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2026 DAILYLAW 596 (KER)

Varghese v. State

2026-06-02

Jobin Sebastian

body2026
ORDER : 1. This criminal revision petition has been filed under Section 397 and 401 of the Code of Criminal Procedure , challenging the judgment dated 29.08.2005 in Criminal Appeal No.310/1997 on the file of the Additional Sessions Court-II, Thiruvananthapuram, which arose out of C.C. No.381/1995 on the file of the Judicial First Class Magistrate Court-III, Neyyattinkara. The revision petitioners herein are the first and second accused in the above case. 2. The prosecution case is that on 30.03.1995, at about 6:45 p.m., in front of the shop of one Kuttan at Kanjiramkulam Junction, the accused, in furtherance of their common intention, attacked CW1 (PW1). It is alleged that the first accused stabbed CW1 on the head with a knife, while the second accused struck CW1 on the right leg with a cycle chain, causing injuries. When CW2 (PW2) intervened, the third accused stabbed CW2 on the head with a knife, and the second accused hit CW1 on the backside with an idikatta, thereby causing injuries. The third accused also destroyed the front glass of the autorickshaw of CW1 and caused damage of Rs.10,000/-. Thus, the accused are alleged to have committed offences punishable under Sections 324 and 427 r/w 34 of the Indian Penal Code . 3. During the trial, from the side of the prosecution, eight witnesses were examined as PW1 to PW8 and marked Exts.P1 to P5. Finally, the learned Magistrate found all the accused guilty of the offences punishable under Sections 324 , 427 r/w 34 of the IPC and were convicted. The accused were sentenced to undergo simple imprisonment for a period of one year for the offence under Section 324 and to pay a fine of Rs.1,000/- each for the offence punishable under Section 427 of the IPC. In default of payment of fine, the accused were ordered to undergo simple imprisonment for a further period of three months. The fine amount, if realised, half of the same was ordered to be given PW1 and PW2 as compensation under Section 357(1)(b) of Cr.P.C. 4. Aggrieved by the said judgment, the accused preferred Criminal Appeal No. 310/1997 before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, who heard the appeal, allowed the same in part and modified the sentence imposed on the accused. The sentence imposed for the offence punishable under Section 324 IPC was reduced to simple imprisonment for three months. Aggrieved by the said judgment, the accused preferred Criminal Appeal No. 310/1997 before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, who heard the appeal, allowed the same in part and modified the sentence imposed on the accused. The sentence imposed for the offence punishable under Section 324 IPC was reduced to simple imprisonment for three months. The fine amount awarded under Section 427 IPC was not interfered. Aggrieved thereby, the accused have preferred the present revision petition. 5. Heard Sri.R. Bindhu Sasthamangalam, learned counsel for the petitioner, and Sri. G. Sudheer, learned Public Prosecutor. The records were also perused. 6. The learned counsel for the revision petitioners submitted that the trial court as well as the appellate court erred in appreciating the evidence in proper perspective and recorded a conviction without properly appreciating the facts and evidence brought out in this case. According to the learned counsel, there was no proper identification of the accused by PW1 and PW2, the injured witness, and therefore the conviction is liable to be set aside on that ground alone. It was further submitted that the trial court erred in convicting the accused under Section 324 of the IPC , overlooking the fact that the alleged weapon of offence was neither recovered during the investigation nor produced before the court. According to the learned counsel, in the absence of convincing evidence establishing the use of a dangerous weapon or means for causing the injuries, the conviction under cannot be sustained. 7. In reply, the learned Public Prosecutor submitted that the evidence on record clearly establishes that all the assailants were previously known to the injured witness and, therefore, there is no merit in the challenge regarding the identification of the accused. It was further contended that the testimony of PW1 and PW2, the injured witnesses, is duly corroborated by the medical evidence adduced by the prosecution, and hence the impugned judgment warrants no interference. The learned Public Prosecutor also pointed out that the non-recovery of the weapon of offence is not fatal to the prosecution case, particularly when the injuries corresponding to the overt acts attributed to the accused were recorded in the medical examination conducted immediately after the incident. 8. Before examining whether any interference with the impugned judgment is warranted, it must be borne in mind that the scope of revisional jurisdiction is limited. 8. Before examining whether any interference with the impugned judgment is warranted, it must be borne in mind that the scope of revisional jurisdiction is limited. It is well settled that a revisional court may interfere with the judgments or orders of the trial court and the appellate court only when they suffer from illegality, impropriety, or material irregularity. Unless the findings recorded by the courts below are perverse, wholly unreasonable, based on a misreading of the evidence, or rendered without consideration of relevant material, interference in revision is unwarranted. A revisional court cannot assume the role of an appellate court and reappreciate the evidence merely because another view of the evidence is possible. 9. 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.” 10. Keeping in mind the above principles and reverting to the facts of the present case, it is evident that both the trial court and the appellate court recorded a finding of guilt against the accused primarily on the basis of the cogent and unimpeachable testimony of PW1 and PW2, the injured witnesses. From the impugned judgments, it is discernible that the evidence of PW1 and PW2 remained unshaken despite extensive cross- examination, and that his testimony is free from material contradictions, omissions of even a minor nature. Moreover, the testimony of PW1 and PW2 stands corroborated by the evidence of PW3, an independent occurrence witness. From the impugned judgments, it is discernible that the evidence of PW1 and PW2 remained unshaken despite extensive cross- examination, and that his testimony is free from material contradictions, omissions of even a minor nature. Moreover, the testimony of PW1 and PW2 stands corroborated by the evidence of PW3, an independent occurrence witness. While examining whether the courts below committed any serious error, illegality, or perversity in appreciating the evidence, it is pertinent to note that both courts placed considerable reliance on the testimony of PW1 and PW2, principally on the ground that he is an injured witness. 