Partly allowed

Saidalavi v. the State of Kerala

Kerala HC3 Apr 2014Crl.Rev.Pet/3283/2003

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court set aside convictions and sentences under Section 324 IPC for voluntarily causing grievous hurt. The court quashed the part of the judgment holding that dangerous weapons were used, noting the lack of evidence regarding the recovery of the weapon. It maintained convictions under Sections 448 and 323 IPC and enhanced the compensation awarded.

What did the court decide?

Convictions and sentences under Sec. 324 IPC set aside. Convictions under Secs. 448 and 323 IPC maintained with modified simple imprisonment sentences and compensation of 5,000/- to the injured.

Saidalavi Vs the State of Kerala — Cheating and Forgery | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 3RD DAY OF APRIL 2014/13TH CHAITHRA, 1936

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Crl.Rev.Pet.No. 3283 of 2003 (B)

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AGAINST THE JUDGMENT IN CRA.NO.160/2000 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI, DATED 13-06-2003

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AGAINST THE JUDGMENT IN CC.NO.578/1996 of J.M.F.C., PARAPPANANGADI, DATED 29-06-2000

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REVISION PETITIONERS/APPELLANTS/ACCUSED:-

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1. SAIDALAVI, S/O.MOHAMMED, KOLAKUNNATH HOUSE, TANUR, MALAPPURAM DISTRICT.

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2. MUSTAFA, S/O.SAIDALAVI, KOLAKUNNATH HOUSE, TANUR, MALAPPURAM DISTRICT.

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3. ASHRAF, S/O.MOIDEENKUTTY, AMBALAKANDI HOUSE, TANUR, MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT/RESPONDENT/STATE:-

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THE STATE OF KERALA, REPRESENTED BY THE SUB-INSPECTOR OF POLICE, TANUR POLICE STATION – THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI : 31.

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BY PUBLIC PROSECUTOR SRI.ROY THOMAS.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Kvs/-

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B.KEMAL PASHA, J.

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= = = = = = = = = = = Crl.R.P.No.3283 of 2003.

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= = = = = = = = = = =

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Dated this the 3^rd April, 2014.

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O R D E R

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Accused Nos.1 to 3 in CC.No.578 of 1996 of the Judicial First Class Magistrate's Court, Parapanangadi, who were convicted under Sections 448, 323 and 324 IPC r/w.34 IPC, and each of whom sentenced to undergo rigorous imprisonment for three months under Sec.448 IPC, rigorous imprisonment for three months under Sec.323 IPC and to undergo rigorous imprisonment for six months under Sec.324 IPC, approached the Sessions Court, Manjeri through Crl.Appeal No.160 of 2000 by challenging their conviction and sentence. The learned Addl.Sessions Judge concurred with the findings entered by the trial court, confirmed the conviction and sentence, and dismissed the appeal through the impugned judgment.

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Crl.R.P.No.3283/2003.

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Heard, the learned counsel for the petitioners and also the learned Public Prosecutor Sri.Roy Thomas.

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The prosecution case is that, at about 10.15 pm. on 8.4.1996 the petitioners in furtherance of their common intention trespassed into the provision shop of PW1 at Rayirimangalam, and the first petitioner beat on his face with MO1 torch, the second petitioner stamped on his abdomen and the third petitioner fisted on his chest, thereby voluntarily causing hurt on him.

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On the side of the prosecution, PWs.1 to 7 were examined, Exts.P1 to P6 were marked, and MO1 was identified. On evaluation of the prosecution evidence, the courts below found that the petitioners guilty of the offences alleged against them, and consequently they were convicted and sentenced as aforesaid.

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The petitioners have unsuccessfully challenged their conviction and sentence before the court below. The learned counsel for the revision petitioners has argued that there is absolutely nothing to connect any of the petitioners

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Crl.R.P.No.3283/2003.

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with the offences alleged against them. Per contra, the learned Public Prosecutor has supported the conviction and sentence imposed by both the courts below and argued that there is nothing to interfere with the impugned judgment.

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PW1 was in charge of a lodge belongs to one T.K.Aboo Haji. While he was managing the said lodge, it is alleged that some women happened to stay there. Alleging immoral activities on the part of the said women, the petitioners along with some others allegedly trespassed into the shop of PW1 and demanded him to send out the said women from the lodge then and there. It is alleged that the first petitioner beat PW1 on his face with MO1 torch, the second petitioner stamped on his abdomen, and the third petitioner fisted on his chest. It seems that PW1 has clearly made those versions, which could not be shattered in cross examination. The evidence of PW1 was corroborated with the versions of PW2, a customer who happened to reach the shop of PW1 at the time of occurrence.

