Partly allowed

Scaria v. State of Kerala

Kerala HC8 Dec 2017Crl.Rev.Pet/2244/2005

Case brief

AI extract

What is this about?

High Court acquitted three accused of grievous hurt (Section 326 IPC) for lack of medical proof of eyesight loss but upheld convictions for hurt (Sections 323/324 IPC). Court modified sentence to rigorous imprisonment for four months.

What did the court decide?

Revoked conviction under Section 326 IPC; confirmed convictions under Sections 323 and 324 IPC; modified sentence to rigorous imprisonment for four months.

Scaria Vs State of Kerala — Cheque Dishonour | Kerala HC (2017)

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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 P.UBAID

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FRIDAY, THE 8TH DAY OF DECEMBER 2017/17TH AGRAHAYANA, 1939 Crl.Rev.Pet.No. 2244 of 2005 ( ) --------------------------------CRA Nos.197/2004 & 205/2004 of ESSIONS COURT, THODUPUZHA DATED 25.6.2005 CC 87/1999 of J.M.F.C., ADIMALI DATED 29.6.2004 ---------------

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REVISION PETITIONER(S)/APPELLANTS/ACCUSED NOS.1 TO 3 :- -----------------------------------------------------

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1. SCARIA, S/O. PAILY, KUMBAMKOTTIL VEEDU, KAMPLIKANDOM KARA, KONNATHADI VILLAGE.

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2. JOSHY, S/O. THOMAS, KURISINKAL VEEDU, KAMPLIKANDOM KARA, KONNATHADI VILLAGE.

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3. RAJU, S/O. AYYAPPAN, POTHANAMKUZHIYIL VEEDU, KAMPLIKANDOM KARA,, KONNATHADI VILLAGE.

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BY ADVS.SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.DELVIN JACOB MATHEWS SRI.GEORGE PHILIP SRI.RAJU RADHAKRISHNAN

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RESPONDENT(S)/COMPLAINANT :-

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.SREEJA.V.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.UBAID, J.

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Crl.R.P. No.2244 of 2005

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Dated this the 8^th day of December 2017

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O R D E R

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The revision petitioners herein are the three accused in C.C.No.87/1999 of the Judicial First Class Magistrate Court, Adimaly. They faced prosecution under Sections 294(b), 323, 324 and 326 read with Section 34 IPC on the allegation that at about 8 p.m. on 13.11.1998, they assaulted the de facto complainant Mohanan due to previous enemity, and inflicted simple and grievous injuries on his body by pouring acid on his body, including his face. The crime was registered on the complaint made by the de facto complainant. After investigation, the police submitted final report in court. All the accused entered appearance before the learned Magistrate, and pleaded not guilty to the charge framed against them.

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The prosecution examined nine witnesses, and proved Exts.P1 to P8 documents in the trial court. The MO1 and MO2 properties were also identified during trial. All the accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. They did not adduce any evidence in defence.

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Crl.R.P. No.2244 of 2005

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On an appreciation of the evidence, the learned Magistrate found the accused not guilty under Section 294(b) IPC, and they were acquitted of the said offence, but all the three accused were found guilty under Sections 323, 324 and 326 IPC, and they were convicted thereunder with the aid of Section 34 IPC. On conviction, they were sentenced to undergo simple imprisonment for three months each under Section 323 IPC, simple imprisonment for one year each under Section 324 IPC, and to undergo rigorous imprisonment for 2½ years each and to pay a fine of `5,000/- each under Section 326 IPC, by judgment dated 29.6.2004. Aggrieved by the judgment of conviction, the accused Nos.1 and 2 brought Crl.A.No.197/2004, and the 3^rd accused brought Crl.A.No.205/2004 before the Court of Session, Thodupuzha. In appeal, the learned Sessions Judge confirmed the conviction and sentence, and accordingly dismissed both the appeals. Now the accused are before this Court in revision challenging the legality and propriety of the conviction and sentence. As regards the conviction under Section 326 IPC, their definite case is that there is absolutely no evidence to prove the alleged grievous hurt.

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Crl.R.P. No.2244 of 2005

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On an appreciation of the oral and documentary evidence in this case, including the medical evidence, and also on hearing the parties, I find that the conviction in this case under Section 326 IPC is liable to be set aside, because there is no medical evidence proving the alleged grievous hurt. But there is clear and satisfactory evidence to prove the offences under Sections 323 and 324 IPC.

