IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 432 of 2002() ----------------------------- CRL.A.NO.38/97 OF SESSIONS COURT, KOTTAYAM C.C.389/04 OF J.F.C.M II, KANJIRAPPALLY REVN. PETITIONER(S): REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- RAJAPPAN, S/O. RAMANKUTTY, SRUTHINILAYAM, MOORAPARA JUNCTION, KIZHAKKUMBHAGOM JUNCTION, CHIRAKADAVU VILLAGE. BY ADV. SRI.P.RAVINDRA BABU RESPONDENT(S): RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (SUB INSPECTOR OF POLICE, PONKUNNAM, KOTTAYAM, CRIME NO.90/94). PUBLIC PROSECUTOR C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.432 of 2002 ---------------------------------------- Dated this the 27th day of March 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 324 I.P.C. The sentence imposed alone was modified by the appellate court and the petitioner/accused now faces a sentence of S.I for a period of six months and fine of Rs.2,000/- and in default to undergo S.I for a period of five months. If realised, half of the amount was directed to be released to PW2. 2. The prosecution alleged that at about 7.30 a.m on 12/5/1994, in the residential compound of the accused, the accused had caused simple injuries to PW2, the victim, his sister- in-law by beating her with a dangerous weapon - a coconut cudjan stick. On the basis of Ext.P1 F.I.S lodged by PW2, the victim Ext.P3 F.I.R was registered by PW6 Head Constable. Investigation was conducted by PW8 and after verifying the investigation, final report was filed by PW9. PWs 1,3 and 4 are alleged eye witnesses to the occurrence. PW1 is the husband of PW2. PW4 is his child/son and PW3 claims to be an independent neighbour. PW5 doctor had examined PW2 shortly after the Crl.R.P.No.432/2002 2 occurrence and issued Ext.P2 wound certificate. Ext.P4 intimation was issued by him to the police. PW7 is an attester to Ext.P5 scene mahazer. 3. Cognizance was taken on the basis of the final report submitted by PW9 who verified the investigation of PW8. The accused denied the offence alleged against him. Thereupon the prosecution examined PWs 1 to 9 and proved Exts.P1 to P5. The accused took up a defence of total denial and he contended that false allegations have been raised against him. PWs 2,3 and 4 supported the prosecution case; but PW1, the husband of PW2, turned hostile completely and has asserted that he has not witnessed the occurrence. No defence evidence was adduced. 4. The courts below concurrently came to the conclusion that the oral evidence of PWs 2,3 and 4 can be believed and when believed, it establishes the offence alleged against the accused. Accordingly, they proceeded to pass the impugned concurrent judgments. As stated earlier, the appellate court indulgently modified the sentence though initially the sentence imposed by the trial court was R.I for a period of one year. 5. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the Crl.R.P.No.432/2002 3 nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner contends that both courts erred grossly in placing reliance on the oral evidence of PWs 2,3 and 4. PW1, the husband of PW2 and the brother of the petitioner herein had turned hostile to the prosecution. PW2, the victim, PW3 an independent neighbour and PW4 the child of PW2 had all supported the prosecution version. PW2 is interested, it is contended. PW3 is an obliging witness who has been cited by PW2 in several cases. They are persons who offer assistance to each other mutually to support proceedings initiated against them before courts and other authorities, it is contended. Evidence of PW4, a child witness should not have been accepted as he does not figure as a witness in the F.I.R or other earlier documents. In these circumstances, it is prayed that the discretion exercised by both courts in placing reliance on the oral evidence of PWs 2,3 and 4 may be interfered with and the benefit of doubt may, at any rate, be conceded to the petitioner. 6. I am unable to agree. The evidence of PW2 is eminently supported by the tell tale injuries found on her person when she was examined by PW5 doctor which injuries are Crl.R.P.No.432/2002 4 recorded in Ext.P2. Injuries are of course simple; but the version of PW2 is amply supported by such injuries found on her person. Moreover, her version is further supported by the contents of the prompt F.I.S Ext.P1 lodged by her before the police. 