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IN THE COURT OF THE JUDGE
SPECIAL COURT FOR SC/ST (POA) ACT/
ADDITIONAL SESSIONS COURT MANNARKKAD.
Present : Sri. K.M. Retheesh Kumar, Judge.
th
Thursday the 18
day of May, 2023.
28th day of Vaisakha, 1945 S.E
Sessions Case No. 403/2018
Complainant : State of Kerala represented by Deputy
Superintendent of Police, Alathur,
Palakkad.
(Rep.by. P. Jayan, Special Public
Prosecutor, Mannarkkad).
Name of Accused : 1. V.E. Hakkim @ Anwar S/o Ibrahim,
aged 34/18, Parakkundu (H),
Karayankad, Vadakkancherry,
Palakkad (Dist).
2. Jafar.V.E S/o Ibrahim, aged 35/18,
Rabiya Mansil, Parakkundu, Karayankad,
Vadakkancherry, Palakkad (Dist).
Charge : Offence Punishable under section 324 and
326 r/w 34 IPC and section 3(1) (r), 3(2)
(v) of SC/ST (POA) Act.
Plea of the accused : Not guilty
Finding of the judge : Accused are found guilty of offences
punishable under Sections 324 and 326 r/w
34 IPC and accused are found not guilty for
offences punishable under section 3(1) (r),
3(2) (va) of SC/ST (POA) Act.
Sentence or order : 1). Accused are sentenced to undergo
rigorous imprisonment for one year each
and to pay fine of Rs.10,000/ each for the
offence punishable under section 324 r/w 34
I.P.C.
3). If the fine amount is realized, a sum of
Rs.5 lakhs shall be disbursed to PW1 as
compensation as provided under section 357
(1) (b) Cr.P.C.
4). In default of the payment of fine amount,
the accused shall undergo simple
imprisonment for a further period of 12
months each.
6). The accused are entitled to get set off for
the pretrial undergone by them as provided
u/s. 428 Cr.P.C. (A110 days, A28 days).
Name of Police Station and : Vadakkancherry Police Station.
Crime No. of the offences Cr.No. 659/2018.
Prosecution conducted by : Sri. P.Jayan Public Prosecutor, Mannarkkad
Accused defended by : Adv. Sri. M.N. Sakkeer Hussain
J U D G M E N T
This is a case charge sheeted by Deputy Superintendent of Police,
Alathur alleging commission of offences punishable u/s.324 and 326 r/w 34
IPC and sections 3(1)(r) and 3(2)(v) of SC/ST (POA) Act.
2. Prosecution case in brief is as follows: The defacto complainant
is the mother of CW2 and CW3. They belong to HinduCheruma community,
members of SC/ST community. Accused who are siblings, belong to Muslim
3
community. On the date of occurrence there was some altercation between
the sister of the accused persons and CW2. Due to that animosity on 120518
Parakundu road junction, Karayankadu, Kannambra II Village, Alathur Taluk
in his car bearing No.KL49G2051. He came out of that car carrying an iron
pipe. A2 reached that place by carrying a stick. Both of them attacked CW2
and CW3 who were waiting at that place knowing that CW1 to CW3 belong
to SC/ST community. The accused have questioned CW1 and CW2 for
abusing the the sister of the accused by CW2. They further attacked CW2 and
CW3 with intent to cause grievous hurt. A1 has beat on the head, forehead
and eye brow of CW2 by using an iron pipe. As a result CW2 sustained grave
injuries. A2 has beat CW3 by using a stick on the forehead and body of CW3
thereby caused hurt. When CW1 intervened, A1 beat CW1 on her right thigh
by using the very same iron pipe. As a result fracture occurred at the right
thigh of CW1. Thus the prosecution alleges that the accused have committed
offences punishable u/s.324 and 326 r/w 34 IPC and Section3(1) (r), 3(2)(v)
of SC/ST (POA) Act.
3. Upon filing charge sheet this court took cognizance for the above
said offence and issued process against the accused. Accused appeared before
the court upon process. After hearing the prosecution and the accused charge
for the above said offences was framed and read over and explained to the
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accused by my learned predecessor, to which they pleaded not guilty.
4. Based on the prosecution records, after hearing the prosecution and
the accused my learned predecessor has framed the following charge:
Parakundu road junction, infurtherance of your common intention, you belong
to Muslim, a higher caste, insulted and humiliated CW2, Renjith and CW3,
Sanjay, scheduled caste and thereby you have committed offence punishable
u/s. 3(1) (r) of SC/ST (POA) Act and within the cognizance of this court.
Secondly: That on the same date, time and place, in furtherance of
your common intention, A1 among you, belongs to Muslim, a higher caste,
beat CW2, Renjith, a scheduled caste with an iron pipe causing hurt and
3(2) (va) of SC/ST (POA) Act and within the cognizance of this court.
Thirdly: That on the same date, time and place, in furtherance of
your common intention, A2 among you, belongs to Muslim, a higher caste,
beat CW3, Sanjay, a scheduled caste with a stick causing hurt and thereby
you have committed offence punishable u/s. 324 IPC and section 3(2) (va) of
SC/ST (POA) Act and within the cognizance of this court.
Fourthly: That on the same date, time and place, in furtherance of
your common intention, A1 among you, belongs to Muslim, a higher caste,
beat CW1, Parvathy, a scheduled caste with an iron pipe causing fracture of
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IPC and section 3(2) (v) of SC/ST (POA) Act and within the cognizance of this
court.
furtherance of your common intention, both of you are liable for the acts of
the others and accordingly both of you have committed offences u/s. 324, 326
r/w 34 IPC and under section 3(1) (r), 3(2) (v) and 3(2) (va) SC/ST (POA)
Act and within the cognizance of this court.
