Allowed

Ajayan @ Sumesh @ Motta v. State of Kerala

Kerala HC9 Aug 2023Crl.Rev.Pet/12/2016

Case brief

AI extract

What is this about?

Kerala HC allowed Criminal Revision Petitions challenging convictions and sentences in murder attempt cases. Court upheld convictions based on reliable sole eyewitness evidence but modified sentences from rigorous imprisonment to lighter terms with fines, directing surrender.

What did the court decide?

Conviction upheld; sentence modified to simple imprisonment of one month and fine for 1st accused, rigorous imprisonment of eighteen months and fine for 3rd accused; bail bond canceled.

Ajayan @ Sumesh @ Motta Vs State of Kerala — Cheating and Forgery | Kerala HC (2023)

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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 A. BADHARUDEEN

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WEDNESDAY, THE 9^TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945

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CRL.REV.PET NO. 1737 OF 2015

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AGAINST THE JUDGMENT PASSED BY THE II ADDITIONAL SESSIONS COURT, KOLLAM IN CRL.APPEAL NO.239/2014 ON 30.09.2015 CONFIRMING THE CONVICTION AND SENTENCE PASSED BY THE PRINCIPAL ASSISTANT SESSIONS COURT, KOLLAM IN S.C.NO.2035/2011

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REVISION PETITIONER/APPELLANT/ACCUSED NO.3:

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SUMESH AGED 40 YEARS, S/O.PRAHLADAN, CHARUVILAKKOTTA, VADAKKETHIL HOUSE, PERUMAN KIZHAKKE CHERRY, PERUMON VILLAGE.

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BY ADV SRI.C.P.UDAYABHANU

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE A.S.I.OF POLICE(CRIME NO.1251/10), ANCHALUMOODU POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.

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SR PP - P G MANU

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.08.2023 ALONG WITH CRL.R.P. NO.12 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016

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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 A. BADHARUDEEN

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WEDNESDAY, THE 9^TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945

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CRL.REV.PET NO. 12 OF 2016

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AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE II ADDL. SESSIONS JUDGE, KOLLAM DATED 30.09.2015 IN CRL.APPEAL NO.239 OF 2014 WHICH AROSE FROM THE JUDGMENT OF CONVICTION AND SENTENCE DATED 19.09.2014 IN S.C.NO.2035 OF 2011 ON THE FILES OF THE PRINCIPAL ASSISTANT SESSIONS JUDGE, KOLLAM

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REVISION PETITIONER/APPELLANT/ACCUSED NO.1:

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AJAYAN @ SUMESH @ MOTTA S/O. ANTONY, AJAYA NIVAS, PERUMON, KIZHAKKE CHERRY, PANAYAM VILLAGE. BY ADVS. SRI.ARUN BABU SMT.R.DEVIKA

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RESPONDENT/APPELLANT/ACCUSED:

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STATE OF KERALA REPRESENTED BY ADDITIONAL SUB INSPECTOR OF POLICE, ANCHALUMOOD POLICE STATION - 691 001, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI – 31

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016

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ORDER

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Dated this the 9 th day of August, 2023

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These revision petitions have been filed under Sections 397 and 401 of Code of Criminal Procedure (hereinafter referred as Cr.P.C. for convenience). The revision petitioner in Crl.R.P. No.1737 of 2015 is the 3^rd accused and the revision petitioner in Crl.R.P. No.12 of 2016 is the 1^st accused in S.C. No.2035/2011 and 332/2012 on the files of the Principal Assistant Sessions Court, Kollam is challenging the common

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judgment in these cases as well as the judgment in Crl.A. No.239/2014 of the Court of Additional Sessions Judge-II, Kollam, arising therefrom.

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Heard the respective counsel appearing for the revision petitioners/accused Nos.1 and 3 as well as the learned Public Prosecutor, representing State.

