IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.Rev.Pet.No. 1023 of 2009() ------------------------------ CRA.467/2006 of SESSIONS COURT, KOTTAYAM CC.210/2001 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------------- SUDEEP.K.V, S/O.K.K. VARKEY, KATHACKEL (H), MANJOOR.P.O, KOTTAYAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): STATE AND FIRST ACCUSED -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MATHEW PAUL, S/O. PAUL KALLADAYIL HOUSE, NEAR KURUPPUNTHARA JUNCTION, OMALLOOR, KOTHANALLOOR VILLAGE. KOTTAYAM DISTRICT. (THERE WERE TWO ACCUSED AS PER THE CHARG SHEET. THE SECOND ACCUSED DIED PENDING TRIAL AND THE CHARGE SHEET AGAINST HIM GOT ABATED) THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1023 of 2009 -------------------------------------- Dated this the 22nd day of May, 2009. ORDER Heard counsel for petitioner. 2. PW1, defacto complainant has come up in revision challenging the judgment of Sessions Court, Kottayam in Crl.Appeal No.467 of 2006. 3. Facts of the case are thus: on 10.2.2001 at about 6.45 a.m. respondent No.2 and accused No.2 (he died pending investigation of the case) in furtherance of their common intention voluntarily caused hurt to petitioner hitting with stone, beating with hand, clicking on the abdomen, criminally intimidated and caused fear of death holding a chopper and thereby committed offences punishable under Sections 323, 324 and 506 (ii) read with Section 34 of the Indian Penal Code (for short, “the Code”). Police after investigation filed charge sheet against respondent No.2 for the said offences. Prosecution examined PWs 1 to 5 and proved Exts.P1 to P4. According to respondent No.2, there was dispute regarding right of way through his property, he had obtained an order of injunction against petitioner and others, in violation of that order petitioner trespassed into the property and later, respondent No.2 was falsely implicated. He proved Exts.D1 to D5 which are records in connection with O.S.Nos.36 of 2001 and 37 of 2001. Learned magistrate found respondent No.2 guilty of offences punishable under Sections 323 and 324 of the Code and sentenced Crl.R.P.No.1023/2009 2 him to undergo imprisonment for various periods. Respondent No.2 was acquitted of the charge under Section 506(ii) of the Code. Respondent No.2 took up the matter in appeal. Learned Sessions Judge on a consideration of the evidence found that respondent No.2 committed offence punishable under Section 323 of the Code and modified the sentence as fine of Rs.1,000/- with a default clause. Learned counsel for petitioner contends that acquittal of respondent No.2 for offence punishable under Section 324 of the Code is illegal. It is also contended that the sentence awarded under Section 323 of the Code is not sufficient. 4. So far as acquittal of respondent No.2 for offence punishable under Section 324 of the Code is concerned, the case found by the courts below is that respondent No.2 hit the petitioner with a stone but learned Sessions Judge found that since the stone is not recovered and there is no description of the stone given in evidence by the prosecution it is not possible to conclude that it is a dangerous weapon attracting offence under Section 324 of the Code. On that finding, the conviction was altered to Section 323 of the Code. I have gone through the judgments of the courts below and find no reason to interfere with the said finding. To classify a weapon as dangerous weapon, it must satisfy the requirements laid down under Section 324 of the Code. In the absence of so- called evidence, learned Sessions Judge is justified in holding that no offence under Section 324 of the Code is made out. No interference is required with that finding. 5. So far as sentence is concerned, the offence proved as found by Crl.R.P.No.1023/2009 3 the learned Sessions Judge is one under Section 323 of the Code. Injury suffered by PW1 (petitioner) as stated by PW3 and corroborated by Ext.P2 are minor abrasions and tenderness. Sentence is largely within the discretion of the trial/appellate court. Revisional court can interfere with the discretion in the matter of sentence only when the sentence imposed is so excessive or is alarmingly low. I am not inclined to think that any such situation arises in the case on hand. Hence, no interference is required at the instance of the petitioner in the matter of sentence awarded by the learned Sessions Judge. Resultantly, this revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks