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2025 Supreme(Online)(KER) 5234
HIGH COURT OF KERALA
M.B. SNEHALATHA, J
ANIL KUMAR @ ANIYANKOCHU – Appellant
Versus
STATE OF KERALA – Respondent
Crl.Rev.Pet 549/2018
SRI.S.SHANAVAS KHAN, SMT.S.INDU, ADV.MAYA M.N-PUBLIC PROSECUTOR
The prosecution must establish all elements of the offence, including the use of a weapon, to secure a conviction under Section 324 IPC; failure to do so results in acquittal.
Headnote:(A) Indian Penal Code, 1860 - Sections 341, 323, 324 r/w Section 34 - Conviction and sentence of accused for wrongful restraint and voluntarily causing hurt - Accused acquitted of Section 324 IPC due to failure of prosecution to establish use of weapon - Delay in lodging FIR not sufficient to disbelieve prosecution case - Conviction under Sections 341 and 323 IPC confirmed. (Paras 11, 12, 13)
(B) Acquittal - The prosecution failed to establish the use of a weapon by the accused, leading to acquittal under Section 324 IPC while confirming conviction under Sections 341 and 323 IPC. (Paras 11, 12)
Facts of the case:
The accused were convicted for wrongfully restraining and assaulting the complainant due to previous enmity, with the incident occurring on 25.8.2008. The prosecution's case relied on the complainant's testimony and medical evidence. (Paras 2, 4, 10)
Findings of Court:
The court confirmed the conviction for wrongful restraint and voluntarily causing hurt but acquitted the accused of the charge of assault with a weapon due to lack of evidence. (Paras 11, 12)
Issues: The main issue was whether the conviction and sentence warranted interference by the court, particularly regarding the evidence and the delay in lodging the FIR. (Para 6)
Ratio Decidendi: The court held that the prosecution failed to prove the use of a weapon, which is essential for conviction under Section 324 IPC, while the evidence supported the charges under Sections 341 and 323 IPC. (Paras 11, 12)
Result: Revision Petition allowed in part.
ORDER
Revision petitioners are the accused in C.C.No.28/2009 on the file of the Judicial First Class Magistrate Court II, Pathanamthitta and they are the appellants in Crl.A No.27/2015 of Sessions Court, Pathanamthitta. In this revision, they assail the conviction and sentence against them for the offences punishable under Sections 341 , 323 and 324 r/w Section 34 of IPC .
2. In brief, the prosecution case is that due to the previous enmity of the accused towards PW1, on 25.8.2008 at 6 pm, A1 to A4 wrongfully restrained PW1 and voluntarily caused hurt to PW1 by attacking him with a sword stick. All the accused manhandled PW1 and voluntarily caused hurt to him. Accused thereby committed the offences punishable under Sections 341 , 323 and 324 r/w Section 34 of IPC .
3. After trial, the learned Magistrate found A1 to A4 guilty and convicted and sentenced them for the aforementioned offences. Though they preferred appeal as Crl.A No.27/2015 before the Court of Sessions, Pathanamthitta, the appeal was dismissed confirming the conviction and sentence passed by the learned Magistrate.
4. The learned counsel for the revision petitioners/accused contended that the learned Magistrate and the learned Sessions Judge have not analysed the evidence in its correct perspective; that both the courts failed to take note of the inordinate delay in laying Ext.P1 first information statement. It was further contended by the learned counsel for the accused that in Ext.P2 wound certificate, the size of the wound has not been mentioned and non-recovery of the alleged sword stick used for the commission of the offence raises serious doubt regarding the genuineness of the prosecution case. It was contended by the learned counsel for the accused that the prosecution failed to establish the case beyond any reasonable doubt and therefore the accused are entitled to get acquittal.
5. Per contra, the learned Public Prosecutor supported the findings of the trial court and contended that the conviction and sentence passed by the trial court do not warrant any interference by this Court.
6. The point for consideration in this revision petition is whether the impugned judgment of conviction and sentence needs any interference by this Court.
7. The law was set in motion by PW1. He is the defacto complainant and the injured. According to him, on 25.8.2008 at around 6 pm, in front of a shed belonging to A1 situated at Poochakkulam in Thannithode Village, A1 wrongfully restrained him and extorted him by asking whether he would inform the forest officials about the hunting of wild gaur. His further version is that A1 attacked him with a sword stick; that he sustained injury on his forehead. A2 kicked on his groin; that A3 and A4 hit him with stones. According to PW1 in the incident he sustained injury on his forehead and he had undergone treatment at General Hospital, Pathanamthitta. Ext.P1 is the first information statement given by him to the police.
8. To substantiate the prosecution case that PW1 sustained injury on 25.8.2008, prosecution would rely on the evidence of PW2 doctor, who examined PW1 at General Hospital, Pathanamthitta on 25.8.2008 and issued Ext.P2 wound certificate. In Ext.P2, the doctor has noted one lacerated injury on the middle forehead of PW1. PW6 who was the then Head Constable of Thannithode Police Station has testified that it was he who recorded Ext.P1 first information statement of PW1 on 2.9.2008 at General Hospital, Pathanamthitta. PW7 was the investigating officer, who registered Ext.P7 FIR and prepared Ext.P6 scene mahazar.
9. PW3 and PW5 who were cited as eyewitnesses to the occurrence, turned hostile to the prosecution and did not support the prosecution case.
10. The version of PW1 that on 25.8.2008 at around 6 pm. he was assaulted by the accused receive corroboration from Ext.P2 wound certificate and the testimony of PW2 doctor who examined PW1 on 25.8.2008. The learned counsel for the revision petitioners/accused contended that there is
