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2026 DAILYLAW 586 (KER)

Azad, S/O. Saidu v. State of Kerala, Represented By The Public Prosecutor

2026-05-19

Jobin Sebastian

body2026
ORDER : Jobin Sebastian, J. This criminal revision petition has been filed under Section 397 and 401 of the Code of Criminal Procedure, challenging the judgment dated 31.05.2014 in Criminal Appeal No.144/2008 on the file of the Additional Sessions Court, Irinjalakkuda, which arose out of C.C. No.533/2006 on the file of the Judicial First Class Magistrate Court-I, Kodungallur. The revision petitioners herein are the first and second accused in the above case. 2. The prosecution case is that on 04.05.2005 at about 8:45 p.m., the accused, in furtherance of their common intention, placed a telephone post across the road with the intention of intercepting the motorcycle ridden by CW1 (PW6). On noticing the obstruction, when PW6 stopped the motorcycle, the first accused allegedly assaulted PW6 on his face with an iron stick, causing the loss of three teeth in the upper jaw and injuries to his lips and forehead. In the meantime, the second accused allegedly struck PW6 on his right lower leg with another iron stick, thereby causing fracture injuries. Thus, the accused are alleged to have committed offences punishable under Sections 341, 323, and 326 read with Section 34 of the Indian Penal Code. 3. During trial, from the side of the prosecution, PW1 to PW10 were examined and marked Exts.P1 to P5. MO1 and MO2 were identified and exhibited. After the closure of the prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C, during which they denied all the incriminating circumstances brought out against them in evidence. As it was not a fit case to acquit the accused under Section 232 of Cr.P.C, they were directed to enter on their defence and to adduce any evidence that they may have in support thereof. However, no evidence whatsoever was produced from the side of the accused. 4. Finally, the learned Magistrate found both the accused guilty of the offences punishable under Sections 341, 324 and 326 r/w 34 of the IPC and were convicted. The accused were sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5,000/- each for the offence punishable under Section 326 of the IPC. Further, the accused were ordered to pay a fine of Rs.500/- each for the offence punishable under Section 341 of IPC and to pay a fine of Rs.1,000/- each for the offence punishable under Section 324 of IPC. Further, the accused were ordered to pay a fine of Rs.500/- each for the offence punishable under Section 341 of IPC and to pay a fine of Rs.1,000/- each for the offence punishable under Section 324 of IPC. In default of payment of fine, the accused were ordered to undergo simple imprisonment for a further period of six months. 5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No. 144/2008 before the Sessions Court. The learned Additional Sessions Judge confirmed the finding of the trial court that the accused are guilty of the offence punishable under Sections 341, 324 and 326 r/w 34 of the IPC. However, the sentence imposed by the trial court for the offence punishable under Section 326 of IPC was modified and reduced to simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- each. In default of payment of fine, the accused were directed to undergo simple imprisonment for a further period of three months. The sentence imposed for the offences punishable under Sections 341 and 324 IPC were confirmed. Aggrieved thereby, both the accused have preferred the present revision petition. 6. Heard Smt. Saneeta Elizhabath Shiju, learned amicus curiae, and Sri G. Sudheer, learned Public Prosecutor. The records were also perused. 7. The learned amicus curiae submitted that the judgment of conviction and the order of sentence passed against the revision petitioners are illegal and contrary to the facts and evidence on record. It was contended that the trial court placed undue reliance on the testimony of PW6 while ignoring the fact that the independent witnesses cited by the prosecution to prove the occurrence had turned hostile. According to the learned amicus curiae, the prosecution case itself discloses the existence of prior disputes relating to a vehicle transaction between the brother of the first accused and PW6 and, therefore, the possibility of false implication cannot be ruled out. It was further contended that, in view of the admitted prior enmity between the parties, the trial court as well as the appellate court ought to have exercised greater care and circumspection while placing reliance on the uncorroborated testimony of PW6. It was further contended that, in view of the admitted prior enmity between the parties, the trial court as well as the appellate court ought to have exercised greater care and circumspection while placing reliance on the uncorroborated testimony of PW6. It was also argued that the identification of the accused by the witnesses before the court is highly doubtful, as the incident had occurred during nighttime and the source of light has not been convincingly established by the prosecution. 8. In response, the learned Public Prosecutor submitted that the trial court as well as the appellate court rightly relied upon the evidence of PW6, particularly since he is an injured witness. According to the learned Public Prosecutor, the testimony of an injured witness carries greater evidentiary value, especially when it stands corroborated by the medical evidence adduced in the case. It was further submitted that there is no rule of law requiring the testimony of an injured witness to be corroborated by independent evidence before it can be acted upon. The learned Public Prosecutor also pointed out that the evidence of PW6 regarding the source of light at the time of occurrence is reliable and trustworthy. It was contended that, as PW6 was previously acquainted with the accused, the identification of the accused before the court is dependable, notwithstanding the absence of a prior test identification parade. 9. Before delving into the question as to whether any interference with the impugned judgment is warranted, it must be borne in mind that it is now well settled that a court exercising revisional jurisdiction can interfere with the orders or judgments of the courts below only when such orders or judgments suffer from illegality, impropriety, or material irregularity. Unless the judgment passed by the learned Magistrate or the appellate court is perverse, or the view taken is wholly unreasonable, or there is non-consideration of relevant material, or palpable misreading of the evidence on record, the revisional court would not be justified in interfering with the same. The revisional court cannot function as an appellate court and reappreciate the evidence merely because another view is possible. 10. The revisional court cannot function as an appellate court and reappreciate the evidence merely because another view is possible. 10. In State of Kerala v. Jathavedan Namboodiri [AIR 1999 SC 981], the Hon'ble Supreme Court held thus: “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 11. Keeping in mind the above principles, and reverting to the facts of the present case, it can be seen that the prosecution allegation is that PW6 was brutally attacked by the accused using deadly weapons. Even according to the prosecution, the genesis of the incident lay in a dispute arising out of a vehicle transaction wherein PW6 had purchased a vehicle which was involved in a criminal case, from the brother of the first accused. According to the prosecution, since the vehicle continued to stand in the name of the first accused’s brother even after its transfer, PW6 was constrained to furnish the accused’s brother’s name before the police. Aggrieved by the same, the accused allegedly committed the present offence. 12. In order to bring home the guilt of the accused, the prosecution examined altogether ten witnesses as PW1 to PW10. Among them, PW1 to PW3 were independent witnesses cited by the prosecution to prove the occurrence. However, all of them turned hostile to the prosecution. 13. As evident from the records, the criminal law was set in motion in this case based on the First Information Statement (FIS) given by the injured to PW9, the Sub-Inspector of Police attached to Mathilakam Police Station. On the basis of the said FIS, the FIR was registered. However, all of them turned hostile to the prosecution. 13. As evident from the records, the criminal law was set in motion in this case based on the First Information Statement (FIS) given by the injured to PW9, the Sub-Inspector of Police attached to Mathilakam Police Station. On the basis of the said FIS, the FIR was registered. Thereafter, investigation was conducted, which culminated in the filing of the final report against the accused. 14. In order to establish the guilt of the accused, the prosecution mainly relied upon the evidence of PW6, the injured witness. During his examination before the court, PW6 vividly narrated the entire incident. PW6 also deposed regarding the alleged motive in a convincing manner. Since the present case is based on direct ocular evidence, proof of motive assumes comparatively lesser significance. Nevertheless, proof of motive certainly lends additional assurance to the prosecution case, though this is not a case resting on circumstantial evidence. 15. PW6 categorically deposed that he sustained grievous injuries in the incident, including a fracture to his leg and loss of teeth. The learned amicus curiae assailed the evidence of PW6 mainly on the ground that the same is not corroborated by any independent evidence. However, I am unable to accept the said contention for more than one reason. Firstly, there is no law that the testimony of an injured witness can be acted upon only if it is corroborated by other independent ocular evidence. Secondly, under the scheme of the Indian Evidence Act, no particular number of witnesses is required to prove a fact. Section 134 of the Indian Evidence Act specifically provides that no particular number of witnesses shall in any case be required for proof of any fact. Thus, while appreciating evidence, what is material is the quality of the evidence and not its quantity. 16. Therefore, in the present case, the hostility shown by the independent witnesses cannot by itself discredit the testimony of PW6, who is an injured witness. I do agree that the evidence on record establishes the existence of prior disputes between the accused and PW6 in relation to a vehicle transaction. However, there is no inflexible rule that whenever prior enmity exists, the testimony of a witness must invariably be viewed with suspicion, especially when the prosecution itself alleges that the previous dispute constituted the motive for the commission of the offence. However, there is no inflexible rule that whenever prior enmity exists, the testimony of a witness must invariably be viewed with suspicion, especially when the prosecution itself alleges that the previous dispute constituted the motive for the commission of the offence. Hence, in the facts and circumstances of the present case, it would not be justifiable to discard the testimony of PW6 merely on account of prior enmity between the parties. 