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The prosecution case is that, at about 13.40 hours on 12.11.2010, accused Nos. 1 to 5 and other 3 identifiable assailants formed themselves into an unlawful assembly, carrying deadly weapons such as, iron rod and idikkatta, with

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016

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knowledge that they are all members of the said assembly, in prosecution of their common object and assaulted the defacto complainant with intention to commit culpable homicide not amounting to murder. In this occurrence the defacto complainant sustained very serious injuries including ribs fracture, though he survived. Thus, the prosecution allegation is that the accused committed offences punishable u/s 143, 147, 148, 323, 324, 294(b), 427, 326 and 308 r/w 149 IPC.

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The learned Assistant Sessions Judge recorded evidence after securing presence of the accused for trial and tried the case. During trial, PWs 1 and 11 were examined and Exts.P1 to P18 were marked on the side of the complainant. MO1 and MO2 were also marked. Two contradictions, Exts.D1 and D2, marked while examining PW2. After questioning the accused under Section 313(1)(b) of the Cr.P.C., when opportunity was given to the accused to adduce defense evidence, they did not avail the opportunity.

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On appreciation of evidence, the learned Assistant Sessions Judge convicted and sentenced accused Nos. 1 and 3 as under:

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016

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“The 1^st accused is sentenced to undergo rigorous imprisonment for 1 year and pay fine of Rs.15,000/-, in default to undergo simple imprisonment for 30 days for offence u/s 324 IPC. The 3^rd accused is sentenced to undergo rigorous imprisonment for 2 years and pay fine of Rs.25,000/-, in default to undergo simple imprisonment for 30 days for offence u/s 326 IPC. If fine amount is realised, the entire amount shail be paid as compensation to PW2 u/s 357(1) CrPC. MO1 and MO2 be valueless are ordered to be destroyed after appeal period. The periods of detention of 3^rd accused from 29.11.2010 to 05.01.2011 is allowed as set off u/s 427 CrPC. The accused 1 and 3 are acquitted for offence punishable u/s 143, 147, 148, 294(b), 427 and 308 r/w 149 IPC. The accused 2, 4 and 5 are acquitted for offence punishable u/s 143, 147, 148, 323, 324, 294(b), 427, 326 and 308 r/w 149 IPC. As Al is convicted under section 324 IPC, no separate sentence u/s 323 IPC is awarded.”

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6. Though the revision petitioners challenged the

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conviction and sentence imposed by the trial court by way of appeal before the Appellate Court, vide order dated 30.09.2015 in Crl.A. No.239/2014 the Appellate Court also confirmed the conviction as well as sentence imposed by the trial court.

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Crl.R.P No. 1737 of 2015 &

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Crl.R.P No. 12 of 2016

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In this matter, the 1^st accused was found guilty for the offence under Section 324 of IPC alone. Whereas the 3^rd accused found to have committed the offence under Section 326 of IPC.

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While challenging the conviction imposed against the 3^rd accused, the learned counsel for the revision petitioner/3^rd accused submitted that, in this case, the solitary evidence of PW2 was relied upon by the trial court and Appellate Court to enter into conviction. It is submitted that, even though a copassenger along with PW2, was cited by the prosecution to prove the occurrence, he did turn hostile to prosecution. The main challenge raised by the learned counsel for the revision petitioner/3^rd accused is the question of identity of the 3^rd accused by PW2. According to him, PW2 did not have any previous acquaintance with the 3^rd accused and his identification is insufficient to prove that it was the 3^rd accused who committed the offence. Similar contentions were raised by the learned counsel appearing for the 1^st accused also.

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In view of this challenge, the evidence of PW2 is gone through. PW2 narrated the occurrence whereby he

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Crl.R.P No. 12 of 2016

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Crl.R.P No. 1737 of 2015 &

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sustained ribs fracture, during chief examination and given evidence that the 1^st accused entered into the car and hit on the forehead of PW2 by using an idikkatta. The 3^rd accused beat on him with an iron rod which resulted in fracture of his 9^th and 10^th ribs. The injuries sustained by PW2 is corroborated by the evidence of PW8, the doctor who issued Ext.P2 Discharge card in relation to PW2. Further, Ext.P3 wound certificate also would show the injuries sustained by PW2. Regarding identification, the 3^rd accused was identified by PW2 and he had given evidence that he identified the 3^rd accused, when he was arrested by the Police without instruction from the Police.