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PW3 was cited by the prosecution to prove the

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Crl.R.P.No.3283/2003.

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seizure of MO1 torch through Ext.P2 mahazar. According to PW3, MO1 torch was produced before police, by an attestor to Ext.P2 mahazar. PW5 is an attestor to Ext.P4 scene mahazar. PW6, Head Constable of Tanur Police Station went to the Government Hospital, Tanur on 10.4.1996 and recorded Ext.P1 First Information Statement furnished by PW1.

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PW7 was also a Head Constable attached to the Tanur Police Station. On the basis of Ext.P1, PW7 registered the crime through Ext.P5 FIR. He prepared Ext.P4 on 19.4.1996, and seized MO1 torch through Ext.P2 mahazar. He forwarded Ext.P6 report before court showing the names and addresses of the accused/petitioners. The accused were placed under arrest. On completion of the investigation, the Sub Inspector filed the final report. In cross examination PW7 has admitted that Ext.P2 mahazar does not show as to who has produced MO1 torch. Further, according to PW7, the person who produced MO1 is not any of the attestors in Ext.P2.

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Crl.R.P.No.3283/2003.

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PW4, while working as Civil Surgeon, Government

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Taluk Hospital, Tirur, examined PW1 on 9.4.1996 and prepared and issued Ext.P3 wound certificate. He has noted the following injuries in Ext.P2:

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(1) Lacerated wound 2 x 1 x 1 cm., between lower lip and gum margin about centre. (2) Abrasion upper lip. (3) Abrasion left fore-arm.

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The history and cause of injury was noted in Ext.P3 as Musthafa (A2) along with Saidalavi (A1) and their friends trespassed into the shop at Tanur on the previous night at 10.15 pm. and beat him with hands. It seems that nobody has mentioned with regard to the use of MO1 for inflicting any of the injuries. It is evident that injury No.1 would be caused by a contact with hard object like MO1.

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The prosecution has no case as to how and from where MO1 was recovered and seized. The person who has allegedly produced MO1 has not been examined. According to PW7, the said person is not an attestor to Ext.P2. The name of the person who allegedly produced MO1 is not

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Crl.R.P.No.3283/2003.

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seen recorded in Ext.P2. Coupled with the said laches, the non mentioning of the use of MO1, by PW1 before PW4 doctor, clearly go to show that no weapons were used by any of the persons to inflict injuries on PW1. At the same time, it has come out in evidence that the petitioners had trespassed into the shop of PW1 and beat, fisted, and stamped him, thereby all of them causing hurt. Matters being so, the acts of the petitioners clearly constitute the offences punishable under Sections 448 and 323 IPC. The conviction and sentence passed by both the courts below under Sec.324 IPC are liable to be set aside.

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On the question of sentence, I am of the view that a sentence of imprisonment till the rising of the court for the offence under Sec.448 IPC and an order to pay a compensation of 5,000/- to PW1 within three months under₹ Sec.357(3) Cr.P.C, in default, to undergo simple imprisonment for three months under Sec.448 IPC, and a further sentence of imprisonment till the rising of the court and an order to pay a compensation of 5,000/- to PW1₹

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Crl.R.P.No.3283/2003.

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within three months under Sec.357(3) Cr.P.C, in default, to undergo simple imprisonment for three months under Sec.323 IPC, on each of the petitioners, will meet the ends of justice in this case.

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In the result, this Criminal Revision Petition is allowed in part, and

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(1) The conviction and sentence passed by the courts below on all the petitioners under Sec.324 IPC r/w.34 are set aside.

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(2) The conviction passed by the courts below on all the petitioners under Sections 448 and 323 IPC r/w Section 34 is maintained, and each of the petitioners is sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of 5,000/- to PW1 within three months₹ from today under Sec.357(3) Cr.PC., in default, to undergo simple imprisonment for three months under Sec.448 IPC, and further sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of 5,000/- to₹ PW1 within three months from today under Sec.357(3)

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Crl.R.P.No.3283/2003.

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Cr.PC., in default, to undergo simple imprisonment for three months under Sec.323 IPC.

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(3) The substantive sentences of imprisonments shall

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run concurrently.

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Sd/B.KEMAL PASHA, (Judge)

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Kvs/-

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-// true copy //-

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PA TO JUDGE.

Saidalavi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Saidalavi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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