5. To prove the case, prosecution has examined PW1 to PW13 and
marked Exts.P1 to P26 documents. MO1 and MO2 series were also marked.
u/s. 313 Cr.P.C. They denied all the incriminating circumstances brought
against them. Thereafter the matter was heard u/s. 232 Cr.P.C. As it was
found to be not a fit case to pass an order of acquittal u/s. 232 Cr.P.C, the
accused were called upon to adduce defence evidence if any. Exts.D1 to D3
were marked on the side of defence.
No.661/18 was registered in the very same Vadakkancherry Police Station. It
is submitted by the accused that crime No. 661/18 is the counter case of this
case. Accordingly the case pending before the JFCM, Alathur was made over
to this court for trying along with this case. That case was numbered as
6
Accordingly the matter is heard u/s. 235 Cr.P.C. and hence the following
Judgment.
7. The points that arise for consideration are:
1. Did the accused not being a member of SC/ST community,
on 120518 at about 5.15 pm, in furtherance of their
common intention, intentionally insulted CW1 to CW3
belong to SC/ST community with intent to humiliate them
and thereby committed offence punishable u/s. 3(1) (r) of
SC/ST (POA) Act?
2. Did the accused on the same date, time and place, in
furtherance of their common intention, caused hurt to CW2
and CW3 by using dangerous weapons such as iron pipe and
stick etc and thereby committed offence punishable u/s. 324
r/w 34 IPC?.
3. Did the accused on the same date, time and place, in
furtherance of their common intention, caused grievous hurt
to CW1 and thereby committed offence punishable u/s. 326
r/w 34 IPC?
4. Did the accused not being a member of SC/ST community,
committed the aforesaid offences knowing that CW1 to CW3
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belongs to SC/ST community and thereby liable to get the
enhanced punishment as provided u/s. 3(2) (v) of SC/ST
(POA) Act?
5. Who is the aggressor of the occurrence?
6. Whether the accused have committed the offence in
furtherance of their common intention?.
7. Whether the prosecution succeeded in establishing the
guilt of the accused beyond the shadow of any reasonable
doubt, if so what should be the sentence or order?
Prosecution Evidence:
To prove the case, prosecution has examined PW1 to PW13 and
marked Exts.P1 to P26 documents. MO1 and MO2 were also marked.
8. PW1 is the the defacto complainant and injured in this case,
who has given Ext.P1 FIS to Police. PW1 identified both accused in the dock
during examination. She has also identified MO1, iron pipe. PW1
categorically narrated the entire incident.
9. PW2 is yet another injured in this case. He is the younger son
of PW1. He has also supported the prosecution case. PW2 has also identified
both accused in the dock during examination and identified MO1, iron pipe
and MO2, stick.
10. PW3 is the doctor who treated CW1 to CW3 at Taluk Head
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Quarters Hospital, Alathur on the relevant date and issued Exts.P2, P3 and P4
wound certificates.
both accused in the dock and identified MO1, iron pipe and MO2, stick.
12. PW5 is an occurrence witness. She supported the prosecution
case. She has also identified both accused in the dock. It is PW5 who has
hospitalised PW1. PW6 is an attester to Ext.P5 scene mahazar.
13. PW7 is the then Village Officer, Kannambra II Village who has
issued Ext.P6 caste certificate of accused and prepared Ext.P7 scene plan.
14. PW8 is the then Tahsildar of Alathur, who has issued Ext.P8
series caste certificates of CW1 to CW3. As per the evidence of PW8, CW1 to
CW3 belong to Hindu Cheruma community, a member of SC/ST community.
15. PW9 is the SCPO of Vadakkancherry Police Station, who has
recorded Ext.P1 FIS of PW1. PW10 is the then Sub Inspector of Police,
Vadakkancherry Police Station, who was registered Ext.P9 FIR on the basis of
Ext.P1 FIS.
16. PW11 is the Addl. Professor (Orthopedic) in Govt. Medical
College, Hospital, Thrissur, who has treated PW1 and issued Ext.X1 case sheet
and he has formally proved Ext.P10 discharge certificate of PW1.
Hospital, Thrissur, who has treated PW2 and he formally proved Ext.X2 case
sheet and Ext.P11 discharge card.
18. PW13 is the then Dy.SP, Alathur, who conducted investigation
in this case. He has prepared Ext.P5 scene mahazar, recovered MO1 and MO2
from the place of occurrence by narrating it in Ext.P5 scene mahazar, arrested
the accused persons as per Ext.P12, P13, P14, P16, P17 and P18 arrest
records, produced the accused persons before court as per Ext.P15 remand
Ext.P19 address report of the accused, produced the discharge card of the
injured, seized car bearing No. KL49G2051 as per Ext.P20 seizure mahazar,
produced caste certificates, scene plan etc before court, filed Ext.P21 report
altering section and Ext.P22 report incorporating offence punishable under the
provisions of SC/ST (POA) Act, filed Ext.P23 report deleting some of the
Ext.P25 and P26 remand report etc, completed the investigation and laid final
report before court.
Appreciation of Evidence
Nos.2, 3 and 6 can be considered together. PW1 is the defacto complainant
and the main injured in this case. She has given evidence before court
narrating the entire incident. It is deposed by PW1 that on 120518 at about
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4.30 pm, the motor cycle driven by PW2 hit one Omana while Omana and
Rajeena, (the sister of accused persons) were passing through Pandikulangara.
