{"id":99374,"date":"2010-04-05T00:00:00","date_gmt":"2010-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santhosh-gopakumar-vs-state-on-5-april-2010"},"modified":"2014-03-05T12:27:55","modified_gmt":"2014-03-05T06:57:55","slug":"santhosh-gopakumar-vs-state-on-5-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santhosh-gopakumar-vs-state-on-5-april-2010","title":{"rendered":"Santhosh @ Gopakumar vs State on 5 April, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Santhosh @ Gopakumar vs State on 5 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 1332 of 2002()\n\n\n1. SANTHOSH @ GOPAKUMAR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE, REPRESENTED BY PUBLIC PROSECUTOR,\n                       ...       Respondent\n\n                For Petitioner  :SRI.B.RAMAN PILLAI\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice P.S.GOPINATHAN\n\n Dated :05\/04\/2010\n\n O R D E R\n                        P.S.GOPINATHAN, J.\n                     ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\n                    Crl.R.P. No. 1332 of 2002\n        ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\n            Dated this the 5th day of April, 2010\n        ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~\n\n                                O R D E R\n<\/pre>\n
     The Additional Assistant Sessions Judge, Paravoor in<\/p>\n
S.C. No.227\/1998 convicted the revision petitioner for offence<\/p>\n
under Section 307 of Indian Penal Code and sentenced to<\/p>\n
simple imprisonment for five years and a fine of Rs.5,000\/-<\/p>\n
with a default sentence of simple imprisonment for three<\/p>\n
months.      Feeling aggrieved, he preferred Crl.Appeal<\/p>\n
No.492\/2000 before the Additional Sessions Judge, North<\/p>\n
Paravoor. The lower appellate court by judgment dated<\/p>\n
24.7.2002 found that, with the materials on record, offence<\/p>\n
under Section 325 IPC alone was disclosed. Consequently,<\/p>\n
the conviction was altered to one under Section 325 IPC and<\/p>\n
sentenced to simple imprisonment for 3 years and a fine of<\/p>\n
Rs.5,000\/- with a default sentence of simple imprisonment for<\/p>\n
3 months. Assailing the legality, correctness and propriety of<\/p>\n
the above conviction and sentence, as modified in appeal, this<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                2<\/span><\/p>\n
revision petition was filed.\n<\/p>\n
      2. PW10, the Circle Inspector of Police, Kuruppampady<\/p>\n
police station prosecuted the revision petitioner with an<\/p>\n
allegation that, at 7.00 pm on 27.12.1995, the revision<\/p>\n
petitioner attempted to commit murder of PW2, the neighbour<\/p>\n
of the revision petitioner by beating at the head of PW2 with a<\/p>\n
spade which was marked as MO1. As a result of the assault,<\/p>\n
PW2 sustained severe injury including depressed fracture on<\/p>\n
the head. She was first taken to Dharmagiri Hospital by PW1,<\/p>\n
her daughter and other neighbours who gathered on the spot<\/p>\n
of occurrence. From Dharmagiri hospital, she was referred to<\/p>\n
a major hospital and was brought to Medical Trust Hospital,<\/p>\n
Ernakulam where she was treated. Intimation was conveyed to<\/p>\n
the Station House Officer, Kuruppampady police station. PW8,<\/p>\n
a Head Constable, attached to Kuruppampady police station<\/p>\n
proceeded to the Medical Trust hospital and recorded Ext.P1,<\/p>\n
the first information statement given by PW1, who is a witness<\/p>\n
to the occurrence. On the basis of Ext.P1, PW8 registered a<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                3<\/span><\/p>\n
case as crime No.346\/95 for offences under Section 307 of IPC<\/p>\n
by Ext.P6 first information report.       The investigation was<\/p>\n
taken over by PW9, the predecessor of PW10. Later, it was<\/p>\n
taken over PW10, who after investigation, filed a final report<\/p>\n
before the Judicial Magistrate of the First Class, Perumbavoor,<\/p>\n
where it was numbered as C.P.No.16\/98.             The learned<\/p>\n
Magistrate, on finding that the offence alleged is triable by a<\/p>\n
Court of Session, after complying with the requisite<\/p>\n
procedures, committed the case to the Court of Session,<\/p>\n
Ernakulam. From there it was made over to the Assistant<\/p>\n
Sessions Judge, North Paravoor. The learned Assistant<\/p>\n
Sessions Judge on satisfying that there are materials to send<\/p>\n
the revision petitioner for trial for offence under Section 307<\/p>\n
IPC, framed a charge to which            the revision petitioner<\/p>\n
pleaded not guilty. Hence, the revision petitioner was sent for<\/p>\n
trial.    On the side of the prosecution, PWs 1 to 10 were<\/p>\n
examined. Exts.P1 to P9 and Mos. 1 to 3 were marked. After<\/p>\n
closing the evidence for the prosecution, the revision<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                 4<\/span><\/p>\n
petitioner was questioned under Section 313 of the Code of<\/p>\n
Criminal Procedure. He took up a defence of total denial and<\/p>\n
further contended that the case was falsely foisted due to<\/p>\n