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PW1 is the de facto complainant who sustained injuries in the alleged incident. PW2 and PW3 are the persons who saw PW1 with burn injuries on his face, and the injured was taken to the hospital by PW3. Just after the incident, PW1 came at the shop of PW2 with injuries, and he told him how he sustained injuries. PW3 was also there at that time, and immediately PW3 took him to the hospital in the vehicle of PW4. PW7 is the doctor who examined PW1 at the hospital, and issued Ext.P3 wound certificate. As the complainant had sustained burn injuries on the eye also, he had consultation with an Ophthalmologist. PW8 is the Ophthalmologist who treated PW1 at the hospital, and issued Ext.P4 discharge certificate.

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PW1, the complainant has given clear and definite evidence proving the instance wherein he sustained severe

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Crl.R.P. No.2244 of 2005

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injuries including burn injuries on the face. His evidence is that on his way, he was attacked by the three accused, and they poured acid on his body including face. Due to this, he sustained burn injuries on his face, and he stated during evidence that he has lost his eye sight. The factual aspects spoken to by PW1 are not seen discredited in cross examination.

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The evidence given by PW3 and PW4 is that on the way to the hospital in the vehicle of PW4, the injured had told them how he sustained injuries. Their evidence is that on the way, PW1 told them that he was attacked by the three accused, and they poured acid on his face. Thus, the evidence given by these two witnesses is res gestae evidence admissible under Section 6 of the Indian Evidence Act. These two witnesses had not in fact witnessed the incident, but they are definite and consistent regarding the statements given by PW1 to them on the way to hospital as to how PW1 sustained injuries.

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PW7 has given evidence regarding injuries noted by him on the body of PW1 at the hospital. These injuries are recorded in the Ext.P3 wound certificate. Of course, the doctor has not stated that any of the injuries he noted is grievous in nature. PW8 is the Ophthalmologist who treated PW1 at the

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Crl.R.P. No.2244 of 2005

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hospital, and issued the Ext.P4 discharge certificate. It is pertinent to note that nothing was elicited, or brought out from these two doctors regarding the nature or the consequence of the injuries, and there is nothing in their evidence to prove any grievous hurt. It appears that the Investigating Officer filed a report in the trial court incorporating Section 326 IPC on the basis of what the complainant stated during investigation. But during trial, the prosecution failed to elicit and bring out the necessary elements. The grievous hurt alleged by the complainant during trial is that he has lost his eye sight. No such question was asked to PW7 or PW8 during trial. Simply on the basis of the evidence of PW1 that he has lost his eye sight, the court cannot come to a finding that he had sustained grievous injury. When there is no medical evidence proving loss of eye sight, the oral evidence given by the complainant cannot be accepted to find a case of grievous hurt under Section 326 IPC. The prosecution has miserably failed to prove such an injury, and so, I find that the conviction under Section 326 IPC is liable to be set aside.

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The evidence given by PW1 read along with the res gestae evidence given by PW3 and PW4 very well proves the

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Crl.R.P. No.2244 of 2005

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offences under Sections 323 and 324 IPC. The evidence of PW1 is that he was beaten by the accused, and they poured acid on his body including face, as a result of which, he sustained severe burn injuries on his face. The evidence of PW2 is that PW1 had come at his shop with burn injuries on his face. I find no reason to disbelieve the de facto complainant, or to reject his evidence. There is no reason why he should foist a false case against the accused. The accused have no explanation how PW1 sustained burn injuries on his face.

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On an appreciation of the evidence as discussed above, I find that the prosecution has well succeeded in proving the offences under Sections 323 and 324 IPC.

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Now the question of sentence. The jail sentence imposed by the court below under Sections 324 IPC is simple imprisonment for one year, and the sentence under Section 323 IPC is simple imprisonment for three months. On a consideration of the various aspects, I feel that jail sentence for four months will be the reasonable and adequate sentence in this case under Section 324 IPC. In lieu of substantial reduction in jail sentence, I feel the absolute necessity of altering the nature of the sentence also. What is imposed by the trial court

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Crl.R.P. No.2244 of 2005

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is simple imprisonment. I find that the accused must undergo rigorous imprisonment in jail.

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In the result, this revision petition is allowed in part. The revision petitioners are found not guilty of the offence under Section 326 IPC, and they are acquitted of the said offence in revision. Accordingly, the conviction and sentence against them under Section 326 IPC in C.C.No. 87 of 1997 of the trial court, confirmed in appeal by the Court of Session, Thodupuzha, in Crl.A.Nos. 197 & 205 of 2004, will stand set aside. But the conviction under Sections 323 and 324 IPC will stand confirmed. The sentence imposed by the court below under Section 324 IPC will stand modified and reduced to rigorous imprisonment for four months. The sentence under Section 323 IPC is maintained. The two sentences will run concurrently.

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Sd/- P.UBAID JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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Jvt/DS 14.12.2017

Scaria v. State of Kerala

Case brief

What is this about?

What did the court decide?

Scaria v. State of Kerala

Case brief

What is this about?

What did the court decide?

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