SANTHOSH S/O GOPI Vs. STATE

JUDGEMENT

(1.) THE revision petitioners are accused 1 and 2 in Sessions Case No.146/1998 on the file of the Assistant Sessions Judge, Kottayam. They along with two others were prosecuted by the Circle Inspector of Police, Changanacherry, alleging offences under Sections 324, 326 and 307 read with 34 IPC. After a full fledged trial, the learned Assistant Sessions Judge arrived at a conclusion that the prosecution had succeeded to establish offences under Sections 324 and 307 read with 34 IPC as against the petitioners and that no offence under Section 326 IPC was proved against the petitioners and no offence against other accused was established. Consequently, the revision petitioners were convicted for offences under Sections 324 and 307 read with 34 IPC and sentenced to rigorous imprisonment for one year and three years respectively for offences under Sections 324 and 307 read with 34 IPC and fine of Rs.5,000/- on each count. The other accused were acquitted. The revision petitioners were also acquitted for offence under Section 326 IPC. Assailing the conviction and sentence, the petitioners preferred Crl.A. No.413/2002 before the Sessions Judge, Kottayam. The Sessions Judge by the impugned judgment dated 1.12.2003 dismissed the appeal after confirming the conviction and sentence. Assailing the legality, correctness and propriety of the judgment of the appellate court confirming the conviction and sentence, this Revision Petition is filed.

(2.) I have heard Sri.Sujesh, the learned counsel appearing fo the revision petitioner and Smt.S. Hyma, the learned Government pleader. Perused the judgments of the courts below. The learned counsel for the petitioner had also taken me through the relevant evidence, particularly the evidence of PWs 1, 2 and 5 and Exts.P1 to P5, P8, DW3 and Ext.D4.

(3.) GOING by the evidence of PWs 1 to 5, I find that the evidence of PWs 1 to 3 and 5 are believable that they had sustained injuries as alleged by the prosecution. Coupled by the evidence of PW4 and Exts.P2 to P5, I find that PW1 had sustained a cut injury on the left shoulder extending to the scalp. PW2 had sustained multiple injury on the right arm and face. PW3 had sustained deep penetrating injury on the middle of the abdomen left side. According to PW4, all the victims had sustained serious injury and the wounds could not be explored and therefore, the victims were referred to the Medical College Hospital, Kottayam after first aid. PW10 was alleged to have treated PWs 1 to 3 and 5. But the prosecution had not produced the case sheet and therefore, PW10 could not recollect and support the prosecution. CW14 had issued the discharge certificates, which were marked as Exts.P14 to P16. But CW14 was reported abroad and could not be examined. PW10 could not identify the handwriting and signature of CW4. Therefore, contents of Ext.P14 to P16 couldn't be proved. In the above circumstance, the prosecution was handicapped in bringing the medical evidence regarding the treatment and the full nature of the injuries sustained to PWs 1 to 3 and 5. It is for that reason alone the petitioners were acquitted by the trial court for offence under Section 326 IPC. The very allegation of the prosecution is that the injury sustained to PW3 was so deep and severe that the diaphragm was exposed and PW2 had sustained fracture of two teeth. The specific case of the prosecution is that the 1st petitioner inflicted injuries on PWs 1 and 3 and the 2nd petitioner inflicted injuries on PWs 2 and 5 with the sword. The sword said to have been used by the 2nd petitioner could not be recovered during the investigation. MO1 was produced as if the sword used by the 1st petitioner. Evidence of PWs 1 to 3 and 5 would show that their evidence is consistent that they were hacked by the petitioners 1 and 2 with the sword. Referring to the nature of injury deposed by PW4 and noted in Exts.P2 to P5, the learned counsel for the petitioners would vehemently argue that the ocular evidence is not in conformity with the medical evidence. Therefore, the incident by which PWs 1 to 3 and 5 sustained injury might have occurred otherwise and therefore, the petitioners are entitled to an order of acquittal. In support of this argument, the decisions reported in Thaman Kumar v. State of Union Territory of Chandigar [AIR 2003 SC 3975], Raj Pal and another v. State of Hariyana [2007 Crl.Law Journal 2926] and Amarsingh and another v. State of Punjab [AIR 1987 SC 826] were also relied upon.