previous enmity and that PW2 sustained injury when she fell<\/p>\n
over a granite stone in the cattle shed. Responding to the call<\/p>\n
to enter on his defence evidence, one witness was examined<\/p>\n
as DW1 to depose that CW3 told him that PW2 had sustained<\/p>\n
injury due to fall over a granite stone. The learned Assistant<\/p>\n
Sessions Judge on appraisal of the evidence arrived at a<\/p>\n
finding of guilty.       Consequently the revision petitioner was<\/p>\n
convicted and sentenced.\n<\/p>\n
      3. The evidence of PWs 1 and 2 supported the<\/p>\n
prosecution. They are harmonious that there was a pit behind<\/p>\n
cattle shed of PW2 and that at about 7 pm on 27.12.1995<\/p>\n
when PW2 went to the cattle shed for feeding the cow, the<\/p>\n
revision petitioner was found reclaiming the pit with a spade<\/p>\n
which was marked as MO1 and seeing that PW2 asked not to<\/p>\n
reclaim the pit dug for draining waste water from the cattle<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                5<\/span><\/p>\n
shed. Stating that PW2 would be buried in the pit, she was<\/p>\n
cut at the head with MO1 and thereby PW2 sustained injury.<\/p>\n
The evidence of PWs.1 and 2 mutually corroborate in material<\/p>\n
particulars. Their evidence also corroborate with Ext.P1 first<\/p>\n
information statement given by PW1.\n<\/p>\n
      4. The learned counsel for the revision petitioner would<\/p>\n
contend that, since there is no independent witness, the<\/p>\n
conviction under challenge based upon the interested<\/p>\n
testimony is not sustainable. The very same contention was<\/p>\n
urged before the appellate court also. The appellate court had<\/p>\n
a very careful scrutiny of the evidence of PWs.1 and 2 which is<\/p>\n
supported by Ext.P1 first information statement.          The<\/p>\n
appellate court rejected the contention of the revision<\/p>\n
petitioner and concurred with the trial court that the injury<\/p>\n
was inflicted by the revision petitioner with MO1 spade. The<\/p>\n
evidence of PW6, the medical officer attached to the Medical<\/p>\n
Trust Hospital, Ernakulam, would show that PW2 was brought<\/p>\n
to the hospital with a lacerated injury measuring 7 x 2 x 2<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                 6<\/span><\/p>\n
centimetres on the left        frontal area with a compound<\/p>\n
depressed fracture of the underlying bone through which the<\/p>\n
brain matter was visible.       X-ray confirmed the depressed<\/p>\n
fracture.       He had further deposed that the injury could be<\/p>\n
caused with a weapon like MO1 spade. He had stated in the<\/p>\n
cross examination that the injury could be caused by blunt<\/p>\n
weapon. It was contended before the appellate court as well<\/p>\n
as this Court that MO1 is a sharp edged one and so depressed<\/p>\n
fracture could not be caused with MO1. However, it is not<\/p>\n
disputed by the learned counsel for the revision petitioner that<\/p>\n
MO1 had blunt portion.        So there is every possibility for<\/p>\n
causing the injury found on PW2 with MO1. Though PW6 was<\/p>\n
subjected to searching cross examination no material was<\/p>\n
disclosed to disbelieve him. The evidence of PWs.1 and 2<\/p>\n
corroborate with the medical evidence. The very defence case<\/p>\n
is that PW2 fell on granite stone in the cattle shed. But there<\/p>\n
is no evidence to show that there was loose granite stone in<\/p>\n
the cattle shed or that the accident occurred at the cattle<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                 7<\/span><\/p>\n
shed. So the courts below were right in rejecting the defence<\/p>\n
version. As against the concurrent finding of fact, I find little<\/p>\n
reason to interfere with the oral evidence supported by<\/p>\n
medical evidence. It is pertinent to note that the incident was<\/p>\n
at 7 pm near the cattle shed of PW2.          PW2 and revision<\/p>\n
petitioner were residing very close.      PW1 is a very natural<\/p>\n
witness. There is no case for the revision petitioner that there<\/p>\n
were any independent witness. There is nothing revealed to<\/p>\n
show that the revision petitioner was falsely implicated. If the<\/p>\n
story spoken by DW1 is correct, the revision petitioner would<\/p>\n
have examined CW3 instead of DW1. So also, the revision<\/p>\n
petitioner, being a neighbour would have taken PW2 to the<\/p>\n
hospital.       Revision petitioner has no such case.       That<\/p>\n
circumstance leads to an inference against the revision<\/p>\n
petitioner. Corroboration is only a rule of prudence and not<\/p>\n
rule of evidence. If the evidence of injured or her daughter<\/p>\n
instil confidence, the conviction is sustainable.<\/p>\n
      5. The revision petitioner had advanced a contention<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                8<\/span><\/p>\n
that at 7 p.m there would be darkness and that there is little<\/p>\n
evidence to conclude that light was available so as to enable<\/p>\n
PWs 1 and 2 to identify the assailant and the weapon. That<\/p>\n
