IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 Crl.Rev.Pet.No. 38 of 2003() ---------------------------- CRA.185/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.222/1995 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- CHACKO S/O. OUSEPH, PULIPPARAMBIL HOUSE MUDIYOORKARA KARA, PERUMBAIKKADU VILLAGE. BY ADV. SRI.JAMES KURIAN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- KERALA STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. .NO.151/02 IN CRRP. 38/03 DISMISSED 25/5/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.38 OF 2003 --------------------------------------------- Dated 25th May, 2010 O R D E R Petitioner was convicted and sentenced to undergo simple imprisonment for six months and a fine of Rs.2,000/- and in default simple imprisonment for one month for the offence under Section 326 of Indian Penal Code in C.C.222/1995 by Judicial First Class Magistrate, Ettumanoor. Petitioner challenged the conviction and sentence before Sessions court, Kottayam in Crl.A.185/1999. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for CRRP.38/2003 2 the petitioner and learned Public Prosecutor were heard. 3. Prosecution case is that on 21/8/1995 at about 8.45 a.m while PW1 the injured was walking along the Panchayat road and reached Chemmanampadi Bhagom, because of the previous enmity petitioner voluntarily caused grievous hurt to him by beating him with a wooden stick, a dangerous weapon and thereby committed the offence under Section 326 of Indian Penal Code. Petitioner pleaded not guilty. Prosecution examined the injured as PW1, eye witnesses as Pws.2 and 3 and the doctor as PW4 and investigating officer as PW6 and marked Exts.P1 to P4. At the defence stage petitioner was examined as DW1 and Exts.D1 and D2 newspaper copies dated 19/5/1999 were marked. Learned Magistrate on the evidence found that evidence of PW1 is fully CRRP.38/2003 3 corroborated by the evidence of Pws.2 and 3. Evidence of PW4 with Ext.P2 wound certificate establishes that PW1 sustained grievous hurt and it was caused when PW1 was beaten with wooden stick, as proved by the evidence of PW4. Argument of the learned counsel is that courts below did not properly appreciate the evidence and in any case conviction for the offence under Section 326 of Indian Penal Code will not stand. Argument is that there is no finding by the learned Magistrate that weapon used to inflict the injury is a dangerous weapon and MO.1 is not the weapon by which PW1 sustained injury and evidence of PW4 establishes that fracture on the left elbow could have been caused by a fall and in such circumstances, conviction for the offence under Section 326 of Indian Penal Code is not sustainable and in any case, as the injury CRRP.38/2003 4 sustained by PW1 could have been caused on a fall, courts below should have granted the benefit of reasonable doubt. 4. The incident occurred on 21/8/1995 at about 8.45 a.m. PW1 was examined by the doctor at 9.10.a.m. Ext.P2 wound certificate shows that the alleged cause of injury as disclosed to the doctor when PW1 was examined was that he was beaten with a stick at about 8.45 a.m. Evidence of PW4 the doctor with Ext.P2 wound certificate establishes that X- ray of left elbow reveals fracture. Ext.P1 FI statement was recorded on the next day at 4.30 p.m while PW1 was being treated as an inpatient at Medical College, Kottayam. In Ext.P1, PW1 has narrated the entire incident including the reason for the previous enmity. Previous enmity spoken to by PW1 was not seriously challenged on cross examination. When CRRP.38/2003 5 petitioner was examined as DW1, he admitted the previous night's incident as according to him because of the incident occurred on that previous night he was attacked by PW1. When PW1 was examined, there was no such case except a suggestion that PW1 had bitten on the hand of the petitioner. It was denied by PW1. There is not even a suggestion to PW1 that PW1 either alone or with somebody else attacked him. So also there is no allegation that there was a scuffle involving petitioner and PW1 and as a result PW1 had fallen and sustained injury. Evidence of PW1 as to how he sustained injury was corroborated fully by the evidence of Pws.2 and 3. The learned Magistrate and learned Sessions Judge had appreciated the evidence in the proper perspective, I find no illegality or irregularity in the appreciation of evidence or the finding that PW1 sustained CRRP.38/2003 6 injury noted in Ext.P2 from the hands of petitioner when he was beaten on his left elbow with a wooden stick. 5. Though learned counsel argued that the offence would not come under Section 326 of Indian Penal Code as there is no evidence to prove that the weapon used is a dangerous weapon, the alleged cause of injury disclosed by PW1 is that he was beaten with a stick. It cannot be said that stick with which petitioner attacked PW1 or by which PW1 sustained fracture is not a dangerous weapon. Therefore, conviction for the offence under Section 326 of Indian Penal Code is perfectly legal and correct and warrants no interference. 6. Then the question is regarding the sentence. Argument of the learned counsel is that the incident occurred in 1995 and at this distant point of time, petitioner may not be CRRP.38/2003 7 sent to prison and he is prepared to compensate PW1 the injured. Learned Magistrate sentenced the petitioner to undergo simple imprisonment for six months and a fine of Rs.2,000/-. Offence under Section 326 provides for a sentence of imprisonment for life or imprisonment for a term which may extent to ten years or fine. Learned Magistrate imposed only the minimum sentence of simple imprisonment for six months in addition to a fine of Rs.2,000/-. When the sentence awarded by the learned Magistrate is very lenient, I find no reason to interfere with the sentence also. Revision is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.