Accordingly some altercation occurred. After that incident PW2 came to the
some hue and cry on the road side. Accordingly she rushed to that place. By
that time it is seen that accused persons were manhandling her children. It is
specifically deposed by PW1 that Anwar, A1 beat PW2 by using an iron pipe,
Jafar, A2 has beat PW4 by using a stick. When she intervened and requested
the accused persons not to beat her children, A1 uttered to stay away from
there and beat her on her right thigh. Due to the impact of the attack she fell
down. By that time, people gathered there and accused persons left that
place. Thereafter his elder son and one Ward Member namely Shakeela
(PW5) have hospitalised PW1 at Govt. hospital, Alathur. Later she was
hospitalised in Medical College Hospital, Thrissur. PW1 has given Ext.P1 FIS
to Police, while she was in the Alathur hospital. PW1 clearly identified both
accused in the dock. According to PW1, the accused persons were residing at
that place in the past and now a days they are not residing in that place. PW1
further identified MO1 iron pipe used by A1 for attacking her. During
examination PW1 further deposed that even though in the FIS she has stated
about the involvement of 7 persons that was not correct. She has given a
plausible explanation that those persons were there at the place of occurrence
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but they have not attacked her and her children. Even though PW1 was
subjected to piercing cross examination nothing was brought out to disbelieve
her testimony. The evidence given by PW1 during cross examination reveal
that she has given the true facts before court. According to her, she is not
denying that her children have not defended the accused persons when they
attacked her children. During cross examination also PW1 stickon to her
version that it is A1 who has attacked PW1 by using MO1, iron pipe.
20. During the course of examination the counsel for the accused
has made several attempt to create an impression that PW1 sustained injury
due to the attack made by PW2 in the scuffle, when she intervened in that
scuffle. But PW1 has categorically denied all those suggestions and stickon to
her version that it is Anwar, A1 who had attacked her by using MO1, iron
pipe. It is to be noted that PW1 is not denying the political relationship of her
children and the accused. The answers given by PW1 reveal that she has not
given any exaggeration to her testimony. PW1 further admitted the cases
pending in between her children and accused persons. All these testimony
given by PW1 reveal that she is a trustworthy witness and she has revealed
only the true facts before the court. She has not concealed anything so as to
incriminate accused or to save her children (PW2 and PW4).
21. It is to be noted that at the time of examination PW1 reached
the place with the help of walker and she find it difficult to mount the witness
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box. According to her, she has undergone bed rest for about 3 years. She
expressed her grievance that after the incident she was unable to walk. In the
incident fracture occurred on her right thigh. Due to the fracture bone came
out of that flesh and later it was surgically reinstated. Even though several
attempt was made by the counsel for the accused to create an impression that
PW1 sustained injury accidentally when she intervened in the scuffle, she
denied all those suggestions and emphatically deposed that the first accused
has attacked her by using iron pipe. According to her, she is not suffering
from any memory loss or vision impairment at the time of occurrence and
even now. According to PW1, due to the injury sustained in the occurrence
and she was unable to move out of her house and constrained to undergo bed
rest for several years. According to her, she suffered a lot due to the injury
sustained in the occurrence. On evaluation of the oral evidence of PW1, I find
that PW1 is a reliable and trustworthy witness and her testimony is not
suffering from any sought of embellishment or exaggeration. Therefore, I am
constrained to accept the testimony of PW1.
22. PW2 is the younger son of PW1 who had also sustained injury
in the incident. PW2 deposed that on that day at about 4.30 pm, while he was
proceeding to his house in his motor cycle, it hit one Omana, while Omana
and Rajeena, (sister of the accused persons) were passing through that place.
He stopped his motor cycle and enquired the matter and ascertained that
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there is no injuries to Omana. By that time, Rajeena abused him. Thereafter
he reached his house and then came to the street and was discussing this issue
with his elder brother Sanjay. By that time, A1, Anwar came to that place in
his Maruthi shift car bearing No.KL49G2051 and came out of that car by
PW2, Anwar (A1) has beat him over his head and body by an iron pipe. A2
has also beat him by stick. PW2 has identified MO1 and MO2 weapons. It is
further deposed by PW2 that when his mother intervened by requesting to
stop beating her children, Anwar (A1) has beat his mother by using an iron
pipe on her right thigh. Accordingly his mother fell down. Later his mother
accused persons have escaped from that place. According to PW2, persons
such as Haridas, Salim, Shakkeela, Indhu, Anjali etc were there at the place of
Alathur Govt. Hospital and then to Medical College Hospital, Thrissur. PW2
has identified both accused persons in the dock, MO1 and MO2 weapons etc.
23. Though PW2 was subjected to lengthy and piercing cross
examination, nothing was brought out to disbelieve his version. The answers
given by PW2 reveal that he have given the real facts before court. He has
admitted the case that is pending between the accused and himself, the
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political parties of both parties etc. He has also admitted the pendency of a
counter case against him. During examination PW2 deposed that only these
accused persons have attacked him, his mother and brother. It is further
deposed by PW2 that even though he attempted to defend the attack made by
the accused persons he could not defeat the accused persons and accordingly
he sustained severe head injury. The answers given by PW2 also reveals that
he is not giving any exaggeration and he was revealing in the truth before
court. I find that the evidence of PW2 can also be accepted as trustworthy.
24. PW3 is the doctor of Taluk Head Quarters Hospital, Alathur,
who had examined PW1, PW2 and PW4 and issued Exts.P2, P3 and P4 wound
certificates. The injury sustained by these PW1, PW2 and PW4 are stated in
certificates it is stated that the alleged cause of injury is assault at Parakundu
road, Vadakancherry, Karankodu at about 5.30 pm on 120518. The injury
sustained by PW1 as per Ext.P2 wound certificate is as under:
Swelling over ® knee.
The injury sustained by PW2 as per Ext.P3 wound certificate are as under:
(1). Lacerated wound scalp 2x1 cm. 3 sticks
(2). Lacerated wound on ® temple .5x.5 cm.
