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VINOD versus STATE OF KERALA

High Court of Kerala

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VINOD v. STATE OF KERALA - Crl Rev Pet No. 2345 of 2006 [2006] RD-KL 365 (28 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2345 of 2006()

1. VINOD, S/O. DAMODARAN,
... Petitioner

2. SURA @ SURESH, S/O. KUNHAMBU,

Vs

1. STATE OF KERALA, REPRESENTED BY
... Respondent

For Petitioner :SRI.PROMY KAPRAKKATT

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :28/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2345 of 2006
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Dated this the 28th day of July, 2006

O R D E R

The petitioners are accused 1 and 2 and they challenge the verdict of guilty, conviction and sentence imposed on them by the courts below under Sections 341 and 324 I.P.C.

2. The crux of the allegations against the petitioners is that they, along with deceased second accused, in furtherance of their common intention allegedly attacked PW1 at about 5 a.m. on 10.1.1995. Accused 1 to 3 were armed with dangerous weapons, i.e. MO2 chopper and MO3 nanchak. PW1 was attacked with all the weapons simultaneously and he suffered injuries. Investigation commenced on the basis of Ext.P1 F.I. statement lodged by PW1 in the same evening at about 7.30 p.m. It culminated with the final report submitted by PW9.

3. Consequent to the plea of not guilty raised by the petitioners and the deceased second accused, PWs. 1 to 9 were examined and Crl.R.P.No. 2345 of 2006 2 Exts.P1 to P5 were marked. MOs. 1 to 3 were also marked. PW1 is the victim. Ext.P1 is the F.I. statement lodged by him. PWs. 2 and 3 are the alleged eye witnesses. They supported the prosecution case. PW3 has his shop close to the scene of occurrence. PWs. 4 and 5 are attesters to the seizure mahazar and scene mahazar which are marked as Exts.P3 and P2 respectively. PW6 is the doctor, who examined PW1 at 5.30 a.m. immediately after the incident. Ext.P4 is the wound certificate issued by the doctor. PW1 is shown to have suffered the injuries described in Ext.P4. He had raised an allegation to PW6 that he was attacked by accused Nos. 1 to 3. PW7 only took him to the hospital. PW8 registered Ext.P5 F.I.R. on the basis of Ext.P1 F.I. statement and PW9 filed the charge sheet.

4. The accused took up a defence of total denial. They did not adduce any evidence. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence alleged against the accused persons. The charge against the second accused abated consequent to his death during the pendency of the appeal.

5. Arguments have been advanced by the learned counsel for the Crl.R.P.No. 2345 of 2006 3 petitioner and the learned Public Prosecutor. The learned counsel for the petitioner assails the impugned verdict of guilty, conviction and sentence on various grounds. First of all it is contended that PWs. 1 to 3 are interested. PW1 has involvement in several other crimes. Crime in the instant case is alleged to be motivated by political animosity and PW1 is shown to be a person involved in several such political crimes. PW3 has his shop close to the place of occurrence. It is important to note that the name of PW3 is mentioned as an eye witness in Ext.P1 F.I. statement itself. The evidence of PW1 is convincingly supported by the the injuries found on his person by PW6 doctor at 5.30 a.m. when he examined him and issued Ext.P4 wound certificate. It is also of vital significance that PW1 had narrated to PW6 doctor and it is recorded in Ext.P4 wound certificate that he had suffered the injuries at the hands of accused 1 to 3.

6. According to me the evidence of PW1 is well supported by the injuries found on his person and the alleged cause narrated to PW6 doctor recorded in Ext.P4 wound certificate. We get further assurance to the version of PW1 from the detailed narration of events in Ext.P1 lodged on the very same date. The argument about presence or otherwise of PW2 can Crl.R.P.No. 2345 of 2006 4 be ignored for a moment. But at any rate the presence of PW3 , who has his shop close to the place of occurrence and who is cited as an eye witness in Ext.P1 cannot be doubted. The evidence of PWs. 1 and 3, ignoring the innocuous inaccuracies, do not generate any doubt about the core of the prosecution case. The laborious attempt made to contend that there is incongruity in the time of occurrence is of no avail, considering the fact that PW6 doctor had asserted that he had examined PW1 at 5.30 a.m. and had issued Ext.P4 wound certificate. The incident must necessarily have taken place prior to 5.30 a.m. The witnesses know the accused well enough being neighbours and rival political activists The contention that the witnesses could not have identified the accused persons is found to be of no substance at all.

7. A contention is advanced that the medical evidence tendered by PW6 and the description of injuries in Ext.P4 wound certificate do not tally in so far as it relates to the allegations against the third accused. I find no merit in this contention at all. The mere fact that the injuries exactly corresponding to beating with a wooden stick are not available in Ext.P4 is no reason for a prudent mind to discard such allegations against the third Crl.R.P.No. 2345 of 2006 5 accused raised by PW1 which are supported specifically by the statements in Exts.P4 and P1. The evidence that PW7 had not witnessed the occurrence is not inconsistent with the assertions in Ext.P1 which only show that PW7 had taken the injured to the hospital. That PW7 had not witnessed the occurrence is not in this context in any way incongruent to the prosecution case. I am in these circumstances of the opinion that there can be no successful challenge against the verdict of guilty and conviction entered against the petitioners by the courts below under Sections 341 and 324 I.P.C. The challenge on merits must fail.

8. The learned counsel for the petitioner then submits that the sentence imposed is excessive. The petitioners, going by the details available in the trial court judgment, were aged 19 years and 23 years on the date of commission of the offence. The learned counsel submits that the learned Magistrate had called for a report from the District Probation Officer. But unfortunately such report has not been taken into consideration by the learned Magistrate before he imposed the sentence. I find merit in that submission. The case file shows that the report was called for and the Probation Officer had indicated that the first accused, Vinod, Crl.R.P.No. 2345 of 2006 6 can be considered for the benefit of Section 4 of the Probation of Offenders Act.

9. The allegations against the petitioners are serious. On account of political animosity they are shown to have attacked PW1. It certainly deserves a deterrent response from the enlightened polity. Such resort to violence on political reasons must be frowned upon. But I do note of the passage of time. I do take note of the young age of the offenders on the date of the occurrence. In these circumstances I am satisfied that imposition of maximum permissible sentence of fine shall certainly serve the ends of justice. The petitioners who are shown to be of very young age and obviously misled by the fire of political inclination and commitment have evidently resorted to the objectionable crime. In these circumstances I am satisfied that the sentence can be modified taking into account the report received from the Probation Officer also.

10. In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioners under Section 341 and 324 I.P.C. are upheld. Crl.R.P.No. 2345 of 2006 7 ) But the sentence imposed on them is modified and reduced. In supersession of the sentence imposed on the petitioners by the courts below they are sentenced to pay a fine of Rs.5,000/- each under Sections 324 and to pay a fine of Rs.500/- each under Section 341 I.P.C. In default they will undergo imprisonment for a period of three months and 15 days respectively. Out of the fine amount, if realised, an amount of Rs. 8,000/- shall be released to PW1 as compensation.

8. The petitioners shall appear before the learned Magistrate on or before 31.8.2006 to pay the fine amount and avoid the default sentence. If the fine amount is not paid by then, they shall appear before the learned Magistrate on 1.9.2006. If the petitioners do not so appear, the learned Magistrate shall thereafter proceed to take necessary steps to execute the modified sentence hereby imposed. (R. BASANT) Judge tm


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