17. Moreover, the evidence of an injured witness occupies a special status in law. It is well settled through a catena of judicial pronouncements that the testimony of an injured witness carries an inbuilt guarantee of his presence at the scene of occurrence. Ordinarily, an injured witness would not falsely implicate an innocent person while allowing the real assailant to escape punishment. Therefore, in common human conduct, it is difficult to accept that an injured witness would deliberately shield the actual offender and falsely implicate another person. 18. Another significant circumstance in the present case is that immediately after the incident, PW6 sought medical treatment at Medicare Hospital, Kodungallur, with an alleged history of assault. The wound certificate prepared by the doctor who examined PW6 was marked as Ext.P2. The doctor who issued the wound certificate was examined as PW4. The medical evidence adduced in the case clearly establishes the presence of injuries corresponding to the overt acts attributed to the accused. Significantly, the injuries noted in the medical records are not of the nature that could be self-inflicted. 19. Coming to the contention regarding the identification of the accused by PW6, it is to be noted that both the trial court and the appellate court have concurrently found the evidence relating to identification to be convincing and trustworthy. I agree with the said finding, particularly in view of the specific testimony of PW6 regarding the source of light available at the place of occurrence. Further, it is an admitted fact that the accused were not strangers to PW6 and that he was previously acquainted with them. Therefore, the identification of the accused by PW6 before the court cannot be doubted merely because it was not preceded by a test identification parade. Identification made before the court constitutes substantive evidence and, if found reliable, need not necessarily be corroborated by an earlier test identification parade. Therefore, the identification of the accused by PW6 before the court cannot be doubted merely because it was not preceded by a test identification parade. Identification made before the court constitutes substantive evidence and, if found reliable, need not necessarily be corroborated by an earlier test identification parade. Hence, I find no merit in the contention advanced by the learned amicus curiae for the revision petitioners that the identification of the accused by PW6 is liable to be discarded. 20. In such circumstances, I am of the considered view that the testimony of PW6, which stands sufficiently corroborated by the medical evidence, is by itself sufficient to sustain the finding of guilt against the accused for the offence punishable under Section 326 of the IPC. At the same time, a careful scrutiny of the evidence reveals that there is no convincing material to establish that it was the accused who placed the telephone/electric post across the road obstructing the movement of PW6. In the absence of any specific overt act attributable to the accused constituting wrongful restraint, their conviction under Section 341 of the IPC cannot be sustained. Therefore, I am of the considered view that the essential ingredients constituting the offence punishable under Section 341 of the IPC are not made out in the present case. 21. Now, as regards the sentence, it is to be noted that the appellate court had sentenced the accused to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- each for the offence punishable under Section 326 of the IPC. Likewise, for the offence punishable under Section 324 of IPC, he was sentenced to pay a fine of Rs.1,000. However, it cannot be overlooked that no criminal antecedents have been alleged or proved against the revision petitioners. There is nothing on record to indicate that they are habitual offenders or involved in any other criminal cases. Therefore, taking into account the said mitigating circumstances and the family hardships projected by the learned amicus curiae, I am of the view that some leniency can be shown in the matter of sentence without disturbing the finding of guilt under Section 326 of the IPC. 22. In the result, the revision petition is allowed in part. The finding of guilt and conviction of the accused for the offence punishable under Section 341 of the IPC are set aside. 22. In the result, the revision petition is allowed in part. The finding of guilt and conviction of the accused for the offence punishable under Section 341 of the IPC are set aside. However, the conviction of the accused for the offences punishable under Sections 324 and 326 r/w 34 of the IPC is confirmed. The sentence imposed for the offence punishable under Section 324 of the IPC is also confirmed. But, the sentence imposed for the offence punishable under Section 326 IPC is modified as follows: 23. Both the accused shall undergo simple imprisonment for a period of eight months and shall pay a fine of Rs.5,000/- each for the offence punishable under Section 326 r/w 34 of the IPC. In default of payment of fine, they shall undergo simple imprisonment for a further period of three months. With the above affirmation and modification, the criminal revision petition stands allowed in part.