Point of Law : Voluntary Causing hurt and Wrongfully restrained - Conviction Set aside - When considering ingredients to find commission of offence under Section 341 of IPC, wrongful confinement as defined under Section 340 of IPC must be established – Court does not satisfy ingredients to attract commission of offences under Section 323 and 341 of IPC without reasonable doubts.

JUDGMENT :

The first accused in SC No.286/2005 on the file of the Additional Sessions Judge, Thodupuzha is the appellant herein. The State of Kerala represented by the Public Prosecutor is the sole respondent. The judgment dated 19.10.2006 in the above case is under challenge in this appeal.

2. I would like to refer the parties in this appeal as prosecution and the accused hereinafter for easy reference.

3. The brief facts of the case :

The prosecution allegation is that on 5.5.2004 at about 7.30 P.M accused Nos.1 to 3 in this case wrongfully restrained and manhandled one Peethambaran and in consequence thereof, he died at Medical College Hospital in Kottayam on 7.5.2004 at about 5.30 P.M. Nedumkandom Police registered Crime No.116/2004 and after investigation charge alleging commission of offences under Section 341, 302 r/w 34 of IPC was filed.

4. On committal of the matter, the learned Sessions Judge took cognizance for the above offences and proceeded with trial after framing charge under the above sections. During trial, PW1 to PW15 were examined, Exts.P1 to P13 and MOs1 to 5 were marked on the side of the prosecution.

5. The accused were questioned under Section 313 of the Cr.PC and provided opportunity to adduce defence evidence, after recording the incriminating circumstances. But no defence evidence adduced.

6. On appraisal of evidence, after hearing both sides, learned Additional Sessions Judge delivered judgment as follows:

Accused No.1 is found guilty of the offences under Sections 341 and 323 of the Indian Penal Code and hereby convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-for the offence under Section 323 of the Indian Penal Code to undergo simple imprisonment for one month and a fine of Rs.500/-for the offence under section 341 of the Indian Penal Code. The accused shall also undergo simple imprisonment for one month, in case of default of payment of fine, the sentence shall run concurrently. Accused No.1 and 2 are given the benefit of doubt under Section 302 r/w Section 34 of the Indian Penal Code and are acquitted. Accused No.2 is also acquitted for the offence under Section 341 of he Indian Penal Code. The charge against accused No.3 is abated since he is no more. Set off for the period of custody is also allowed.

7. Learned Counsel for the 1st accused argued that the trial court went wrong in finding commission of offences under Sections 323 and 341 of the IPC by the 1st accused relying on the evidence of hostile witnesses. He submitted further that PW1 to 4 and 11, the occurrence witnesses, turned hostile to the prosecution and the court below given emphasis to the evidence of PW1 and PW11 to find the commission of offences under Sections 323 and 341 of IPC by the 1st accused. Learned Counsel argued further that the trial court failed to appreciate the contradictions marked while examining PW1 as Exts.P1 to P3 and Exts.P15 to 18 while examining PW11 to disbelieve them. Consequently, the trial court found that PW1 and PW11 are reliable witnesses as observed in Paragraph 35 of the impugned judgment.

8. The learned Public Prosecutor supported the conviction and sentence and submitted that the evidence of PW1 and PW11 along with medical evidence and evidence given by the Investigating officers would substantiate the conviction and sentence imposed by the court below and therefore, the same is liable to be confirmed. However, the learned Public Prosecutor conceded that the sentence can be modified to fine as canvassed by the learned Counsel for the 1st accused.

9. In view of the arguments advanced as above, I have perused the evidence available. The following points raised for consideration.

1. Whether the trial court is justified in finding that the 1st accused committed offence under Sections 341 of IPC ?

2. Whether the trial court is justified in finding that the 1st accused committed offence under Sections 324 of IPC.?

3. Whether the conviction and sentence are liable