Kerala High Court
Yasar vs State Of Kerala on 23 June, 2025
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Crl.R.P.No.274 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
CRL.REV.PET NO. 274 OF 2016
CRIME NO.796/2006 OF Vadakara Police Station, Kozhikode
AGAINST THE JUDGMENT DATED 05.10.2015 IN Crl.A NO.52
OF 2013 OF ADDITIONAL SESSIONS COURT, VATAKARA ARISING OUT
OF THE JUDGMENT DATED 09.01.2013 IN CC NO.12 OF 2007 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKARA
REVISION PETITIONER/APPELLANT/1ST ACCUSED:
YASAR
S/O.MOIDU, PUTHUKANDIYIL HOUSE, CHEMMARATHUR
AMSOM, DESOM, VATAKARA
BY ADVS.
SHRI.ABRAHAM P.GEORGE
SMT.M.D.BEENA
SRI.THOMAS MATHEW (KOPPARA)
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
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REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,ERNAKULAM
OTHER PRESENT:
SMT. MAYA.M.N (PP)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 23.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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ORDER
Aggrieved by the concurrent finding of
conviction and sentence under Sections 323 and 325
of IPC, the present revision petition has been
filed by the 1st accused in C.C.No.12 of 2007 on the
files of the Judicial First Class Magistrate Court,
Vatakara.
2. The prosecution case is that on 15.11.2006
at about 3.15 p.m., at a place called ‘Edodi
Junction’ in Vatakara, the accused attacked PW1
using dangerous weapons and inflicted grievous hurt
to him. It is alleged that when the 1st accused
pulled down PW1 from his autorickshaw, the 2nd
accused gave a blow on his forehead using a
knuckleduster. It is also alleged that another
unidentified person kicked PW1 at the time. Hence,
the prosecution alleged that the accused have
committed the offences under Sections 341, 323, 326
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and 294(b) r/w 34 of IPC.
3. During the pendency of the case in the
trial court, the 2nd accused absconded and the case
against him was split up. In the trial court, from
the side of the prosecution, PW1 to PW6 were
examined and Exts.P1 to P7 documents were marked.
When examined under Section 313 Cr.P.C, the 1st
accused denied all the incriminating circumstances
appearing against him in evidence and contended
that he is innocent. From the side of the 1 st
accused, no evidence was adduced. The trial court,
on an appreciation of the evidence on record, found
the 1st accused not guilty of the offences
punishable under Sections 341, 326 and 294(b) IPC
and he was acquitted therein. But it found the 1st
accused guilty of committing the offences
punishable under Sections 323 and 325 of IPC and
convicted him thereunder. The 1st accused was
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sentenced to undergo rigorous imprisonment for a
period of one month and to pay a fine of Rs.1,000/-
under Section 323 of IPC and rigorous imprisonment
for a period of one year and to pay a fine of
Rs.5,000/- under Section 325 of IPC, both with
default clause. The 1st accused carried the matter
in appeal by filing Crl.Appeal No.52 of 2013 before
the Additional Sessions Court, Vatakara. The said
court, by judgment dated 5.10.2015, dismissed the
appeal.
4. Heard the learned counsel for the revision
petitioner and the learned Public Prosecutor.
Perused the records.
5. The learned counsel for the revision
petitioner contended that both the trial court and
the appellate court did not properly appreciate the
evidence on record and has arrived at a wrong
conclusion of guilt against the 1st accused. She
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submitted that the only overt act alleged against
the revision petitioner is that he has pulled the
victim out of the autorickshaw and has fisted him
using his hand. She also argued that the injuries
have been inflicted on the victim by the 2 nd accused
who had used a knuckleduster. She contended that,
in the light of the facts and circumstances of this
case, the revision petitioner cannot be roped in
by invoking Section 34 of the IPC and if so, cannot
be found guilty of the offence under Section 325 of
IPC.
6. Per contra, the learned Public Prosecutor
supported the impugned judgments and contended that
there are no grounds to interfere with the same.
She argued that the evidence of PW1 and PW2
regarding the incident and the manner in which the
events have taken place are credible and cogent.
She submitted that immediately after the incident,
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PW1 has lodged the FIS and the name of the accused
find a place in it. She further submitted that the
medical evidence adduced also supports the
prosecution case in material and from the evidence
on record, it can be safely concluded that the
revision petitioner and the 2nd accused shared a
common intention while attacking the victim.
7. The evidence on record shows that PW1, the
injured, has given evidence in tune with the
prosecution case. His evidence to the effect that
on 15.11.2006 at about 3.15 p.m, while he was
waiting for a passenger in his autorickshaw, the
accused came there and requested him to take them
to Thazhe Angadi. When he informed the accused that
he was waiting for a passenger, the accused got
enraged and the 1st accused, after abusing him with
ugly words, caught hold of his collar and pulled
him out from the autorickshaw and hit on his forehead.