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(3). Contusion injury ® shoulder back side
(4). Contusion injury ear back near scapula 5x4 cm.
(5). .5x1 cm injury lacerated wound.
(6). Incised 1x.5 cm wound below (L) eyebrow.
under:
(1). Lacerated wound ® foot bigtoe .5x.5 cm.
(2). Incised wound .5x1 cm over ® eyebrow forehead.
(3). Pain & tenderness over neck.
During examination MO1 and MO2 weapons were shown to the doctor and he
deposed that by making use of these weapon the injury noted in the wound
certificates could be caused. Though the doctor was also vehemently cross
examined by the counsel for the accused nothing was brought out to
disbelieve his version.
caused on the right thigh of PW1 is not stated. Infact the answers given by
PW3 during cross examination gives explanation for this. It is deposed by
PW3 that he has not taken Xray, as Xray facility was not available in the
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hospital at the relevant time. According to doctor, Xray facility was available
examination, Ortho doctor was also not there at the relevant time of
examination of the victims. It is further deposed by PW3 during examination
that as Xray facility and Orthopedic specialist doctor was not available in the
hospital at the relevant time in the Taluk Head Quarters Hospital, Alathur,
the patient was referred to Medical College Hospital, Thrissur. Thus the
answers given by PW3 gives explanation to the nonmentioning of fracture on
the right thigh of PW1 in Ext.P2 wound certificate.
26. PW4 is the elder son of PW1. He has also sustained injuries in
him, while he was standing at Parakundu along with his younger brother, the
accused persons reached that place and attacked him and his younger brother.
It is deposed by PW4 that Anwar (A1) has beat PW2 on his head by using an
iron pipe and stick. According to him, A2 has beat him on his forehead and
caught hold of him. When his parents came to that place and requested the
accused persons not to beat the children, Anwar (A1) has beat his mother by
using MO1, iron pipe on her right leg, accordingly fracture occurred. PW4 has
also identified the accused persons in the dock and MO1 and MO2 weapons.
Though this witness was also vehemently cross examined by the counsel for
the accused nothing was brought to disbelieve his testimony. The answers
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given by PW4 also appears to be trustworthy and convincing and inscribes
confidence of court. Even according to PW4 some other persons were also
there at the place of occurrence. However only these accused persons have
attacked PW1, PW2 and PW4. PW4 has also admitted the pendency of other
cases between the parties.
27. A meticulous examination of the oral evidence of PW1, PW2
and PW4 reveals that their testimony corroborate each other in material
particulars. Even though in Ext.P1 FIS it is stated by PW1 that Anwar, Jafar,
Mujeeb, Vinu, Sudheesh, Sujindran and Vishu have attacked her children, the
answers given by PW1, PW2 and PW4 during examination before court reveal
that only Anwar and Jafar had attacked PW1, PW2 and PW4, though the
remaining persons who are named in FIS were there at the place of
occurrence. It is to be noted that Ext.P1 FIS was given by PW1 while she was
undergoing treatment at Taluk Head Quarters Hospital, Alathur. This was just
after the incident. It is further to be noted that on hearing the hue and cry
PW1 rushed to that spot which is very near to their house. When she rushed
to the spot the other person named in the FIS were also there at the spot.
Under the impression that these persons have also involved in the occurrence,
PW1 has given the name of all these persons in the FIS. But later she
realised from PW2 and PW4 that apart from these accused no other persons
have attacked her children. PW2 and PW4 have also given identical version
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names of some other persons in addition to the name of the accused persons,
it is not a ground to disbelieve the whole prosecution case.
28. PW5 is an eye witness. She also deposed that she has
witnessed the incident and she was there at the place of occurrence. PW5 has
also identified the accused persons in the dock. It is deposed by PW5 that
Anwar and Jafar have attacked Ranjith and Sanjay. It is further deposed by
PW5 that Anwar has beat PW1 on her right thigh and soon after the attack
PW1 fell down. Later the other persons who gathered there have pacified the
issue. The accused persons have left that place leaving the weapons at the
place of occurrence. It is further deposed by PW5 that Sanjay sustained head
injury in the incident. According to PW5, it is she who along with Sanjay
(PW4) has hospitalised Parvathy (PW1). Thus PW5 supported the prosecution
though this witness was vehemently cross examined by the counsel for the
examination PW5 admitted her political party, the political relationship of the
accused persons etc. The answers given by PW5 reveal that she has deposed
only the real facts before court. It is further evident form the answers given
by PW5 during cross examination that her house is situated near to the place
of occurrence, ie. just 3 houses away from that place of occurrence. Thus the
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presence of PW5 at the place of occurrence cannot be doubted. During cross
examination a suggestive question was put to this witness suggesting that PW1
sustained injury due to an accidental attack made by PW2, but PW5 has
emphatically denied it and deposed that she has witnessed the attacking of
PW1 by A1.
given by PW6 further reveal that the weapons were also seized from the place
of occurrence by incorporating it in Ext.P5.
30. PW7 is the then Village Officer of Kannambra II Village, who
has issued Ext.P6 caste certificate. It reveals that the accused persons belongs
to Muslim community. PW7 further prepared Ext.P7 scene plan, wherein the
place of occurrence is clearly demarcated.
caste certificates of PW1, PW2 and PW4. The evidence of PW8 and Ext.P8
series caste certificates reveal that PW1, PW2 and PW4 belongs to Hindu
belongs to SC/ST community. Though PW8 was vehemently cross examined
by the counsel for the accused nothing was brought out to disbelieve the
evidence available before court to disbelieve the evidence of PW8 and Ext.P8
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caste certificate.