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Therefore, it appears that the challenge as regards to identity of the 3^rd accused raised in the revision petition cannot be countenanced. It is relevant to note that the 'idikkatta' alleged to be used by the 1^st accused was not recovered by the Investigating Officer or produced before the Court as material object. However, MO1 and MO2 iron rods were identified and the same are the weapons used by the 3^rd accused to beat PW2 which resulted in fracture of his 9^th and 10^th ribs.

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Regarding the identity of the 1^st accused, the same is

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016

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not in dispute since PW2 given evidence that the 1^st accused was known to him prior to the occurrence and he identified the 1^st accused before the Court also. The law is well settled that when the evidence solitary injured witness is wholly reliable, the same can be the basis of conviction, without insisting for corroboration. In this case, the evidence of PW2 was found as wholly reliable and thereby the Courts below entered into conviction relying on the evidence of PW2. In fact, the available materials are evaluated within the limited power of revision, nothing substantiated to revisit the concurrent verdicts of conviction imposed by the trial court as well as the Appellate Court. However, the learned counsel for the revision petitioners/1^st and 3^rd accused sought leniency in the matter of sentence on the submission that the 3^rd accused was sentenced by the trial court to undergo rigorous imprisonment for a period of two years and pay fine of Rs.25,000/- for the offence punishable under Section 326 of IPC and to undergo simple imprisonment for 30 days in default of payment of fine. Further, the 1^st accused was found guilty for the offence punishable under Section 324 of IPC. Accordingly he was sentenced to

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016 9

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undergo rigorous imprisonment for a period of one year and pay fine of Rs.15,000/- and simple imprisonment for 30 days was also ordered in default of payment of fine.

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As far as the conviction and sentence imposed on the 1^st accused in the facts of the given case is concerned, the same requires modification. Therefore, the conviction and sentence imposed on the 1^st accused is modified and the 1^st accused is sentenced to undergo simple imprisonment for one month and to pay fine of Rs.5,000/- and in default of payment of fine he shall undergo default imprisonment for ten days. In the result, Crl.R.P. No.12 of 2016 stands allowed in part by modifying the sentence as above.

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Coming to the sentence imposed against the 3^rd accused, the maximum punishment provided for the offence under Section 326 of IPC is as under:

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“ 326. Voluntarily causing grievous hurt by dangerous weapons or means- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any

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Crl.R.P No. 12 of 2016

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Crl.R.P No. 1737 of 2015 &

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poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with '[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

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In view of the leniency sought for by the learned counsel for the revision petitioner/3^rd accused, I am inclined to modify the sentence imposed against the 3^rd accused. Hence, the sentence stands modified as under.

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In t he result, Crl.R.P No.1737/2015 succeeds in part and is accordingly allowed in part. Therefore, the 3 rd accused is sentenced to undergo rigorous imprisonment for eighteen months and pay fine of Rs.25,000/-, for offence u/s 326 IPC. In default of payment of fine, the accused shall undergo default imprisonment for a period of forty five days.

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16. Fine of Rs.25,000/-, if realized, shall be given as compensation to the complainant under Section 357(1)(b) of Cr.P.C.

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The order suspending sentence and granting bail to the

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Crl.R.P No. 1737 of 2015 & Crl.R.P No. 12 of 2016

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revision petitioners stands vacated and the bail bond executed by them stand canceled. Therefore, the revision petitioners/accused Nos.1 and 3 are directed to surrender before the trial court on 22.0 8.2023 at 11.00 am to undergo the modified sentence and to pay the fine. If the revision petitioners/accused Nos.1 and 3 fail to surrender, as directed, the trial court shall execute the modified sentence as per law without fail. The execution of sentence stands deferred till 21.08.2023.

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Registry is directed to forward a copy of this order to the trial court for information and compliance, within seven days.

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Sd/-

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A. BADHARUDEEN JUDGE

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Ajayan @ Sumesh @ Motta v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ajayan @ Sumesh @ Motta v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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