P.RAJAN @ KARATTA RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners are the accused in Sessions Case No.176/1995 before the Additional Assistant Sessions Judge, Thalassery. They were prosecuted for offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the Indian Penal Code. The prosecution case as stated in paragraph 2 of the judgment of the Assistant Sessions Judge is as follows:

(2.) THE prosecution examined PWs 1 to 11 and marked Exts.P1 to P9 documents as well as MOs 1 to 5. The petitioners did not adduce any defence evidence. After considering the evidence adduced by the prosecution, the Assistant Sessions Judge found the petitioners guilty of offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Section 149 of the Indian Penal Code. Accused Nos. 1 and 4 were found not guilty. The 5th accused had already been deleted from the array of the accused by the prosecution themselves. The Additional Assistant Sessions Judge sentenced the petitioners as follows:

(3.) IN answer to that, the learned Public Prosecutor would contend that the evidence of both PWs 1 and 5 are cogent and convincing and the petitioners could not discredit their evidence in any manner. He submits that the mere fact that either PW1 did not mention the names of the petitioners to the doctor or the doctor has not recorded those names, will not in any way discredit the evidence of PW1, insofar as it is clearly in evidence that PW2 had, on the very same day of the incident, filed F.I. Statement, in which, he has specifically stated that PW1 had told him on the way to the hospital that five persons including the petitioners had attacked him. This contemporaneous document would show that the failure of PW1 to mention the names of the petitioners to the doctor or the failure of the doctor to record the names is of no consequence. It is pointed out that in this respect, the decision of Devinder's case (supra) is not applicable, whereas the Supreme Court had, in the decision of Pattipati Venkaiah v. State of Andhra Pradesh [AIR 1985 SC 1715] held that a doctor is not all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person and his primary effort is to save the life of the person brought to him and to inform the police in medico-legal cases. Therefore, the fact that PW1 did not mention the names of the persons to the doctor or the doctor had not recorded those names is of no consequence, insofar as the evidence available would prove the involvement of the petitioners in the crime. Further it is pointed out that PW2, who gave F.I. Statement, has given evidence to the effect that on the way to the hospital, PW1 himself had told him the names of the assailants, which have been included in the F.I. Statement, which would prove beyond doubt that on the very same day on the way to the hospital, PW1 himself had given the names of assailants and therefore, failure to mention the names of the petitioners to the doctor is of no consequence. Regarding the validity of the recovery under Section 27 of the Indian Evidence Act, it is submitted that PW5 had signed the mahazar and he has given evidence in support of the mahazar. PW9, the investigating officer has also given evidence in support of the recovery. That being so, there is no reason to doubt the validity of the recovery, is the contention raised. According to the learned Public Prosecutor, in evidence, it has come out that there were altogether eight assailants and therefore, even if the other three persons mentioned in the charge sheet have not been identified, there would still be five persons so as to rope in Section 149 as well against the petitioners. He submits that, even otherwise, since specific overt acts have been proved against the petitioners that becomes irrelevant, insofar as they were not included not merely under Section 149 but on the basis of the overt acts proved against them as well.