Partly allowed

Joseph @ Jomon v. State of Kerala

Kerala HC11 Aug 2023Crl.Rev.Pet/133/2016

Case brief

AI extract

What is this about?

In a criminal revision petition regarding Section 326 IPC, the High Court acquitted the second accused due to lack of substantive evidence and recovery of weapon, while confirming the conviction and sentence of the first accused based on corroborated evidence.

What did the court decide?

Conviction and sentence against the second accused set aside; second accused acquitted. Conviction and sentence against first accused confirmed; directed to surrender.

Joseph @ Jomon Vs State of Kerala — Criminal Trial and Appeal | 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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FRIDAY, THE 11^TH DAY OF AUGUST 2023 / 20TH SRAVANA, 1945

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CRL.REV.PET NO. 133 OF 2016

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CRIME NO.207/2006 OF MUNAMBOM POLICE STATION, ERNAKULAM

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AGAINST THE ORDER/JUDGMENT IN CRA 95/2013 OF ADDITIONAL DISTRICT

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COURT & SESSIONS COURT - II, NORTH PARAVUR / I ADDITIONAL MACT,

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NORTH PARAVUR

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CC 25/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH

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PARAVUR

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REVISION PETITIONERS/APPELLANTS/ACCUSED:

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1 JOSEPH @ JOMON AGED 39 YEARS

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S/O EARNEST @ CHINNAPPAN, KUREKKATTU HOUSE, PULIMUTTUBHAGAM, MUNAMBAM KARA, KUZHUPPILLY VILLAGE, ERNAKULAM-683515.

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2 BABU AGED 35 YEARS S/O EARNEST @ CHINNAPPAN, KUREKKATTU HOUSE, PULIMUTTUBHAGAM, MUNAMBAM KARA, KUZHUPPILLY VILLAGE, ERNAKULAM-683515.

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BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SMT.C.LEENA

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RESPONDENT/RESPONDENT/COMPLAINANT:

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1 STATE OF KERALA SUB INSPECTOR OF POLICE, MUNAMBAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 ANTONY ( SOUGHT TO BE IMPLEADED ) S/O LAWRENCE, KURISINGAL HOUSE, KUZHUPPILLY, PALLIPORT.P.O., ERNAKULAM ( SOUGHT TO BE IMPLEADED )

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BY ADV No Advocate

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.REV.PET NO. 133 OF 2016

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O R D E R

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Dated this the 11^th day of August, 2023

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This revision petition has been filed under Section 397 and

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401 of the Code of Criminal Procedure (hereinafter referred to 'Cr.P.C.' for short) and the revision petitioners, who are accused Nos.1 and 2 in C.C.No.25/2007 on the files of the Judicial First Class Magistrate Court-I, North Paravur and the appellants in Crl.A.No.95/2013 on the files of the Additional District and Sessions Court-II, North Paravur, impugns judgment in the above case.

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Heard the learned for the revision petitioner and the learned Public Prosecutor. Perused the records.

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I shall refer the parties in this revision petition as

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'accused' and 'complainant', for convenience.

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The prosecution case is that at about 9.45 am on 17.08.2006, the first accused attempted to beat on the head of the defacto complainant by using an iron rod and when the same was restrained by using his right hand, the same caused injury

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CRL.REV.PET NO. 133 OF 2016 3

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and fracture on his right hand. Further case is that, the second accused also beat on the left hand of the defacto complainant.

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This is the premise on which the prosecution alleges commission of offence punishable under Section 326 read with Section 34 of IPC.

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The trial court secured the presence of accused for trial and finally tried the matter. During trial, PW 1 to PW8 were examined, Exts.P1 to P7 and MO1 marked on the side of the prosecution.

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On completion of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. and opportunity was provided to hi m, to adduce defence evidence. But no evidence was adduced.

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The learned Magistrate appreciated the evidence and found that accused Nos.1 and 2 committed offence punishable under Section 326 read with Section 34 of IPC. Accordingly, they were convicted and sentenced as under:

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CRL.REV.PET NO. 133 OF 2016

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“22. In the result, on conviction, the accused are sentenced to undergo Rigorous Imprisonment for a term of 6 (six) months each and to pay a fine of Rs.5,000/- (Rupees five thousand only) each, in default, to undergo simple imprisonment for a further term of 2 (two) months each, for the offence punishable u/s.326 r/w S.34 of IPC. If the fine is realized, the same can be given to PW1 as compensation u/s.357(1) Cr.P.C. The material object iron rod can be confiscated after the period of appeal”.

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Eventhough the judgment of the trial court was challenged before the appellate court by filing Crl.A.No.95/2013, as per judgment dated 04.11.2015, the learned Additional District and Sessions Judge-II, North Paravur dismissed the appeal, confirming the conviction and sentence imposed by the trial court.