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At that time, the 2nd accused hit him on his
forehead using an unidentified object. Thereafter,
the 1st and 2nd accused together beat him on his hand
and chest. When the nearby autorickshaw drivers
intervened, the accused left the scene. It is to
be seen that the evidence of PW1 also gets support
and corroboration from the evidence of PW2, who
stated that he had seen the incident of PW1 being
attacked by the accused. His evidence also shows
that it is he, along with another person who had
taken PW1 to the police station and thereafter, to
the hospital after the incident. Even though these
witnesses have been cross-examined in extenso,
nothing has been brought out to disbelieve them.
7. Moving further, the evidence of PW5 coupled
with Ext.P1 FIS shows that PW1 has, immediately
after the incident, approached the police. It can
be seen that the FIR has been registered at about
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3.30 p.m. and that it mentions the name of the
accused as the assailants. It is also to be seen
that the recitals in Ex.P1 FIS, tallies in
material particulars with the testimony of PW1
regarding the incident. Further, it is to be taken
note that immediately after the incident, PW1 has
also sought medical aid from the Government
Hospital, Vatakara. The evidence of PW3 coupled
with Ext.P2 wound certificate shows that he had
examined PW1 at about 4.15 p.m and has noted
serious injuries including, comminuted fracture of
left frontal bone. It is true that in Ext.P2 wound
certificate, the names of the accused are not there
and instead, the names of two other persons find a
place. But, PW1 has specifically deposed that he
had thus given the names to the doctor mistakenly.
Both the trial court and the appellate court have
not disbelieved this aspect and I also do not find
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any reason to give any weightage to the said
discrepancy, especially considering the fact that
the names of the accused finds a place in the FIR.
Thus, from the afore evidence, it can be seen that
the medical evidence adduced by the prosecution
also supports the version of PW1 regarding the
manner in which the incident has taken place and
the injuries sustained by him.
8. The contention of the learned counsel for
the revision petitioner that the revision
petitioner cannot be roped in by invoking Section
34 IPC, does not have any legs to stand. It is true
that direct proof of common intention is seldom
available and such intention is to be gathered from
the circumstances proved in each case. It is a
settled law that the prosecution need not establish
prior concert in every case and that the common
intention can be formed just before or even during
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the course of action. The facts and circumstances
brought out in evidence would show that it is the
first and second accused together who have
approached PW1 for hiring the autorickshaw and that
it is after getting agitated by his reply, they
have attacked him. It is also revealed that when
the 1st accused pulled PW1 out of the autorickshaw
and beat him with his hand, the 2nd accused has hit
him on his forehead using an unidentified object,
inflicting serious injuries. The manner in which
the incident has taken place would clearly show
that both of them had shared the intention to
attack PW1 and inflict injuries.
9. In the light of the afore discussions, I
find that there is no manifest error or illegality
in the trial court and the appellate court
appreciating the evidence and in reaching the
conclusion of guilt against the accused.
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10. Now the question to be considered is
regarding the sentence. Considering the nature of
offences, its gravity, the fact that the revision
petitioner/1st accused has not used any weapon, the
fact that the grievous hurt sustained by PW1 is
from the hands of the 2nd accused and the facts and
circumstances of this case, I am of the view that
the substantive sentence imposed by the trial court
and as upheld by the appellate court, is on a
higher side and the same can be modified and
reduced. I am thus of the view that the revision
petitioner/1st accused can be sentenced to undergo
simple imprisonment till the rising of the court
under Section 323 of IPC and simple imprisonment
for a period of three weeks under Section 325 of
IPC. But I am also of the view that the revision
petitioner/1st accused can be ordered to pay a
compensation of Rs.20,000/- to PW1 under Section
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357(3) of Cr.P.C and in case of default, to undergo
simple imprisonment for a further period of two
months.
In the result, this criminal revision petition
is allowed in part as follows:
(i) The conviction of the revision
petitioner/1st accused under Sections 323 and 325 of
IPC by the Judicial First Class Magistrate Court,
Vatakara in C.C.No.12 of 2007 and as affirmed by
the Additional Sessions Judge, Vatakara in
Crl.Appeal No.52 of 2013 is upheld.
(ii) The sentence imposed on the revision
petitioner/1st accused is modified and reduced to
one of simple imprisonment till rising of the court
under Section 323 of IPC and simple imprisonment
for a period of three weeks under Section 325 of
IPC.
(iv) The revision petitioner/1st accused is
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also ordered to pay a compensation of Rs.20,000/-
to PW1 under Section 357(3) of Cr.P.C. In case of
default in payment of compensation, the revision
petitioner/accused shall undergo simple
imprisonment for a period of two months.
Sd/-
P.V.BALAKRISHNAN
JUDGE
Scl/