32. PW9 is the then SCPO of Vadakkancherry Police Station who
has recorded Ext.P1 FIS.
33. PW10 is the Sub Inspector of Police Vadakkancherry Police
Station, who has registered Ext.P9 FIR as per Ext.P1 FIS.
34. Thus the answers given by PW1, PW2 and PW4 along with
oral evidence of PW5, the eye witness reveal that it is these accused persons
who have attacked PW1, PW2 and PW4 and accordingly PW1 sustained
fracture on her right thigh and PW2 and PW4 sustained severe head injuries
and other injuries as stated in Exts.P2, P3 and P4 wound certificates. The
evidence of PW1, PW2 and PW4 corroborates each other. The oral evidence
of independent eye witness, PW5 also corroborates with the testimony of PW1,
PW2 and PW4. Though these witnesses were vehemently cross examined by
the counsel for the accused nothing was brought out to disbelieve their
version. Therefore, I find that the oral evidence of PW1, PW2, PW4 and PW5
is sufficient to prove the prosecution case. All the witnesses have identified
the accused persons in the dock. All of them deposed that originally the
accused persons have resided at Parakundu road and later they shifted to
some other place. Thus the evidence of these witnesses reveal that they have
got prior acquaintance with accused persons and there is no dispute regarding
the identity of the accused persons. The weapons used by the accused persons
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for attacking the victim were also identified by them.
35. Incidentally the counsel for the accused contended that when
the scuffle between the accused persons and PW2 and PW4 were going on,
PW1 intervened, by that time she sustained injury due to an accidental attack
defence PW2 was carrying an iron rod which was produced in the counter case
(SC.600/2022). The chances of such an attack by PW2 in this case is ruled
out in the counter case. Therefore, I am unable to accept the defence set up
by the accused that PW1 sustained fracture due to the blow made by PW2 by
using MO1 weapon produced in SC.600/2022.
36. It is further contended by the counsel for the defence that due
to some political rivalry this case is falsely foisted against these accused
accused and based on the evidence made available before court it can never be
held that it is a case of false implication. The answers given by PW1, PW2,
PW4 and PW5 reveal that they have deposed only the truth before court.
They have wholeheartedly accepting their political nexus and the political
political party it cannot be presumed that it is a case of false implication. Can
it be said that for falsely implicating these accused persons these injuries
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sustained by PW1, PW2 and PW4 were manipulated? It can never be.
Therefore, I am rejecting such contention taken by the defence that it is a case
of false implication due to political rivalry.
interested witness and hence her evidence is to be disbelieved. The nature of
examination reveal that she has given only the real facts before court. She has
admitted her political relationship, the political party of the victim of this case
and the political party of the accused persons. Had she denied these political
disbelieving her testimony. She has not given any exaggerated version. It is
emphatically deposed by PW5 that it is PW5 who had hospitalised PW1 along
with PW4. This version is corroborated by the oral evidence of PW1 and PW4.
38. Likewise it is contended by the learned defence counsel that
the Special Public Prosecutor was not inclined to examine CW5, CW7 to
CW10, who were cited as eye witnesses in this case. It is true that CW5, CW7
to CW10 were not examined in this case. It is meaningless to examine several
number of witnesses to prove a particular case. If the evidence of witness who
again and again. The oral evidence of PW1, PW2, PW4 and PW5 appears to
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be convincing and inscribes confidence of court. If that be so, there is no
meaning in blaming the learned Special Public Prosecutor is not examining
CW7 to CW10. According to the defence counsel had CW7 to CW10 were
examined the real facts would have been brought before court. If that be so,
the defence could have examined these witnesses and could have established
a different version quite contrary to the prosecution case. When evidence
available before court is concrete and convincing it is meaningless to blame
learned Special Public Prosecutor was very clever in not examining all
grounds, I am of the view that the nonexamination of CW4, CW7 to CW10 is
of no consequence in this case. It is not the quantity of the witnesses that is
to be looked into but it is the quality. It is well settled that the evidence is to
be weighed and not to be counted.
39. Yet another contention taken by the defence is that as per
Ext.P2 wound certificate there is no fracture on the right thigh of PW1. Infact
the answer to such contention is brought out from the evidence PW3, the
doctor. According to PW3, Xray facility and service of Orthopedic doctor was
not available in the Taluk Head Quarters Hospital, Alathur in the afternoon
and therefore, Xray could not be taken. In such circumstance, PW3 cannot
blamed in not noting the fracture of bone in Ext.P2 wound certificate.
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40. Likewise the counsel for the accused has highlighted the
version of PW1, PW2 and PW4 that due to bone fracture of right thigh of
explained by PW11 during his examination. As per the version of PW11, PW1
sustained type1 open fracture on femur. It is further explained by PW11 that
type1 open fracture comes from a small wound, the bone might have come
outside and might have bounced back. In such circumstance, they will call it
as type1 bone fracture. Usually the injury will be 1 cm size. The doctor has
also deposed that by making use of MO1 weapon these types of injury can be
caused. Thus the explanation offered by PW11 that “the bone might have
come outside and might have bounced back” reveal that at the time of
examination of PW1 by PW3 the fracture injury may not be visible to PW3.
Moreover PW3 has not taken Xray of the affected body parts. The answers
given by PW11 further reveal that though PW1 was treated by George Alan he
has also seen and treated PW1 being the unitchief of that department. Doctor
George Alan who had primarily treated Parvathy was working under PW11 as
a Senior Assistant during the relevant period. But PW11 being the unitchief
of that department he has seen PW1 on all the days while PW1 was
undergoing inpatient treatment at the Medical College Hospital, Thrissur. It is
specifically deposed by PW11 that he has seen Parvathy (PW1) during rounds.
