IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 CRL.REV.PET.NO. 2125 OF 2008() -------------------------------------------- CRA.236/2006 OF ADDL.SESSIONS COURT (ADHOC), KASARAGOD CC.335/2003 OF JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED -------------------------------------------------------------- T.BALAN @ KANNUR BALAN, S/O.KORAN, THATHRAN VEEDU, ERUMAPALLAN, KALLYOTTU, PERIYAVILLAGE. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2125 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of July, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Jude (Adhoc-I), Kasargod in Crl. Appeal No.236 of 2006 confirming conviction and sentence of petitioner for the offence punishable under Section 326 of the Indian Penal Code (for short, “the Code). According to the prosecution on 13.1.2003 at about 8.45 a.m. while P.W.1 along with her child was going to the nearby Anganwadi and came to the place of occurrence near a temple petitioner along with accused Nos.2 to 4 in furtherance of their common intention wrongfully restrained P.W.1 and petitioner voluntarily caused hurt to her beating with M.O.1, a short stick. Learned magistrate found accused Nos.3 and 4 not guilty and acquitted them of all the charges. Petitioner was found guilty under Sect.326 of the IPC while accused No.2 was found guilty under Sec.326 read with 34 of the IPC. On appeal learned Additional Sessions Judge acquitted accused No.2 while confirming conviction and sentence of petitioner as aforesaid. It is contended by learned counsel that there is no reliable evidence to find petitioner guilty, at any rate under Sec.326 of the IPC. Further CRL. R.P. No.2125 of 2008 -: 2 :- contention is that sentence awarded is excessive. 2. P.W.4 examined P.W1 at District Hospital, Knhangad on 13.1.2003 and issued Ext.P3, wound certificate. Evidence of P.W.4 and Ext.P3 is that P.W.1 suffered fracture of right fibula and fracture of both bones of left lower leg. Though time of examination is not stated either in Ext.P3 or evidence of P.W.4 the latter examined P.W.1 in the hospital on 13.1.2003. So far as fracture allegedly suffered by P.W.1 is concerned, contention advanced is that X-ray films to confirm fractures are not produced. It is seen from Ext.P3 that Orthopeadician was also consulted and fractures were confirmed. There is evidence of P.W.4 in that line. There is no challenge to the finding in Ext.P3 that P.W.1 suffered fractures. 3. So far as the incident is concerned prosecution examined P.Ws.1 to 3 and 5. Exhibit P2 is the mahazar for scene of occurrence prepared by P.W.8. As per Ext.P2, M.O.1 short stick was seized from scene of occurrence. P.Ws.2 and 3 are also attesters in Ext.P2 but they refused to support prosecution while admitting that they signed Ext.P2. They denied that they witnessed the incident. P.W.1 in her evidence stated that on the relevant day at 8.45 a.m while she was going to the Anganwadi the incident happened. She stated that CRL. R.P. No.2125 of 2008 -: 3 :- petitioner collected M.O.1 from accused No.2 and beat her. She fell down. Petitioner again assaulted her with M.O.1. People who gathered there took her to the hospital. Motive alleged is that petitioner was engaged in sale of illicit arrack in front of her house which she intimated to the excise authorities. P.W.5 claimed that himself and wife were going to work in the quarry and came near the scene of occurrence. He heard a cry and while looking to the scene of occurrence saw petitioner collecting stick from accused No.2 and assaulting P.W.1. In cross-examination he stated that the quarry is about 2 kms. east of the scene of occurrence. His house is also situated about 2.5 kms. away from there. He claimed that he had been to the scene of occurrence to purchase some articles. Petitioner has a case that he was not even available at the scene on the relevant day and time and examined D.W.1 and proved Exts.D1 to D3. Exhibit D1 is the wound certificate issued by D.W.1. Evidence of D.W.1 and Ext.D1 is that on 13.1.2003 at about 10.05 a.m. D.W.1 had examined one Balan. It is stated that the said Balan had contusion on the left eye, abrasion on the forehead and contusion on the chest D.W.1 stated that those injuries could be either self inflicted or caused in a fall. CRL. R.P. No.2125 of 2008 -: 4 :- 4. Evidence of P.Ws.1 and 5 is attacked by learned counsel. According to the learned counsel evidence of D.W.1 and Exts.D1 to D3 probabilise the case of petitioner that he was not available at the scene of occurrence. Exhibits D2 and D3 are copy of complaint in S.T. No.307 of 2005 and sworn statement therein filed by T.T.Mohanan against Karthyayani. Courts below observed that Exts.D2 and D3 have no bearing on the issue involved in this case. 5. Assuming that petitioner was admitted in District Hospital at Kanhangad on 13.1.2003, that was at 10.05 a.m. while the incident occurred on that day at 8.45 a.m. There is no evidence to show that after the incident petitioner could not have reached the hospital at or by about 10.05 a.m. on the same day. Therefore evidence of D.W1 and Ext.D1 are not sufficient to show that petitioner is not involved in the incident. Regarding the incident there is evidence of P.Ws.1 and 5. I find no reason to disbelieve them. They have identified M.O.1 as the weapon of offence which was seized from the scene of occurrence as per Ext.P2. Conviction of petitioner under Sec.326 of the IPC requires no interference. 6. It is the further contention that sentence awarded is excessive. Learned magistrate sentenced petitioner to undergo simple CRL. R.P. No.2125 of 2008 -: 5 :- imprisonment for three years and fine of Rs.1,500/-. This is a case where P.W.1, a lady while going to the Anganwadi with her child was assaulted, left and right with M.O.1, short stick resulting in fractures. The reason according to P.W.1 is that she intimated the excise authorities about petitioner engaging in sale of illicit arrack near her house. Having regard to the facts and circumstances of the case and the nature of injuries suffered by P.W.1, I do not find reason to interfere with the sentence as well. Revision petition is without any merit and it is liable to be dismissed. Revision petition is dismissed. THOMAS P.JOSEPH, JUDGE. vsv