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The learned counsel for the revision petitioner argued that even though the prosecution has a case that the first accused used an iron rod to beat on the head of the defacto complainant and in turn, the same caused injury and fracture on

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CRL.REV.PET NO. 133 OF 2016 5

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his right hand, the iron rod used by the first accused alone was recovered. It is also pointed out that the iron rod alleged to be used by the sescond accused to beat on the left hand of the defacto complainant was not taken into custody. Therefore, the prosecution case is in the midst of doubts. It is also pointed out that the courts below entered into conviction and sentence, merely relying on the solitary version of the defacto complainant in a case where two occurrence witnesses viz., PW 2 and PW 3 turned hostile to the prosecution.

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In this case, this Court is exercising the limited power of revision. However, on perusal of the evidence of PW1, it is crystal clear that the defacto complainant did not sustain any injury or fracture at the instance of the 2^nd accused. even though PW1 given evidence that the second accused also beat on the left hand of PW1 (the defacto complainant). At the same time, PW1 given candid evidence that the 1^st accused beat him by using an iron rod and in turn he sustained injuries and fracture on ulna. He also identified MO1, iron rod used by the 1^st

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CRL.REV.PET NO. 133 OF 2016 6

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accused.

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In corroboration to the version of PW1, I have perused the evidence of PW4 as well as Ext.P2 wound certificate. PW4, Dr.Vineetha given evidence that she had examined PW1, Antony, aged 57 years and noted injuries, viz, contusion 5 x 5 cm, lacerated wound over right forearm near wrist and fracture on third ulna right , fracture of forearm bones. It is deposed by the Doctor further that the alleged cause of history is stated as attack by Joy mon (A1) and Babu (A2). It is also deposed by the Doctor that on X-ray examination, fracture lower third of ulna right side was diagnosed and the reason for the occurrence could be as alleged. It is relevant to note that eventhough PW1 given evidence as to beat on his left hand by the second accused, in fact, the same did not cause any injury even by the statement of PW1 and as per Ext.P2 wound certificate. It is also to be noted that the iron rod alleged to be used by the second accused also not taken into the custody by the police as part of investigation. Thus, it appears that no

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CRL.REV.PET NO. 133 OF 2016 7

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substantive evidence available to see that the second accused committed offence punishable under Section 326 of IPC as defined under Section 320 of IPC. Therefore, the courts below went wrong in convicting and sentencing the second accused, on the finding that he has committed the offence under Section 326 of IPC read with Section 34 of IPC since the prosecution records do not suggest that the second accused along with the first accused, in furtherance of their common intention, assaulted the defacto complainant to to cause grievous hurt in any manner. In view of the matter, conviction and sentence as against the second accused stand set aside.

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As far as the complicity of the first accused is concerned, the unshaken evidence of PW1 supported by the evidence of PW4, and Ext.P2, wound certificate appears to be convincing, supported by the evidence of the Investigating Officer, PW8. Further, Ext.P3 mahazar also proved the evidence of PW5. Thus, it appears that the concurrent verdicts of conviction entered by the trial court in so far as the first accused

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CRL.REV.PET NO. 133 OF 2016 8

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is concerned are liable to be maintained. Coming to the sentence, the trial court imposed six months imprisonment and to pay fine of Rs.5,000/- as against the first accused and in default of payment of fine, to undergo imprisonment for a period of two months more. Rs.5,000/- is ordered to be given as compensation to PW1 under Section 357(1)(b) of Cr.P.C.

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The learned counsel for the revision petitioner sought leniency in the matter of sentence imposed on the 1^st accused. In this connection, it is to be noted that the punishment provided for the offence punishable under Section 326 of IPC is punishment 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. For more clarity, Section 326 of IPC is extracted as under:

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“326. Voluntarily causing grievous hurt by dangerous

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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 poison or any

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CRL.REV.PET NO. 133 OF 2016

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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 matter, no leniency in sentence is

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warranted since the sentence imposed found to be reasonable.

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In the result, this Crl.R.P. stands allowed in part. The conviction and sentence imposed against the second accused stand set aside. The second accused is acquitted. He is at his liberty. Consequently, the bail bond executed by the revision petitioner stands discharged.

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The conviction and sentence imposed against the first accused stand confirmed and the first accused is directed to surrender before the trial court within two weeks from today to undergo the sentence. If he fails to do so, the trial court is directed to execute the sentence without fail.

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CRL.REV.PET NO. 133 OF 2016

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Registry is directed to forward a copy of this order to the

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trial court for information and execution of the sentence without

fail.

Sd/-

A. BADHARUDEEN

JUDGE

nkr

CRL.REV.PET NO. 133 OF 2016

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APPENDIX OF CRL.REV.PET 133/2016

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PETITIONER ANNEXURES

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Annexure A AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT DATED 19/7/2023

Joseph @ Jomon v. State of Kerala

Case brief

What is this about?

What did the court decide?

Joseph @ Jomon v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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