11. Undisputedly, the evidence of an injured witness is accorded a special status in law. Now, by a series of judicial pronouncements, it is well settled that the evidence of an injured witness alone can form the basis of a conviction in a criminal case, if the same is convincing and reliable to inspire the confidence of the court. Likewise, it is well settled that an injured witness comes with a built-in guarantee of his presence at the crime scene, and normally, he will not falsely implicate an innocent person so as to afford an opportunity to the actual assailant to escape from punishment. Therefore, I find no reason to disagree with the concurrent finding that the evidence of PW1 and PW2 regarding the occurrence is convincing and reliable. 12. Moreover, as already stated, his evidence finds sufficient corroboration with the testimony of PW3, who is an independent witness. Apparently, there is nothing on record to suggest that either PW1, PW2, or PW3 had any animosity or grudge against the accused that would have motivated them to falsely implicate him in a case of this nature. Therefore, I find no reason to disagree with the finding of the trial court that the evidence of injured witnesses and PW3 is of unimpeachable quality and wholly reliable. 13. Now, coming to the contention regarding the non-recovery of the weapon, it is to be noted that, in order to attract an offence under Section 324 IPC , there must be sufficient evidence to establish that the hurt was inflicted by using a dangerous weapon or by any similar means. In the case at hand, the evidence of PW1, PW2 and PW3 shows that the hurt was inflicted using an Idikatta as well as by a knife. In the case at hand, the evidence of PW1, PW2 and PW3 shows that the hurt was inflicted using an Idikatta as well as by a knife. However, the said weapons were neither recovered nor produced in evidence before the trial court. Nevertheless, it cannot be ignored that there is no inflexible rule that, in order to convict an accused for an offence under or Section 326 IPC, the weapon allegedly used must invariably be produced before the court. Moreover, it is common knowledge that, after the commission of the offence, the disposal of the weapon is a matter within the special knowledge of the accused. Therefore, if the accused has shown reluctance to disclose the whereabouts of the weapon after the commission of the offence, the prosecution cannot be faulted on that ground alone. However, the prosecution has a duty to explain why the weapon was not recovered. The same has not been done in the present case. Even so, lapses on the part of the prosecution or defects in the investigation cannot, by themselves, be a reason to acquit the accused when there is other convincing evidence to prove the charge levelled against him. 14. In the case at hand, apart from the evidence of PW1 and PW2, there is ample medical evidence to show that they had sustained injuries in the incident. From the medical evidence, it is established that immediately after the incident, injured sought medical aid from the Taluk Hospital, Neyyattinkara. 15. The doctor who clinically examined PW1 and PW2 and issued Ext.P4 and Ext.P3 wound certificates respectively was examined as PW4. During his examination before the court, he categorically deposed that, on the date of the incident, PW1 had approached the hospital with a history of assault using a weapon. Moreover, he stated that the injuries noted during the medical examination could have been inflicted by a weapon of the nature described by PW1. Therefore, I am of the view that the non-recovery of the weapon in this case is immaterial, particularly since the injuries corresponding to the overt act attributed to the accused are duly reflected in the medical records relating to PW1 and PW2. The nature of the injuries and the part of the body on which they were inflicted clearly suggest that the injuries were not self-inflicted. 16. The nature of the injuries and the part of the body on which they were inflicted clearly suggest that the injuries were not self-inflicted. 16. The recovery of the weapon of offence is not a sine qua non for sustaining a conviction under Section 326 of the IPC . Non-recovery of the weapon used in the crime is not necessarily fatal to the prosecution's case, especially when there exists strong and reliable eyewitness testimony. When the ocular evidence is duly corroborated by medical evidence, the non-recovery of the weapon becomes inconsequential. In Lakhan Sao v. State of Bihar, 2000 (9) SCC 82 , the Hon’ble Supreme Court held that mere non-recovery of the weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. A similar view has been taken by the Hon’ble Supreme Court in a series of cases. [ See Mritunjoy Biswas v. Pranab alias Kuti Biswas,  (2013) 12 SC 796; Sanjeev Kumar Gupta v. State of U.P. (2015) 11 SCC 69 ; Rakesh and another v. State of U.P. (2021) 7 SCC 188 ; State through the Inspector of Police v. Laly alias Manikandan,  2022 SCC Online SC 1424] 17. In short, I find no reason to interfere with the well-considered judgment passed by the trial court, which was confirmed in appeal by the learned Sessions Judge. However, having regard to the family and financial constraints of the accused, as projected by the learned counsel for the revision petitioners, the year in which the incident occurred, and the other attending circumstances, I am of the view that some leniency has to be shown in the matter of sentence. 18. In the result, the revision petition is allowed in part. Without altering the finding of guilt, the sentence imposed on the accused for the offence punishable under Section 324 IPC is modified, and revision petitioners/accused Nos. 1 and 2 are sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs.5,000/- each to PW1 and PW2 under Section 357(3) of the Code of Criminal Procedure . In default, the accused shall undergo simple imprisonment for a period of one month each. Needless to say, no interference is called for with respect to the sentence imposed for the offence punishable under Section 427 IPC. In default, the accused shall undergo simple imprisonment for a period of one month each. Needless to say, no interference is called for with respect to the sentence imposed for the offence punishable under Section 427 IPC. The accused shall appear before the trial court on 06.07.2026 to undergo the sentence and to pay/deposit the compensation amount. With the above affirmation and modification, the criminal revision petition stands allowed in part.