IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 1817 of 2003(C) ------------------------------- CRA.227/1999 of ADDL. SESSIONS JUDGE(ADHOC)II, KASARAGOD CC.373/1995 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED ------------------------------------------ T.ABOOBACKER S/O. ABDULKHADER, MANHAMPARA, ADOOR VILLAGE. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON 28/01/2010 PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1817 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2010 ORDER Revision petitioner is the accused in C.C.No.373/1995 of Judicial First Class Magistrate, Kasargod and first appellant in Crl.Appeal No.227/1997 of Additional Sessions Judge (Adhoc) II, Kasargod. Revision petitioner along with accused 2 and 3 were convicted under Sections 341, 323, 324, 326 read with Section 34 of IPC by the trial court and were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/- each , in default to undergo simple imprisonment for six months each under Section 326 of IPC, to undergo rigorous imprisonment for one year each under Section 341 of IPC, rigorous imprisonment for six months each under Section 323 of IPC and rigorous imprisonment for two years each under Section 324 of IPC. The substantive sentences were ordered to run concurrently and the trial court has directed to give the fine amount, if realised, to PW1, the defacto complainant as compensation. On appeal by the accused persons, the lower appellate court found accused 2 and 3 not Crl.R.P.No.1817/03 Page numbers guilty of the offences alleged against them and acquitted them, but confirmed the conviction of revision petitioner/first accused under Section 326 of IPC and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/-, in default to undergo simple imprisonment for one month. He was found not guilty of the offences under Section 341 of IPC. The appellate court also found that as revision petitioner is found guilty of the offence punishable under Section 326 of IPC, the offences under Sections 323 and 324 are not attracted. The first accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on April 21, 1995 at about 2.30 p.m. while PW1, the defacto complainant, was returning to his house after Juma prayer in the mosque , first accused due to previous enmity pelted stones at him causing injuries on his left shoulder, on the lips and mouth and losing of one tooth and shaking of one tooth and that accused 2 and 3 wrongfully restrained him and voluntarily caused hurt by beating and kicking and that thereby committed the offences punishable under Crl.R.P.No.1817/03 Page numbers Sections 341, 323, 324, 326 read with Section 34 of IPC. 3. The accused persons on appearance before the trial court pleaded not guilty to a charge under Sections 341, 323, 324, 326 read with Section 34 of IPC. On the side of the prosecution, PWs 1 to 8 were examined and Exts.P1 to P6 and MOs 1 and 2 were marked. When questioned under Section 313 Cr.P.C, the first accused submitted that it was the defacto complainant who assaulted him regarding which there is a counter case against PW1. Second and third accused submitted that they are innocent of the offences alleged against them. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of evidence found the accused persons guilty of the offences punishable under Sections 341, 323, 324, 326 read with Section 34 of IPC, convicted them thereunder and sentenced them as aforesaid. On appeal by the accused persons, the lower appellate court acquitted accused 2 and 3 , but confirmed the conviction of the revision petitioner under Section 326 of IPC and modified the sentence as mentioned above. First accused has now come up in revision challenging his conviction and Crl.R.P.No.1817/03 Page numbers sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 326 of IPC rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. PWs 1 to 8 were examined and Exts.P1 to P6 and MOs 1 and 2 were marked on the side of the prosecution to prove the guilt of the accused persons. PW1 is the defacto complainant. PW2 is the alleged independent eye witness. PW3 is the wife of the defacto complainant who was an eye witness to the incident. PW4 is the Doctor of Govt. Hospital, Kasargod who treated PW1 and issued the wound certificate Ext.P3. PW5 is a witness to the scene mahazar Ext.P4. PW6 is the Head Constable of Adhur police station who on receipt of the intimation from the Govt. Hospital went there and recorded the statement of PW1 Ext.P1. PW7 is the Sub Inspector of Adhur Police Station who conducted investigation and laid the charge Crl.R.P.No.1817/03 Page numbers before the trial court. PW8 is the Medical Officer of Malik Dinar Hospital who proved Ext.P6 wound certificate issued from the hospital. 7. PW1 the defacto complainant testified in terms of Ext.P1 FI statement. He would say that on April 21, 1995 while was returning to his house after attending Juma prayer from the nearby Mosque, first accused followed him and threw stones at him which hit on his right shoulder and also on the face causing injuries described in Ext.P3 wound certificate. He lost one tooth and one tooth became shaky. He further submitted that accused 2 and 3 also wrongfully restrained him and voluntarily caused hurt to him by beating and kicking and that on hearing his cry PW3 and children came there . 8. The evidence of PW1 is supported to some extent by PW2, the eye witness to the incident. He has turned hostile , but submitted that he had seen the accused throwing stones on PW1. PW3 is the wife of the defacto complainant who supported PW1. I have gone through the evidence of PWs 1, 2 and 3. I find no reason to disbelieve their evidence. Both the courts below have chosen to accept their evidence. I find no special reason to come to a different conclusion. That apart, Crl.R.P.No.1817/03 Page numbers PW1 sustained corresponding injuries as evidenced by Ext.P3, the wound certificate. PW4 the doctor who treated him has testified that those injuries could be caused by pelting stones. 9. Learned counsel for the revision petitioner argued that there is a counter case as Crime No.83/1995 which was taken on file by the same court as C.C.77/1996 and that both the cases were not simultaneously tried by the trial court which resulted in miscarriage of justice to the accused. There is no substance in the above contention. On going through the judgment of lower court, it is seen that both the cases were tried simultaneously and were disposed of . Therefore, the above contention of the revision petitioner cannot be accepted. 10. Learned counsel for the revision petitioner argued that as there are no independent witness to the incident, the interested version of PWs 1 and 3 cannot be believed. There is no force in the above contention. PW2 is an independent witness. Though he turned hostile, he supported the prosecution to some extent. He submitted that he had seen the first accused throwing stones on PW1. Thus to that extent, PW2 has corroborated the evidence of PWs 1 and 3. In my view both Crl.R.P.No.1817/03 Page numbers the courts below are justified in believing his evidence. 11. Counsel for the revision petitioner argued that PW1 must have sustained injuries described in Ext.P3 by falling. I do not agree. PW4, the doctor who treated him had categorically stated that all those injuries could not be sustained by fall. He also testified that those injuries could be caused by pelting with stone. 12. It is clear from the above evidence adduced on the side of the prosecution that first accused pelted stones at PW1 and caused the injuries described in Ext.P3. PW1 lost one tooth and second tooth was found shaking. Therefore, both the courts below are justified in finding him guilty under Section 326 of IPC. Therefore, I confirm the conviction of the first accused under Section 326 of IPC rendered by the trial court which is confirmed in appeal. Point No.2 13. As regards the sentence, the trial court has sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/- in default to undergo simple imprisonment for six months under Section 326 of IPC. The lower appellate court has reduced the Crl.R.P.No.1817/03 Page numbers substantive sentence to rigorous imprisonment for one year and to pay a fine of Rs. 5000/- in default to undergo simple imprisonment for one month. The incident occurred in 1995. Further the revision petitioner and the defacto complainant are neighbours. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and a fine of Rs. 15,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under Section 326 of IPC rendered by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that he is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 15,000/-, in default to undergo simple imprisonment for six months. Fine amount, if realised shall be paid to PW1, the defacto complainant, as compensation as provided under Section 357(1) Cr.P.C. Revision petitioner shall surrender before the trial court on or before 25-02-2010 to receive the sentence. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1817/03 Page numbers