contention was also rejected by the courts below obviously for<\/p>\n
the reason that it may not be much dark at 7 pm because the<\/p>\n
sun set on that day was at 6.08 pm and it was the 6th day<\/p>\n
from new moon day. It is also pertinent to note that the<\/p>\n
revision petitioner being a neighbour was very familiar to<\/p>\n
PWs 1 and 2. The incident being 52 minutes after sunset and<\/p>\n
on the 6th day from new moon day, there would be sufficient<\/p>\n
light to identify the assailant and MO1 spade even if there is<\/p>\n
no electric light. Adding to that, PWs 1 and 2 had deposed<\/p>\n
that there were electric lights in front of the house of the<\/p>\n
revision petitioner and PW2. PW3, who had come to the spot<\/p>\n
on hearing the cry of PW2 hsad also given evidence regarding<\/p>\n
the availability of electric light as well as moon light. Their<\/p>\n
evidence is convincing.      In the above circumstances, the<\/p>\n
courts below rightly rejected the defence version and it is no<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                9<\/span><\/p>\n
way vitiated by any impropriety or error.\n<\/p>\n
      5. It was also contended that the injured was first taken<\/p>\n
to Dharmagiri Hospital and that an intimation might have<\/p>\n
been conveyed to the police but no document was brought in<\/p>\n
evidence. However, the evidence of PW6 would show that<\/p>\n
PW6, who was working as Medical Officer in Medical Trust<\/p>\n
Hospital, Ernakulam, examined PW2 at 9.45 pm. The incident<\/p>\n
was admittedly at 7 pm. In the meanwhile, PW2, who had<\/p>\n
severe injuries was first taken to the Dharmagiri hospital and<\/p>\n
from there she was conveyed to Medical Trust Hospital,<\/p>\n
Ernakulam. There is no material on the record to show that<\/p>\n
there was any statement given by PW2 either at Dharmagiri<\/p>\n
hospital or at any police station before being taken to the<\/p>\n
Medical Trust Hospital. In the above circumstance, there is<\/p>\n
little reason to reject Ext.P1 or to conclude that Ext.P1 is not<\/p>\n
the first information statement.\n<\/p>\n
      6. The appellate court had very well appreciated the<\/p>\n
evidence on record and arrived at a finding that it was none<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                10<\/span><\/p>\n
other than the revision petitioner who had inflicted the injury<\/p>\n
mentioned earlier at the head of PW2 with MO1 spade.<\/p>\n
      7. From the evidence of PWs 1, 2 and 6        supported by<\/p>\n
Ext.P1 and P4, I find that in fact there is sufficient evidence on<\/p>\n
record to establish the intention of the revision petitioner as<\/p>\n
well as the deadly nature of MO1. The words uttered by the<\/p>\n
revision petitioner, which is mentioned earlier would show<\/p>\n
that in fact the intention of the revision petitioner was to<\/p>\n
murder, rather than to inflict injury.      However, the lower<\/p>\n
appellate court found that the intention to commit murder was<\/p>\n
not proved and that only an offence under Section 325 IPC<\/p>\n
was established. Even if the prosecution could not establish<\/p>\n
the intention to commit murder, MO1,              being a deadly<\/p>\n
weapon and having regard to the nature and place of injury,<\/p>\n
there is sufficient material to establish offence under Section<\/p>\n
326 IPC and not 325 IPC. However, taking note that the<\/p>\n
prosecution had not preferred any revision, I leave open that<\/p>\n
aspect and find that commission of offence under Section 325<\/p>\n
Crl.R.P. No. 1332 of 2002
\n                                  11<\/span><\/p>\n
IPC is beyond dispute.\n<\/p>\n
      8.     The revision petitioner is reportedly a driver by<\/p>\n
profession. There is nothing on record to show that PW2 was<\/p>\n
the aggressor or that she was armed with any weapon. PW2<\/p>\n
was assaulted only for the reason that she objected<\/p>\n
reclaiming the pit dug by her in her property. In this view of<\/p>\n
the matter, I find that the sentence awarded by the appellate<\/p>\n
court is neither harsh nor disproportionate so as to interfere<\/p>\n
in exercise of the revisional powers.\n<\/p>\n
      The revision petition is devoid of merits.   Accordingly it<\/p>\n
is dismissed. Revision petitioner shall surrender before the<\/p>\n
trial court for execution of the sentence.       Bail granted is<\/p>\n
hereby cancelled.         Trial court shall see the execution of<\/p>\n
sentence and report compliance.\n<\/p>\n<\/p>\n
                                              P.S.GOPINATHAN
\n                                                   JUDGE<\/p>\n
nl<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/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-99374","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSanthosh @ Gopakumar vs State on 5 April, 2010 - 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\/santhosh-gopakumar-vs-state-on-5-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santhosh @ Gopakumar vs State on 5 April, 2010 - 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