According to him, the details of open fracture, external injury etc are stated in
25
the case sheet and it was not there in the referral note. It is come out from the
evidence of PW11 that the doctor George Alan who has treated Parvathy has
later resigned from the Health service and joined in the Civil service. PW11
has also formally proved Ext.X1 case sheet, discharge certificate etc. In
Ext.P10 discharge certificate also it is specifically stated that PW1 was treated
in Govt. Medical College Hospital, Thrissur for open supra condylar femur
fracture ®. Ext.X1 is the case sheet of Parvathy. The entries in Ext. X1 case
sheet also reveal that PW1 sustained fracture of supra condylar femur. The
entire treatment given to PW1 is stated in X1 case sheet in detail. It reveals
that prolonged inpatient treatment was given to PW1. The daily treatment
given to the patient, the progress of treatment etc were very clearly stated in
Ext.X1 case sheet in detail. The entries in Ext. X1 case sheet reveal that
surgery was done.
41. Likewise Ext.X2 case sheet reveal that PW4 was admitted in
Govt. Medical College Hospital, Thrissur and discharged on 160518. Thus
the oral evidence of PW11 give answer to the doubt expressed by the defence
counsel that there is no fracture or give explanation to the nonmentioning of
fracture in Ext.P2 wound certificate. It is to be noted that when PW1 attended
the court for giving evidence in June 2022 she appeared before court with the
help of walker and it was difficult for PW1 to stand in the witness dock. This
reveals the casualty and gravity of the injury sustained by PW1.
26
the prosecution case is the mentioning of several accused persons in Ext.P1
FIS and subsequent deleting of these persons from the array of the accused. In
fact this was clarified by PW1 during examination before court. During
examination PW13, the Investigating Officer deposed that even though he has
met all those persons who were present at the place of occurrence those
persons were not cited as witnesses. According to the defence counsel the
very fact that these persons were not cited as prosecution witness is a ground
Investigating Officer to decide who all are persons to be cited as prosecution
witness. If he believes that the persons who though available at the place of
occurrence are not willing to give evidence supporting the prosecution case,
the Investigating Officer is justified in not citing them as witnesses. In such
circumstance, simply because the Investigating Officer has not cited all the
persons who were available at the scene of occurrence as witnesses it is not a
ground to disbelieve the whole prosecution case.
43. If the defence believes that had these persons were examined,
a different version rather real version or the truth will come out the, defence
could have examined all those persons and establish that the prosecution case
Investigating Officer especially when the evidence made available before court
27
is concrete and convincing.
Ext.P1 FIS PW1 stated that by using an iron rod Anwar has attacked her. But
MO1 is only an iron pipe. It is to be noted that PW1 clearly identified MO1 as
the weapon used for attacking her. In such circumstance, simply because she
has stated in Ext.P1 FIS that by making use of an iron rod she was attacked by
A1 it is so no consequence. It is to the bear in mind that PW1 is a rustic
further to be bear in mind that PW1 has given Ext.P1 FIS while she was
even surgery was not done and not adequate treatment was given to PW1 in
the Taluk Head Quarters Hospital, Alathur. That is evident from the testimony
of PW3. In such circumstance, merely because PW1 has used the term an iron
rod instead of iron pipe, that is not a ground to disbelieve the whole
encyclopedia and it is not expected to contain each and every minute details
and description of the weapon used. Therefore, I am unable to accept the
argument canvassed by the learned counsel for the defence.
45. Incidentally it is contended by the counsel for the defence that
during examination initially PW1 deposed that she is not recollecting whether
she had inscribed her signature in Ext.P1 FIS. But when PW1 was confronted
28
with Ext.P1 FIS, she admitted that it is her signature. It is to be noted that all
along PW1 is deposing that she has given Ext.P1 FIS and she admitted that the
signature found in Ext.P1 FIS is that of her. In such circumstance, the mere
fact that she deposed that she is not recollecting whether she inscribed
signature in Ext.P1 FIS is of no consequence. The very fact that PW1 deposed
that she is not recollecting whether she has inscribed signature in Ext.P1 FIS
and very fact that she identified her signature when Ext.P1 FIS was
confronted to her itself reveals that she is not a tutored witness and she is
these facts highlighted by the defence reveal that PW1 is narrating the truth
before court. She has not given any exaggerated versions. She was not at all
a tutored witness. Therefore, I am unable to accept such slip of tongue of
PW1 as a reason for disbelieving the prosecution case.
46. Likewise the learned counsel for the accused argued that even
if it is found that PW1 sustained fracture due to the act of A1, only offence
punishable u/s. 338 IPC will be attracted on the given set of facts. According
to the learned counsel for the accused PW1 sustained injury when she
intervened in the scuffle between accused, PW2 and PW4. It is to be noted
that as per the version of PW1, PW2, PW4 and PW5 it was not an accidental
act. When PW1 requested the accused to stop attacking her children A1
uttered to stay away and beat PW1 on her right thigh and she fell down. The
29
തരടയറല തലടലറ”. The very same version is reproduced by PW1 during cross
examination. PW2, PW4 and independent witness, PW5 have given identical
version. In such circumstance I am unable to accept the argument canvassed
by the counsel for the accused that PW1 sustained injury due to accidental act
committed by A1 so as to attract offence punishable u/s. 338 IPC.
accused Nos. 1 and 2 reached the place of occurrence at Parakkundu at the
same time. Both of them used dangerous weapons such as iron pipe and stick
to attack PW1, PW2 and PW4. It is revels that the accused persons have
shared common intention. It is immaterial whether the overt act done by A2
has not caused grievous hurt. In a scuffle it is quite common that the result of
overt act committed by each accused may caused different injuries depending
upon the force applied. The question is whether each accused has committed
any overt act for attacking the victims. In such circumstance simply because
the act done by A2 has not caused grievous hurt he cannot escape from the
penal liability in view of section 34 IPC. Had A2 has not used any weapon and
not attacked the victims it could have been said that A2 has not shared any
committed the offence infurtherance of their common intention. Point Nos.
