ASOKAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused in C.C. No.1028/1998 before the Judicial First Class Magistrate's Court, Varkala and the appellant in Criminal Appeal No.248/2002 before the Sessions Judge, Thiruvananthapuram against the judgment of the Magistrate, is the petitioner in this criminal revision petition. The prosecution was under Sections 447 & 324 of the Indian Penal Code. The allegation was that the accused trespassed into the house of PWs 1 & 2 with the intention to assault them and assaulted them using a rod causing injuries to PWs 1 & 2. The Magistrate convicted the petitioner and directed the petitioner to undergo simple imprisonment for one year under Section 324 IPC and simple imprisonment for 3 months under Section 447 of IPC. The Sessions Court confirmed the conviction but the sentence of simple imprisonment for one year under Section 324 I.P.C. was reduced to one of simple imprisonment for six months without interfering with the punishment under Section 447 of I.P.C. Those judgments are under challenge in this Crl.R.P.

(2.) The petitioner is challenging the judgments of the lower courts on four grounds. The first is that, the prosecution has not properly proved the recovery of MO1, which was allegedly used for inflicting the injuries on PWs 1 and 2. According to him, no mahazar was prepared for recovery of the said MO. Secondly he would submit that the Investigating Officer who is stated to have recovered the said MO has not been examined. Thirdly, he would submit that there is no independent witness to the incident and fourthly, he would contend that the contradictions and discrepancies in the evidence of PWs 1 and 2, who are the injured in the alleged occurrence are sufficient to hold that the prosecution has not been proved the guilt of the accused beyond a reasonable doubt. Therefore counsel for the petitioner argues for an acquittal on those grounds.

(3.) The learned Public Prosecutor would vehemently oppose the contentions of the petitioner. According to her, MO1 was recovered from the scene of occurrence and the same has been proved through the Head Constable, who was assisting the Investigating Officer. According to the learned Public Prosecutor, non -examination of the Investigating Officer will not affect the prosecution case in any manner, insofar as the evidence of PWs 1 and 2 are sufficient to bring home the guilt of the petitioner beyond any reasonable doubt. It is further submitted that even assuming that there are some discrepancies in the evidence of PW1 and PW2, in view of the decision of the Hon'ble Supreme Court in Bhajan Singh v. State of Haryana [2011 (3) KLT SN 59 (Case No.57) SC], evidence of injured witness should be relied upon unless there are grounds for rejection of the evidence on the basis of major contradictions and discrepancies. According to the learned Public Prosecutor there are no major contradictions and discrepancies which would discredit the evidence of PWs 1 and 2. Therefore, the learned Public Prosecutor would argue to sustain the judgments of the courts below.