7. Even if the oral evidence of PWs 3 and 4 were to be eschewed, I am of the opinion that the courts below have committed no error warranting revisional correction in accepting the version of PW2 that she has suffered injuries in the manner alleged by the prosecution. Interference in revision is hence not necessary with that finding of fact. 8. The learned counsel for the petitioner contends next that, at any rate, the conviction under Section 324 I.P.C is not justified. When simple hurt is caused, the offence would be one punishable under Section 323 I.P.C only unless the weapon used is a dangerous weapon falling within the description of a dangerous weapon in Section 324 I.P.C. In the instant case, there is some confusion about the nature of the weapon. One version appears to be that cudjan sticks available in the courtyard as fire wood is taken by the accused for the attack. The other version is that he had cut out a stick for the purpose and had attacked the victim. The question is about the nature of Crl.R.P.No.432/2002 5 the weapon. Offence under Section 324 I.P.C would be attracted only if simple hurt is caused “by means of any instrument for shooting, stabbing or cutting or any instrument which used as a weapon of offence is likely to cause death”. The weapon in the instant case is not admittedly one for shooting, stabbing or cutting. The only question then is whether that weapon/stick used as a weapon of offence is likely to cause death. There is no contention that any other limb under Section 324 I.P.C is attracted. We have no satisfactory evidence about the nature of the weapon, its length, breadth, weight etc. The simple evidence is that the coconut cudjan stick was taken and used for beating. The weapon has not been seized. The nature of the weapon has not been brought out in detail in the evidence of the eye witness. An idea about the nature of the weapon can be gathered from the nature of injuries described in Ext.P2 and spoken to by PW5 doctor. I extract the injuries below: “i) Abrated contusion left side of the face 6 x 4 cm ii) Lacerated wound right side of the oral aspect of cheek 0.5 cm. iii) Contusion right side of cheek 3 x 2 cm. iv) Abrasion front of right upper arm v) Contusion right shoulder 4 x 3 cms.” Crl.R.P.No.432/2002 6 9. These injuries do not at all convey to me that the weapon can be assumed to be such as to fall within the description of dangerous weapon in Section 324 I.P.C. It follows that the conviction under Section 324 I.P.C is not justified and conviction can be entered only under Section 323 I.P.C. 10. We now come to the challenge against the sentence imposed. S.I for a period of six months and fine of Rs.2,000/- along with default sentence is the sentence which the petitioner now has to face. The learned counsel for the petitioner submits that leniency may be shown. The parties are likely to settle their disputes. The husband had turned hostile indicating unmistakably the nature of the relationship between the parties. I am of the opinion that serious view must be taken of the alleged contumacious conduct on the part of the accused. His sister-in-law PW2 had lend money to him. It was promised that it would be returned to her. She needed that money in connection with a marriage in the family. She came demanding return of the money. The money was not paid; instead, she who demanded the money was beaten with a stick. It certainly is not a case where unjustified leniency can be shown to the petitioner. However, I take note of the relationship between the parties. I Crl.R.P.No.432/2002 7 do, further note that the incident must have been taken place in the spur of the moment without any prior intention. I take note of the submission of the learned counsel for the petitioner that the petitioner will make amends by compensating the sister-in- law. The matter has not been settled yet, it is submitted. I am, in these circumstances, satisfied that leniency can be shown on the question of sentence. In coming to this conclusion, I take note of the possibility of the relationship between the parties being marred beyond repair in the event of a deterrent substantive sentence. I am satisfied that subject to appropriate conditions which shall ensure that the victim is adequately compensated, leniency can be shown to the question of sentence. 11. In the result, a) This revision petition is allowed in part. b) The conviction is altered from Section 324 to Section 323 I.P.C. c) The sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay an amount of Rs.10,000/- (Rupees ten thousand only) as Crl.R.P.No.432/2002 8 compensation and in default, to undergo S.I for a period of two months. 12. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 02/05/2009 to serve the modified sentence hereby imposed. The impugned sentence shall not be executed till that date. If the petitioner does not so appear before the learned Magistrate or his sureties had not produced him before the learned Magistrate as directed above, needless to say, appropriate action under Section 446 Cr.P.C can be taken against the petitioner and his sureties by the learned Magistrate. (R.BASANT, JUDGE) jsr Crl.R.P.No.432/2002 9 Crl.R.P.No.432/2002 10 R.BASANT, J Crl.R.P.No.432 of 2002 ORDER 27th DAY OF MARCH 2009