IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.Rev.Pet.No. 1014 of 2001() ------------------------------ CRA.46/1996 of SESSIONS COURT, WAYANAD. CC.62/1993 of JUDICIAL FIRST CLASS MAGISTRATE COURT, MANANTHAVADY. .................... REVN. PETITIONER(S): APPELLANT - ACCUSED --------------------- THANDEL BABY, THANDEL HOUSE, VELLAMUNDA P.O., MANANTHAVADY TALUK, VELLAMUNDA AMSOM DESOM, WAYANAD DISTRICT. BY ADV. SRI.S.M.PRASANTH SRI.V.A. MATHAI SRI.JAYASANKAR. K RESPONDENT(S): COMPLAINANT --------------- STATE, REP. BY THE SUB INSPECTOR OF POLICE, VELLAMUNDA (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 1014 of 2001 ------------------------------------------------------ Dated: DECEMBER 14, 2009 ORDER The revision petitioner is the accused in C.C. No.62/1993 of Judicial First Class Magistrate Court-I, Mananthavady, and the appellant in Crl.A.46/1996 of Sessions Court, Wayanad. He was convicted under secs.447 and 326 of IPC and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.3000/-, in default to undergo rigorous imprisonment for two months under sec.326 of IPC. No separate sentence was awarded under sec.447 of IPC. On appeal by the accused the learned Sessions Judge reduced the substantive sentence to rigorous imprisonment for two years and imposed a fine of Rs.2000/-, with a default sentence of one month. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as testified by PW.1/the de facto complainant before the trial court is that on November 17, 1992 at about 12°' clock in the night the accused trespassed into the courtyard of the house of PW.1, the de facto complainant and beat him with an axe handle, MO.1, on his right leg causing fracture of both bones below his right knee and that thereby committed an offence punishable under secs.447 and 326 of IPC. Crl.R.P. 1014/2001 2 3. The accused on appearance before the trial court pleaded not guilty to the charge under secs.447 and 326 of IPC. PWs.1 to 8 were examined and Exts.P1 to P4 and MO.1 were marked on the side of the prosecution. When questioned under sec.313 Cr.P.C. by the trial court, the accused denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offence punishable under secs.447 and 326 of IPC , convicted him thereunder and sentenced him as aforesaid. On appeal by the accused, the lower appellate court confirmed his conviction, but modified his sentence as aforesaid. The accused has now come up in revision challenging his conviction and sentence. 5. Heard counsel for the revision petitioner and the Public Prosecutor. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioner under secs.447 and 326 of IPC rendered by the trial court which is confirmed in appeal can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. PWs.1 to 8 were examined and Exts.P1 to P4 and MO.1 were marked on the side of the prosecution to prove the guilt of the accused. PW.1 is the de facto complainant. He testified in terms of Crl.R.P. 1014/2001 3 the F.I. Statement, Ext.P1. Pws.2 to 5 are the alleged eye-witnesses to the incident. They did not witness the incident. They turned hostile and did not support the prosecution. 8. PW.6 is the Head Constable who registered Ext.P2 FIR on the basis of Ext.P1 FI Statement. PW.7 is the Head Constable who conducted the investigation and prepared Ext.P3 scene mahazar. He took into custody MO.1 stick found at the place on the incident. Ext.P4 is the wound certificate of PW.1 issued by CW.8, the doctor. As he was not available, his wife who is also attached to the District Hospital, Mananthavady, was examined as PW.8. 9. Counsel for the revision petitioner argued that the trial court as well as the lower appellate court went wrong in accepting the uncorroborated testimony of PW.1. There is no substance in the above contention. Of course, there is only the evidence of PW.1 to prove the incident. PW.1 sustained corresponding injuries as seen from Ext.P4 wound certificate. Even though Pws.2 to 5, the alleged eye-witnesses, turned hostile and did not support the prosecution, the trial court found the evidence of PW.1 trustworthy and believed his evidence. Further, he has absolutely no motive to implicate the accused. No serious discrepancies were pointed out in his evidence to discredit his evidence. Therefore the trial court as well as the lower appellate court is justified in believing the evidence of PW.1. 10. Counsel for the revision petitioner argued that MO.1 stick Crl.R.P. 1014/2001 4 which was allegedly used by the accused to beat PW.1 is not an axe handle and therefore the version of PW.1 regarding the incident cannot be believed. There is no substance in the above contention. PW.1 in cross-examination submitted that MO.1 is not the stick by which he was beaten up by the accused . Further, it is in the night the accident occurred. Therefore merely because PW.1 did not identify the stick, his entire evidence cannot be discarded. For all these reasons I am inclined to hold that the trial court as well as the lower appellate court is perfectly justified in accepting the evidence of PW.1 and holding that the accused beat PW.1 with a stick and inflicted the injuries described in Ext.P4 wound certificate. 11. It is pertinent to note that PW.1 suffered a fracture of both bones of the right leg. Therefore the accused has committed an offence punishable under sec.326 of IPC. For the purpose of committing the said offence, he has trespassed into the courtyard of PW.1 which is an offence punishable under sec.447 of IPC. For all these reasons I am inclined to confirm the finding of the trial court which is confirmed in appeal that the accused has trespassed into the courtyard of PW.1 and beat him with an axe handle and inflicted on him the injuries described in Ext.P4 wound certificate. Thus the accused has committed an offence punishable under sec.447 of IPC. Crl.R.P. 1014/2001 5 Point No.II 12. As regards the sentence, counsel for the revision petitioner submitted that the accused is now laid up with chronic bronchitis. Further, the incident is of the year 1992 i.e. about 17 years back. Taking into consideration all these facts a lenient view is taken and I feel that a sentence of imprisonment for the period already undergone by him and a fine of Rs.10,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under secs.447 and 326 of IPC is confirmed. The substantive sentence imposed is reduced to the period of imprisonment already undergone by him i.e. from 3.12.1992 to 5.12.1992. He is also sentenced to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for one month. His bail bonds are cancelled. Two months time is granted for payment of fine. The fine amount, if realised, shall be paid to PW.1 as compensation as provided under sec.357(1) of Cr.P.C. CRL.M.P.4795 of 2001 Dismissed. P.Q. BARKATH ALI, JUDGE mt/-