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Crl.R.P. No. 2859 of 2004

Omanakuttan v. State of Kerala

2018 SCC OnLine Ker 13620

Affirmed in Omanakuttan v. State of Kerala, (2019) 6 SCC 262

In the High Court of Kerala at Ernakulam
(BEFORE P. UBAID, J.)

Omanakuttan .…. Revision Petitioner(s)/Appellant/Accused;

v.
State of Kerala .…. Respondent(s)/Respondent/Complainant.
Crl.R.P. No. 2859 of 2004†
Decided on June 5, 2018
Advocates who appeared in this case :
By Adv. Sri. Leo George
By Public Prosecutor Sri. C.K. Prasad
The Order of the Court was delivered by
P. UBAID, J.:— The revision petitioner herein is the 1st accused in C.C No. 126/1999
of the Judicial First Class Magistrate Court, Idukki. He and his wife faced prosecution
in the court below under Section 326 I.P.C on the allegation that at about 6 p.m on
26.11.1997 on the mud road near the property of one Raju at Thopramkudy, they
poured acid on the body of the de facto complainant Sunil Kumar due to some
previous enmity, and thus inflicted severe burn injuries on his body. The Police
registered the crime on the first information statement given by the said Sunil Kumar
and after investigation, the Police submitted final report in court.
2. The two accused appeared before the learned Magistrate and pleaded not guilty
to the charge framed against them under Section 326 I.P.C read with Section 34 I.P.C.
The prosecution examined ten witnesses and proved Exts.P1 to P8 documents in the
trial court. The MO1 to MO3 material objects were also identified during trial. When
examined under Section 313 Cr.P.C, the accused denied the incriminating
circumstances and projected a defence of total denial. They examined a witness in
defence and also proved Exts.D1 to D10 contradictions in the statements of some
material witnesses.
3. On an appreciation of the evidence, the trial court found the 2nd accused not
guilty, and accordingly she was acquitted. But the 1st accused was found guilty. On
conviction under Section 326 I.P.C, he was sentenced to undergo simple imprisonment
for one year and to pay a fine of Rs. 5000/-.
4. Aggrieved by the judgment of conviction dated 4.12.2002, the accused
approached the Court of Session, Thodupuzha with Crl.A 253/2002. In appeal, the
learned Additional Sessions Judge (Special Judge for NDPS cases) Thodupuzha
confirmed the conviction and sentence and accordingly dismissed the appeal. Now the
accused is before this court in revision challenging the legality and propriety of the
conviction and sentence.
5. On hearing both sides, and on a perusal of the materials, I find no reason for
interference in the findings or the conviction made by the courts below concurrently
against the accused, on the ground of any illegality or irregularity.
6. Of the ten witnesses examined in the trial court, PW1 is the de facto complainant
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who sustained injuries in the incident, and PW2 is his mother. PW3, examined to prove
the incident, did not support the prosecution. PW4 has only hear-say information
about the incident. PW5 was examined to prove some res gestae elements regarding
the complicity of the accused. PW8 is the Doctor who examined the injured at the
hospital and issued the Ext.P5 wound certificate. The main witnesses in this case are
PW1, PW2, PW5 and PW8.
7. According to PW1, the alleged incident happened while he and his mother were
coming home through the Panchayat road near the house of Raju. The F.I Statement
will show that the mother of PW1 had also witnessed the whole incident. The evidence
given by PW1 and PW2 is definite and consistent that while they were walking through
the narrow Panchayat road, the 1st accused unexpectedly poured acid on the body of
PW1 from a bucket. PW1 sustained extensive burn injuries and without any delay, he
was taken to the hospital. When he cried aloud, people came there, and on seeing
them, the accused ran off and escaped. The evidence of PW5 is that while he was
sitting at the tea-shop of Lissiamma, PW1 rushed to the shop crying aloud and with
extensive burn injuries on his body. When asked about it, he stated that the 1st
accused had poured acid on his body. This is the statement given by PW1 to PW5,
immediately after the incident and this statement implicates the 1st accused. This
statement retold by PW1 can be accepted as res gestae evidence, and that is
admissible in evidence. I find no reason to reject the evidence of PW5 or to disbelieve
him.
8. PW8 has given evidence regarding the extensive burn injuries found on the body
of PW1. He had acid burns “over the left side of the body involving forehead, scalp and
neck, over the back of chest, over the outer aspect of left upper arm, left side of chest,
left buttocks and front of left side”. PW1 was admitted as inpatient at the hospital on
26.11.1997 and was discharged on 18.1.1998. Thus, he had to continue at the
hospital for 53 days. The defence has no explanation how PW1 sustained such
extensive burn injuries on his body. The medical evidence given by PW8 will prove the
extensive burn injuries found on the body of PW1. Just because PW1 had not
mentioned the name of the accused to the Doctor, the accused cannot claim acquittal.
On the next day itself, F.I statement was given by PW1 and in the said statement, he
has narrated the entire incident.
9. When examined-in-chief regarding the consequence of the injuries, PW1 stated
that he was not in a position to follow his ordinary pursuits for three months. It is
pertinent to note that the defence did not ask any question to PW1 on this very
important aspect. Of course, the injury is not by nature grievous. It comes under the
last clause of Section 320 I.P.C, as an injury preventing the victim from following his
ordinary pursuits for more than 20 days. PW1 had to continue at the hospital as in-
patient for 53 days and his clear evidence that he was not in a position to follow his
ordinary pursuits for three months stands unchallenged. Of course, it is true that the
doctor has opined otherwise. It is only an opinion. It is for the injured to say what
difficulties he had, and it is for him to explain the consequence of the injuries. PW1
asserted that he had difficulties in following his ordinary pursuits for three months,
and the defence left this important aspect untouched in cross-examination. I am
inclined to accept the evidence of PW1 on this material aspect in preference to the
opinion stated otherwise by the Doctor.
10. The defence made some submissions regarding some inconsistencies as regards
the place of incident. It is pertinent to note that nothing on this aspect was asked to
PW1 in cross-examination. I do not find any material consistency on this aspect. The
defence had marked so many contradictions in the statements of the material
witnesses. These are not very material contradictions. On factual aspects, the evidence
given by PW1 and PW2 is quite clear, convincing and definite and they are consistent
too regarding the essential particulars. They are well supported by the res gestae
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evidence given by PW5. I find no reason to disbelieve PW1 and PW2 or to reject their
evidence. I find that the prosecution has well proved the offence punishable under
Section 326 I.P.C.
11. The sentence imposed by the court below is simple imprisonment for one year
and a fine of Rs. 5000/-. Fortunately for the accused, the trial court has imposed only
simple imprisonment. PW1 had sustained severe burn injuries on his body due to the
acid attack made by the accused, and it is quite definite that PW1 had difficulties for
some time in following his ordinary pursuits. When these things are considered, it is
quite definite that the sentence imposed by the trial court is quite reasonable and it
does not require any interference in revision.
12. In the result, this appeal is dismissed, confirming the conviction and sentence
against the revision petitioner under Section 326 I.P.C in C.C 126/1999 of the Judicial
First Class Magistrate Court, Idukki and confirmed in appeal by the court below. The
revision petitioner will surrender before trial court within three weeks from this date to
serve out the sentence voluntarily, on failure of which, steps shall be taken by the trial
court to enforce the sentence and realise the amount of fine, or enforce the default
sentence.
———
† Against the Judgment in CRA 253/2002 of Addl. Sessions Court, Thodupuzha Against the Judgment in Cc
126/1999 of J.M.F.C., Idukki
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