IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH JULY 2010 / 23rd ASHADHA 1932 Crl.Rev.Pet.No. 229 of 2002() ----------------------------- C.C.76/92 OF Judicial First Class Magistrate-II, KOTTAYAM CRL.A.138/97 OF ADDL.SESSIONS COURT, KOTTAYAM REVN. PETITIONER(S): PETITIONERS/APPELLANTS/ACCUSEDS: ----------------------------------------------------- 1. JOHN @ KOCHUNNY, S/O. CHANDY, VATTAKUNNEL PULICKAL PARAMBIL HOUSE, ERAKADAVU BHAGOM, MUTTAMBALAM, KOTTAYAM. 2. CHANDY @ ANIYAN, S/O. JOHN, VATTAKUNNEL PULILCKAL PARAMBIL HOUSE, ERAKADAVU BHAGOM, MUTTAMBALAM, KOTTAYAM. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUB LIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.299 OF 2003 --------------------------------------------- Dated 14th July 2010 O R D E R Second petitioner is the second accused in C.C.76/1992 on the file of Judicial First Class Magistrate-II, Kottayam. He was convicted and sentenced for the offence under Section 324 of Indian Penal Code along with first petitioner/first accused. Though they challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.138/1997, learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. When the revision was pending, first revision petitioner died on CRRP 229/02 2 11/1/2005. Consequently charge as against the first revision petitioner has abated. The question which survives for consideration is only whether the conviction and sentence for the offence under Section 324 read with Section 34 of Indian Penal Code as against the second petitioner is legal and proper. 2. Prosecution case is that on 1/10/1988 at about 8.45 p.m, due to the previous enmity of the accused to PW5, petitioners poured acid on PW2, while he was standing near the gate of house of PW5 and thereby committed the offence under Sections 308 and 326 read with Section 34 of Indian Penal Code. Though learned Magistrate committed the case to Sessions court, Kottayam which was taken on file as S.C.29/1989, learned Sessions Judge finding that an offence under Section 308 of Indian Penal Code exclusively triable by the CRRP 229/02 3 Sessions Court is not involved, sent back the records to Chief Judicial Magistrate for trial after, framing the charge for the offence under Section 326 read with Section 34 of Indian Penal Code. Learned Chief Judicial Magistrate made over the case to Judicial First Class Magistrate-II, Kottayam. Learned Magistrate on the evidence of Pws.1 to 11 and Exts.P1 to P6 , called upon the petitioner to enter on his defence and adduce evidence. Accused then examined DW1 and marked Ext.D1. Learned Magistrate on the evidence found that the accused poured acid on PW2 in furtherance of their common intention and voluntarily caused hurt and thereby committed the offence under Section 324 read with Section 34 of Indian Penal Code. Accused were sentenced to simple imprisonment for one month. Learned Sessions Judge re-appreciated the evidence and confirmed CRRP 229/02 4 the conviction. Argument of the learned counsel appearing for the second revision petitioner is that evidence was not properly appreciated by the courts below and evidence of DW1 with Ext.D1 should have been accepted by the courts below and it should have been found that PW2 sustained injuries not from the hands of the accused but when PW2 and others poured acid on the house of the accused while causing damage to the house and in such circumstances, conviction is not sustainable. 3. Evidence of PW7, the doctor with Ext.P3 wound certificate establish that at 9 p.m on 1/10/1988, immediately after the incident, PW2 was examined by the doctor from District Hospital, Kottayam and the doctor noted burns on his face, left shoulder, left arm, left ear, neck and left eye. Left cornea was found hazy. Considering the condition of CRRP 229/02 5 the patient, he was referred to Medical College, Hospital. Alleged cause of injury disclosed to the doctor was sustained when acid was poured at about 8.55 p.m at Erettu Kadavu. Ext.P6 discharge certificate issued from the Medical College Hospital, Kottayam proved by the evidence of PW11, who identified the signature of Professor of Ophthalmology who was not then in a service, establish that PW2 was treated in the hospital as an inpatient from 1/10/1988 to 24/10/1988. Evidence of PW7 with Ext.P3 wound certificate establish that PW2 sustained hurt and the hurt was caused when acid was poured on PW2. Even suggestion given to PW7 the doctor was that those injuries were caused, when acid fell on PW2, evidently in tune with the defence case that PW2 and others attempted to cause damage to the house of accused and during that acts, acid was poured CRRP 229/02 6 which accidentally fell on PW2. Therefore, it is conclusively proved that PW2 sustained hurt when acid fell on PW2. The only question is, whether it was poured by the accused or it had accidentally fallen on PW2 when PW2 and others, were committing damages to the house of the accused as canvassed by the defence. 4. I have gone through the entire evidence in the light of the defence raised by the petitioners. As rightly found by the learned Magistrate and learned Sessions Judge, it is absolutely clear from the evidence that PW2 did not sustain injuries as canvassed by the accused. Though crime No.396/1988 was registered in respect of the incident in which damages were caused to the house of the accused, there is no evidence to establish that it was in that incident PW2 sustained injury. Evidence of injured and Pws.3 and 4 the eye CRRP 229/02 7 witnesses were properly appreciated by the courts below and I find no reason to differ with the findings based on appreciation of evidence. Evidence conclusively establish that accused voluntarily caused hurt to PW2 by pouring acid which is corrosive substance on him in furtherance of their common intention. Therefore, conviction of the accused for the offence under Section 324 read with Section 34 of Indian Penal Code is perfectly legal and warrants no interference. 5. Then the only question is regarding the sentence. Argument of the learned counsel appearing for the second revision petitioner is that incident was in 1988 and at this distant point of time, second revision petitioner may not be sent to prison and PW2 is now no more and therefore, he is disabled from compounding the offence and as evidence establish that PW2 CRRP 229/02 8 sustained only simple burns with no deformity in the interest of justice sentence may be modified to fine. 6. Unfortunately prosecution did not adduce the evidence, which should have been adduced. PW2 the injured has not given evidence that he sustained any deformity consequent to the burn sustained. PW7 the doctor had only seen PW2 on the date of the incident and referred him to Medical College. Therefore, PW7 is not in a position to give the details of the treatment or the consequence of the injuries. Though PW11 was examined, he did not treat PW2 and only identified the signature to formally prove Ext.P6 discharge certificate. Learned Magistrate has also not recorded that when PW2 was examined he could find any deformity on PW2. Ordinarily, it would not have been omitted to be taken note of by the learned CRRP 229/02 9 Magistrate if there was any deformity. Considering the fact that the incident was in 1988 and there is no evidence to prove that PW2 suffered any deformity and the threat of imprisonment was hanging over the head of the petitioner for the last more than two decades, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and compensation of Rs.15,000/- to be paid to PW2 or is legal heirs. Sentence is accordingly modified. Revision petition is allowed in part. Conviction of the second petitioner/second accused in C.C.76/92 on the file of Judicial First Class Magistrate-II, Koyyayam for the offence under Section 324 read with Section 34 of Indian Penal Code is confirmed. Sentence is modified. In supersession of the sentence awarded by the learned Magistrate and confirmed CRRP 229/02 10 by learned Sessions Judge, second petitioner is sentenced to imprisonment till rising of court and compensation of Rs,15,000/- (Rupees Fifteen thousand only) and in default simple imprisonment for one month. Second petitioner is directed to appear before the Judicial First Class Magistrate-II, Kottayam on 30/8/2010. Learned Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.