Jenson J.Andrews vs State Of Kerala

Bechu Kurian Thomas, J

The revision petitioner is the 2nd accused in C.C.No.343/1997 on the files of the Judicial First Class Magistrate's Court, Kollam. He stands convicted for the offence under Section 324 of the Indian Penal Code, 1860 and was sentenced to pay a fine of Rs.3,000/- in default of payment to undergo rigorous imprisonment for one month. On appeal to the Sessions Court, Kollam in Crl.A.No.92/2000, the conviction and sentence imposed upon the petitioner was confirmed. Aggrieved by the said finding of guilt and the sentence of fine imposed upon him, this revision petition has been preferred.

According to the prosecution, on 18.05.1997, the revision petitioner along with the first accused entered into the property where PW1 was residing and after wrongfully restraining the defacto complainant assaulted him and inflicted an injury on his left eye brow and thereby committed the offences alleged.

In order to prove the prosecution case, PW1 to PW7 were examined and Ext.P1 to Ext.P5 were marked while the defence marked contradictions in the evidence of PW2 as D1 and D2.

After analysing the evidence adduced, the learned Magistrate acquitted the first accused for all the offences alleged. However, the learned Magistrate found the revision petitioner being the 2nd accused, guilty of the offences under Section 324 of IPC and sentenced him to a fine of Rs.3,000/-. The first accused was acquitted for the offence under Section 324 of IPC while both accused were acquitted for the offences under Sections 447, 341 and 323 r/w Section 34 of IPC. In the appeal preferred before the Sessions Court, Kollam, by judgment dated 09.04.2023, the learned Sessions Judge dismissed the appeal.

Adv.S.Soorya Gayathry, in her persuasive arguments, submitted that the conviction of the revision petitioner is per se erroneous and is liable to be interfered with. In support of her contentions, it was submitted that the trial court as well as the Sessions Court had failed to take into reckoning the flaws in the prosecution evidence like the absence of recovery of the weapon of offence, absence of any eyewitnesses to the incident except the unreliable testimony of PW4. The contradictions in the testimonies of the prosecution witnesses and the improvisation of the prosecution witnesses regarding the nature of assault are significant according to the learned counsel. The learned counsel vehemently contended that the aforesaid infirmities in the prosecution evidence should have led the court to grant the benefit of doubt to the accused. Considering the surrounding circumstances including the order of eviction that was already issued against the defacto complainant, the learned counsel asserted that the nature of injury on the eye brow of the defacto complainant indicated a self inflicted injury and both the courts in the impugned judgment failed to appreciate the said contentions and therefore the revision petitioner is entitled for a total acquittal.

Smt.Sreeja V., the learned Public Prosecutor, on the other hand contended that PW4 being the wife of PW1 and a resident of the house where the incident occurred is the natural witness and that her evidence cannot be shrugged aside as interested. Further, it was submitted that there was no question put to the Doctor who was examined as PW5, as to the possibility of the injury being self inflicted. It was submitted that in such circumstances, the said contention does not merit any consideration. It was further submitted that in any event, the sentence imposed on the petitioner being only one of fine, no serious prejudice would be caused and having regard to the nature of jurisdiction exercised under Section 397 of the Code of Criminal Procedure, 1973, no interference is warranted.

While appreciating the contentions advanced by the learned counsel for the revision petitioner as well as the learned Public Prosecutor, it is relevant to notice the findings of the trial court that the petition for eviction filed under the Kerala Buildings (Lease and Rent Control) Act, 1965 against PW1 was allowed on the ground of arrears of rent and another civil suit was filed by PW1 against the accused seeking protection against possible eviction. It is also necessary to bear in mind that the various offences alleged against the revision petitioner including those under Sections 447, 341 and 323 were also found against the prosecution. The crucial evidence of the prosecution is that of PW4 who is the only alleged eye witness to the incident. A careful scrutiny of the evidence of PW4 reveals that she had not actually seen the incident but came to the spot from inside the house only after hearing the cry of PW1. Therefore, in the nature of evidence adduced by the prosecution, other than the solitary statement of PW1, there is no material to show that the 2nd accused had inflicted an injury on PW1. The nature of injury including its depth indicates a possibility of a self inflicted injury as contended by the counsel. In this context, the defence version that PW1 on being questioned about his refusal to vacate the building went inside and came out with an injury on his left eye brow assumes relevance. Though the said statement has no evidentiary value as such, it creates a doubt on the prosecution version, especially when there is absence of any independent witness who had seen the incident other than PW1 and when considered in the light of the nature of the injury occasioned. Further, though the absence of recovery of weapon is not fatal to the prosecution case, as held in many cases including State through the Inspector of Police v. Laly alias Manikandan and Another [2022 SCC Online SC 1424] still, in the peculiar facts of the present case along with various other infirmities in the evidence adduced by the prosecution, the absence of recovery of weapon assumes relevance.

As rightly argued by Adv.Soorya Gayathry, the contradiction in the evidence of witnesses and the variation and development brought in by PW1 during the evidence stage indicates a serious flaw in the prosecution evidence.

Having regard to the aforesaid infirmities in the prosecution evidence, I am of the view that the conviction of the revision petitioner being the 2nd accused, for the offence under Section 324 IPC is irregular and improper. Petitioner is entitled to the benefit of doubt and his conviction is liable to be interfered with.

Therefore, the conviction and sentence imposed upon the revision petitioner for the offence under Section 324 of IPC in C.C.No.343/1997 on the files of the Judicial First Class Magistrate's Court, Kollam as confirmed in Crl.A.No.92/2000 on the files of the Sessions Court, Kollam is hereby set aside and the accused is acquitted.

The criminal revision petition is allowed as above.