sufficient to attract<\/p>\n
S.304 IPC and therefore did not find them guilty under that<\/p>\n
Section but it found the accused guilty u\/Ss. 323 and 341 IPC.<\/p>\n
       2.   The learned counsel for the appellant very strongly<\/p>\n
contends before me that the evidence of PW10 and PW11<\/p>\n
when read with the evidence of PW1 and other materials<\/p>\n
would show that the case of the prosecution is not proved and<\/p>\n
therefore the accused should be acquitted. Ext.P4 is the First<\/p>\n
Information Statement. It has set the law in motion. It is<\/p>\n
given by PW10 at 10.30 p.m. on 18.8.98. It is his case that at<\/p>\n
6.45 p.m. on 18.8.98 he had seen the accused inflicting the<\/p>\n
blows, kicks and fisting on Abdul Razak and when he wenn to<\/p>\n
the spot he was also beaten with a stick used for firewood and<\/p>\n
thereafter also was beaten with the hands.       It is also his<\/p>\n
version that the auto rickshaw driver Mohandas and Haridas<\/p>\n
Crl.A. 1975 OF 2003
\n                               -3-<\/span><\/p>\n
etc. came to the spot and on seeing them the accused left the<\/p>\n
place of incident. Later Abdul Razak died and according to him<\/p>\n
there was a dispute between the said Razak and A1 on<\/p>\n
account of misplacement of a watch in the auto rickshaw and<\/p>\n
that was given to one Harris by the deceased. According to<\/p>\n
PW10, Abdul Razak had told him that A2 always used to<\/p>\n
threaten him with dare consequences. PW1 is the Doctor who<\/p>\n
had examined the said Abdul Razak as well as PW10.           A<\/p>\n
perusal of the wound certificates, Exts.P1 and P2 would reveal<\/p>\n
that Abdul Razak had sustained a small abrasion of 1 c.m. on<\/p>\n
the root of the right toe and he had no other external injury.<\/p>\n
Ext.P2 would reveal that PW10 has an abrasion of about .5 x.5<\/p>\n
cm on the right side of the neck.       PW1, the Doctor had<\/p>\n
deposed that these witnesses had told him that who had<\/p>\n
attacked them and that the injuries noted are simple in<\/p>\n
nature. A perusal of Exts.P1 and P2 would reveal that the<\/p>\n
name of the accused are stated before the Doctor by the<\/p>\n
respective injured. I am conscious that such a statement is<\/p>\n
not a conclusive proof of the persons involved in an incident.<\/p>\n
Crl.A. 1975 OF 2003
\n                               -4-<\/span><\/p>\n
It is in this back ground one has to refer to the evidence of<\/p>\n
PW10 and PW11. So far as the offence u\/s 304 is concerned it<\/p>\n
is true that Abdul Razak died but his cause of death as<\/p>\n
revealed from the postmortem report is of a choronial<\/p>\n
thrombosis and a questioning the Deputy Superintendent of<\/p>\n
Police would show that he has not directed his investigation in<\/p>\n
that direction whether even the family members knew about<\/p>\n
his ailment regarding the heart. Since there is no finding of<\/p>\n
guilt u\/s 304, this Court cannot consider it at all and so one<\/p>\n
has to confine its discussion on the evidence available for the<\/p>\n
purpose of finding out whether S.323 and 341 IPC had been<\/p>\n
established or not.\n<\/p>\n
       3.   PW10 is one of the injured who had given Ext.P4.<\/p>\n
He had deposed before Court that on 18.8.98 when he was<\/p>\n
coming back from the hotel after taking some tea he saw the<\/p>\n
accused taking Razak to the goods auto rickshaw and beating<\/p>\n
him and kicking him.      When he interfered, as per Ext.P4<\/p>\n
statement, he was beaten with a stick and later was beaten<\/p>\n
with hands. But there is a clear statement in Ext.P4 as well as<\/p>\n
Crl.A. 1975 OF 2003
\n                                -5-<\/span><\/p>\n
in the oral evidence of PW10 that the accused had beaten both<\/p>\n
Abdul Razak and him. He also mentioned the name of PW11,<\/p>\n
Mohandas in Ext.P4 statement itself.       The learned counsel<\/p>\n
brought my attention to the contradictions in the evidence of<\/p>\n
PW10. It is to the effect that before the Doctor as well as in<\/p>\n
Ext.P4 his version is that he had been beaten with a stick. But<\/p>\n
when it comes to the question of evidence he would say that<\/p>\n
he was only beaten with his hands. There was an attempt to<\/p>\n
point out this contradiction in 161 statement but unfortunately<\/p>\n
it is not seen marked and therefore it cannot be used but at<\/p>\n
any rate it has to be stated that it is a clear version of PW10<\/p>\n
that the accused had beaten him and Abdul Razak. It has to<\/p>\n
be remembered that Ext.P4 statement was given at 10.30<\/p>\n
p.m. when much time has not been lapsed after the death of<\/p>\n