30
2, 3 and 6 found in favour of the prosecution.
have attacked PW1, PW2 and PW4 with the knowledge that they belong to
member of SC/ST community. But in Ext.P1 FIS there is no such statement
that the accused persons have attacked PW1, PW2 and PW4 with the
knowledge that they belong to member of SC/ST community. During the
course of examination also none of the witness such as PW1, PW2 and PW4
deposed that the accused persons have attacked them for the sole reason that
they are members of SC/ST community. In the absence of such positive
evidence being let in by the prosecution it cannot be held that the accused
persons have attacked PW1, PW2 and PW4 due to the tribal identity of the
victim or with the knowledge that the victims are members of SC/ST
community.
49. In this context, it is worthwhile to rely on the decision of the
Hon'ble High Court of Kerala report in 2022 KHC 716. In that case
knowledge or awareness that victim is a member of SC/ST at the time of
commission of the atrocity must be there. Here Ext.P1 FIS is totally silent
about these relevant facts. Likewise there is no evidence to prove those facts.
50. Likewise even though it is alleged by the prosecution that the
accused persons have abused the defacto complainant and others and
31
intentionally insulted them with intent to humiliate them, how the accused
persons have insulted or abused the defacto complainant and others with
intent to insult them is not seen deposed during the course of examination.
Likewise the actual abusive words was not seen reproduced by PW1 and
succeeded in establishing that the accused persons have committed offence
punishable u/s. 3(1) (r) and 3(2)(v) of SC/ST (POA) Act. Point Nos.1 and 4
found against the prosecution.
51. Point No.5: Who is the aggressor of the incident. As per the
defence case on 120518 there was some altercation between the sister of the
accused and PW2 herein. Accordingly this was informed to the first accused
Parakkundu road junction. While the first accused was discussing the issue
with PW1, Parvathy, PW2 herein has destroyed the vehicle belongs to A1
bearing No.KL49G2051 and thereafter, PW2 and PW4 have attacked the
accused herein by using an iron rod and sticks. Thus as per the case of
defence PW2 is the aggressor of the incident.
52. It is to be noted that as per the defence version all the window
glass of the swift car bearing No.KL49G2051 was destroyed by PW2 and
remnants of glass pieces of the broken window glass of the car should be
32
there at spot at Parakkundu. Not even a single piece of glass was found by the
Investigating Officer in this case while preparing Ext.P5 scene mahazar on
13052018 at about 11.30 am. The certified copy of the very same scene
mahazar is produced in SC.600/22 (Cr.No661/2018). Had the aggressor of
the incident was PW2 by destroying the car belonging to A1 necessarily the
broken pieces of glasses of window of the car should be there at spot. The
absence of any such glass pieces at spot at the place of occurrence itself
reveals that the vehicle was not destroyed at spot and the aggressor of the
incident is not PW2 as contended by the defence. It is pertinent to note that in
the scene mahazar the presence of blood at the place of occurrence was
reported in Ext.P5 scene mahazar. Considering all these facts, I find that the
aggressor of the incident is not PW2 but it is A1 in this case. Point No.5 found
in favour of the prosecution.
Point No.7:
establishing that the accused persons have caused hurt to PW2 and PW4 and
caused grievous hurt to PW1 beyond the shadow of any reasonable doubt. In
u/s. 324 and 326 r/w 34 IPC and the prosecution failed to prove that the
33
accused have committed offence punishable u/s. 3(1) (r) and 3(2) (v) of
SC/ST (POA) Act.
54. In the result, accused are found guilty of offences punishable
under Sections 324 and 326 r/w 34 IPC and accused are found not guilty for
offences punishable under section 3(1) (r), 3(2) (v) of SC/ST (POA) Act.
Therefore, accused are to be convicted under Section 235 (2) Cr.P.C.
Dictated to the Confidential Assistant, transcribed and typewritten by
her, corrected by me and pronounced in open Court this the 18 th day of May
2023.
Sd/
Judge,
Special Court for SC/ST (POA) ACT Cases
Mannarkkad.
55. Heard the accused on question of sentence as provided under
Section 235 (2).
56. The first accused pleaded to shower maximum leniency while
awarding sentence. According to him, he has got a 2 year old child and the
child is seriously ill. Further he submitted that he is the only person available
in station to look after his age old parents.
leniency while awarding sentence. According to him he is the only earning
member to look after his family.
34
58. The victims in this case were also heard. PW1, the main
injured in this case submitted that for the last 5 years she is suffering a lot.
She is unable to fullfil her day today affairs such as going toilet, bathroom etc
without the help of her children and her husband. It is further submitted that
after the incident she could not move out of the house for attending any
family affairs. Even after 5 years PW1 appeared before the court with the help
of a walker. Thus PW1 submitted that adequate punishment shall be awarded
to the accused. PW2 and PW4 have also made similar submission.
59. The learned Special Public Prosecutor argued that the accused
persons have mercilessly attacked PW1 by an iron pipe and as a result fracture
occurred at her right thigh. The learned Special Public Prosecutor further
argued that it is come out from the evidence of PW1 that after the incident
PW1 could not walk even after five years and hence the learned Special Public
Prosecutor argued that maximum punishment is to be awarded to the accused
persons. Further the learned Special public Prosecutor canvased an argument
to award maximum compensation to the victim.
