P JOHNSON Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision petition is directed questioning the legality, propriety and correctness of the judgment delivered by the Sessions Judge, Manjeri in Criminal Appeal No. 20/1990. This judgment of the Sessions Judge has confirmed the conviction rendered by the Judicial First Class Magistrate, Perinthalmanna delivered in CC No. 12/89. The learned Magistrate, out of the 12 accused facing the charges before him found only four accused who are the revision - petitioners herein guilty under S.143, S.147, S.148, S.323 and S.326 of the Indian Penal Code and thereby sentenced to undergo each of them simple imprisonment for 2 years and also to pay a fine of Rs. 500/-. The judgment of the learned Magistrate in the above appeal regarding conviction under S.326, IPC was confirmed in the Sessions Court. But with regard to the sentence, accused Nos. 1 and 6 were sentenced to undergo simple imprisonment for 6 months, accused No. 8 was sentenced to undergo simple imprisonment for one year and accused No. 4 was sentenced to undergo simple imprisonment for 2 years and their conviction and sentence under the other S.323, S.143, S.147 and S.148, IPC were confirmed.

(2.) The learned counsel appearing for the revision - petitioners submitted the following points for consideration :

(3.) Now I will take up the contentions of both the sides and consider them in the light of evidence on record for decision. Needless to say that this Court in the field of revision has got limited jurisdiction. However, when an apparent and incurable infirmities are committed by the appellate Court, this Court's interference becomes inevitable. In a criminal prosecution, FIR is an essential one. If there falls shadow on FIR, it will shake the root of the prosecution case and, therefore, importance has to be attached. No doubt, as observed by the Sessions Judge, FIR is not an encyclopaedia and it puts the wheel of law in motion. However, it has to be borne in mind that a well moulded starting point is the foundation of victory. The inference that the true and first report was screened as it was not supporting the prosecution story has to be ruled out by the prosecution. In this case on hand there is no dispute that all the accused including the revision - petitioners and the injured and the witnesses bail from the same locality. Hence there will not arise the question of mistaken identity as rightly argued by the learned Counsel for the revision - petitioners. In the F.I.R. PW 1 has stated that they were assaulted by named accused Nos. 1 and 7 and a few others. But during the course of investigation, the names of the other accused have been brought in. According to the prosecution, the names of the other accused have been spoken to by the injured witnesses and other eye - witnesses. The evidence of PW 1 in this context assumes great importance. He gave the names of all the accused and also about their overt acts. But Ext. P1 shows the names of seven accused and other names are not found therein. The overt acts attributed to the accused are also not found in Ext. P1. In this situation it gives room to draw an inference that what was really narrated by PW 1 as the first complaint to the Head Constable has been suppressed by the prosecution and the present FIR has been brought into light. To expel such inference there is nothing in support of prosecution. Suppression of the earlier report itself is sufficient to throw a shadow of doubt in the case of the prosecution.