Abdul Razak and therefore one can understand the situation or<\/p>\n
the state of mind of a person. It cannot be considered as a<\/p>\n
material contradiction so as to affect the veracity of his<\/p>\n
version because he very clearly spells out from the time he<\/p>\n
had seen the attack till he was injured and later hospitalised.<\/p>\n
Crl.A. 1975 OF 2003
\n                                -6-<\/span><\/p>\n
PW11, Mohandas is an auto rickshaw driver by profession and<\/p>\n
he had deposed before Court that he had seen both the<\/p>\n
accused inflicting blows on PW10 and the deceased Abdul<\/p>\n
Razak. He is not in a position to say the manner in which they<\/p>\n
were beaten but he is sure about the fact that they were<\/p>\n
beaten by the accused. When there is a commotion in an area<\/p>\n
and people attack one cannot precisely point out the exact<\/p>\n
mode of attack or that what all weapons were used for attack.<\/p>\n
If one gives such a version, to my conscience I feel it is a<\/p>\n
matter of unnatural one. Here the evidence of PW11 is natural<\/p>\n
and it appears to be probable and acceptable. The learned<\/p>\n
counsel had brought my attention to the evidence of DW1 who<\/p>\n
was cited as witnesses by the prosecution but was examined<\/p>\n
as a defence witness. That itself will show what has been the<\/p>\n
attitude of this witness. His evidence is lacking confidence and<\/p>\n
not acceptable. So from the evidence of PW10 and 11 coupled<\/p>\n
with the medical evidence available I have absolutely no<\/p>\n
hesitation to hold that the accused had restrained both Abdul<\/p>\n
Razak and PW10 and thereafter had beaten them thereby<\/p>\n
Crl.A. 1975 OF 2003
\n                                 -7-<\/span><\/p>\n
attracting the offences u\/Ss.341 and 323 IPC. Therefore the<\/p>\n
said finding does not call for any interference.<\/p>\n
       4.   Now turning to the question of sentence. It is true<\/p>\n
that the injuries noted are absolutely minor in nature and they<\/p>\n
are only superficial abrasions and it is proved by doctors<\/p>\n
evidence as well and therefore I feel the Court below was little<\/p>\n
harsh on imposing the maximum penalty provided by the<\/p>\n
statute. It is unfortunate that Abdul Razak died but the cause<\/p>\n
of his death was heart attack which reveals that he had<\/p>\n
cardiac problem with restrictive blood supply and that has<\/p>\n
resulted in his death.     Nobody knew that he was a heart<\/p>\n
patient even including the family members.         Therefore it<\/p>\n
should not be taken as a guide to impose punishment on these<\/p>\n
two persons. Therefore I feel interest of justice can be met by<\/p>\n
awarding lesser punishment. It is seen that both of them had<\/p>\n
been apprehended on 19.8.98 and they were released on bail<\/p>\n
on 9.9.98. They were under the bars for a period of 20 days. I<\/p>\n
think sentence of imprisonment need not be further elongated<\/p>\n
and this will be sufficient so far as the imprisonment portion is<\/p>\n
Crl.A. 1975 OF 2003
\n                                  -8-<\/span><\/p>\n
concerned. But I feel the maximum fine of Rs.1,000\/- each<\/p>\n
u\/Ss.323 and Rs.500\/- each u\/s 341 can be imposed on the<\/p>\n
accused.     So the sentence is modified accordingly.    In the<\/p>\n
result the Crl.A is disposed of as follows.<\/p>\n
       (1) The finding of guilt u\/s 232 and 341 IPC r\/w S.34 are<\/p>\n
confirmed.\n<\/p>\n
       (2)  The sentence is modified and the sentence of<\/p>\n
imprisonment is reduced to the period already undergone and<\/p>\n
they are further directed to pay a fine of Rs.1,000\/- each u\/s<\/p>\n
323 and Rs.500\/- each u\/s 341 IPC.\n<\/p>\n
       (3)  If they do not pay the fine on or before 31.8.09 the<\/p>\n
Court shall take steps for realisation of the amount and as a<\/p>\n
default sentence they shall undergo one month’s imprisonment<\/p>\n
each.\n<\/p>\n<\/p>\n
                                  M.N. KRISHNAN, JUDGE.\n<\/p>\n
ul\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Pathari Hamsa @ Theli vs The Circle Inspector Of Police on 24 June, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-142331","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPathari Hamsa @ Theli vs The Circle Inspector Of Police on 24 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pathari-hamsa-theli-vs-the-circle-inspector-of-police-on-24-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pathari Hamsa @ Theli vs The Circle Inspector Of Police on 24 June, 2009 - 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