60. To the contrary the learned counsel for the accused canvassed
an argument to shower maximum leniency to the accused taking into account
of the grievance highlighted by the accused.
sustained grievous hurt and suffered a lot for the last five years, taking into
35
account of the submission made by the accused persons I am not inclined to
award maximum punishment prescribed in law to the accused. I find that
even now there exists chances of reformation of the accused. The court finds
that there is repentance on the side of the accused for having committed such
an offence.
62. Taking into account of all these facts I find that ends of the
imprisonment for one year each and to pay fine of Rs.10,000/ each for
offence punishable u/s. 324 r/w 34 IPC and sentenced to undergo rigorous
imprisonment for five years each and to pay fine of Rs.3 lakhs each for offence
punishable u/s. 326 r/w 34 IPC.
sentenced as follows:
2). Accused are sentenced to undergo rigorous imprisonment
for five years each and to pay fine of Rs 3,00,000/ each for
the offence punishable under Section 326 r/w 34 I.P.C.
3). If the fine amount is realized, a sum of Rs 5 lakhs / shall be
disbursed to PW1 as compensation as provided under section
357 (1) (b) Cr.P.C.
4). In default of the payment of fine amount, the accused shall
undergo simple imprisonment for a further period of 12
months each.
36
5). Substantial sentence of imprisonment shall run concurrently.
6). The accused are entitled to get set off for the pretrial
undergone by them as provided u/s. 428 Cr.P.C. (A110 days,
A28 days).
7). Address Honourable Chairman, District Legal Services Authority,
Palakkad to award a reasonable amount as compensation to PW1
under the Victim Compensation Scheme, 2021.
MO1 shall be confiscated and MO2 shall be destroyed in accordance
with law after the period of appeal.
Sd/
Judge,
Special Court for SC/ST (POA) ACT Cases
Mannarkkad.
A P P E N D I X
Witness examined for the prosecution :
PW1 : Parvathy W/o Jayachandran, Kannambra II Village, Alathur.
PW2 : Ranjith S/o Jayachandran, Kannambra II Village, Alathur.
PW3 : Dr. Bijoy Kumar, Junior Medical Consultant, Taluk Hospital,
Alathur
PW4 : Sanjay S/o Jayachandran, Kannambra II Village, Alathur
PW5 : Shakkela W/o Salim, Kannambra II Village, Alathur.
PW6 : Mohanan S/o Kandamuthan, Kannambra II Village, Alathur.
37
PW7 : Appunni.V, Village Officer, Kannambra II Village.
PW8 : R.P. Suresh, Tahsildar, Taluk Office, Alathur.
PW9 : Binoy Mathew, SCPO4267, Vadakkancherry Police Station.
PW10 : A. Aadamkhan, Sub Inspector of Police, Vadakkancherry Police
Station
PW11 : Dr.Shibu Andrews S/o Andrews,
PW12 : Dr.Poly. T. Joseph S/o T.I. Joseph.
PW13 : V.A. Krishnadas, Dy.SP, Alathur
Exhibits marked for prosecution
Ext.P1 : FI statement dated 12052018
Ext.P2 : Wound certificate of CW1 dated 12052018
Ext.P3 : Wound certificate of CW2 dated 12052018
Ext.P4 : Wound certificate of CW3 dated 12052018
Ext.P5 : Scene mahazar dated 13052018
Ext.P6 : Caste certificates of A1 & A2 dated 16062018
Ext.P7 : Scene plan dated 16062018
Ext.P8(a) : Caste certificate of CW1 dated 03072018
Ext.P8(b) : Caste certificate of CW2 dated 03072018
Ext.P8(c) : Caste certificate of CW3 dated 03072018
Ext.P9 : FIR dated 12052018
Ext.P10 : Discharge certificate of CW1 dated 07072018
Ext.P11 : Discharge certificate of CW2 dated 10072018
Ext.P12 : Arrest memo of A1 dated 13052018
Ext.P13 : Arrest intimation of A1 dated 13052018
Ext.P14 : Inspection memo of A1 dated 13052018
Ext.P15 : Complete address report of A1 dated 13052018
Ext.P16 : Arrest memo of A2 dated 15052018
Ext.P17 : Arrest intimation of A2 dated 15052018
38
Ext.P18 : Inspection memo of A2 dated 15052018
Ext.P19 : Complete address report of A2 dated 15052018
Ext.P20 : Seizure mahazar dated 13052018
Ext.P21 : Report to alter section dated 01062018
Ext.P22 : Report to alter SC/ST Act dated 13052018
Ext.P23 : Report to delete accused dated 01062018
Ext.P24 : Property list dated 01062018
Ext.P25 : Remand report of A1 dated 13052018
Ext.P26 : Remand report of A2 dated 16052018
Material Objects marked
MO1 : Iron pipe
MO2 : stick
Witness examined for the defence : Nil
Exhibits marked for the defence
Ext. D1 : Contradiction in 161 statement of CW1
Ext. D2 : True copy of FIR in Vadakkancherry Police Station Cr.No.661/18
Ext.D3 : Certified copy of final report in Vadakkancherry Police Station
Cr.No.661/18
Court Exhibits marked:
X1 : Case sheet of CW1 from Govt. Medical College Hospital,
Thrissur.
X2 : Case sheet of CW2 from Govt. Medical College Hospital,
Thrissur.
Tabular Statement as per Rule 207 of Cr.P.C. of Kerala
1. Serial No. :
2. Name of Police Station and : Vadakkancherry Police Station
Crime No. of the offences Cr.No. 659/18
3. Description of the accused
39
Judge,
Special Court for SC/ST (POA) ACT/
Additional Sessions Court
Mannarkkad.
40
Fair/Copy of judgment
in SC –403/2018
Dated 18052023