IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.Rev.Pet.No. 2625 of 2003() ------------------------------ CRA.323/03 OF ADDL.SESSIONS COURT (ADHOC-I), ERNAKULAM C.C.387/00 OF Judicial First Class Magistrate-I, KOCHI REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SHALI, AGED 33, S/O. KRISHNANKUTTY, MURINGODITHARAVEETTIL HOUSE, EDAVANAKKAD, VYPIN. BY ADV. SRI.K.S.MADHUSOODANAN RESPONDENT(S): COMPLAINANTS: ---------------------------- 1. SUB INSPECTOR OF POLICE, NARAKKAL. 2. STATE OF KERALA TO BE REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.2625 OF 2003 --------------------------------------------- Dated 29th July, 2010 O R D E R Petitioner was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.3,000/- for the offence under Section 326 of Indian Penal Code by Judicial First Class Magistrate-I, Kochi in C.C.387/2000. Petitioner challenged the conviction and sentence before Sessions court, Ernakulam in Crl.A.323/2003. Learned Additional Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the CRRP 2625/03 2 revision petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that courts below did not appreciate the evidence in the proper perspective and material aspects were over looked. It is pointed out that when PW2, the injured was examined by the doctor PW9 at about 12.40 a.m on the date of the incident, PW2 disclosed to the doctor that he sustained injury from the house of PW1 at that desk and he sustained injury when he was attacked with a knife and in Ext.P1 FI statement, the version of PW1 is that the incident occurred on the lane in front of her house and injury was inflicted with a sword stick and in the police charge sheet as well as court charge it is alleged that petitioner inflicted injuries with a chopper and at the time of evidence MO.3 knife was identified as CRRP 2625/03 3 the weapon used for inflicting the injury and these contradictions have not been properly appreciated. It is argued that in the light of the evidence, when charge is different from the evidence, conviction is illegal. Learned counsel also argued that when according to the version in Ext.P4, incident occurred in the house of PW1 and that too at he desk, when there is no case that PW2 sustained injury from the lane at 9.30 p.m, their case should not have been believed and when the entire evidence is appreciated, it is clear that PW1 sustained injury from the hands of somebody else and not from the hands of the petitioner and identity was falsely imputed on the petitioner at the influence of the neighbours and in such circumstances, conviction is to be set aside. Learned counsel finally submitted that considering the fact that incident CRRP 2625/03 4 occurred eleven years earlier, leniency may be shown. 4. Learned Public Prosecutor submitted that evidence of PW2 corroborated by the evidence of PW1 and PW3 and the evidence of PW9 with Ext.P4 establish that PW2 sustained grievous hurt and evidence of Pws.1 to 3 establish that grievous hurt was voluntarily caused by the petitioner and in such circumstances, there is no reason to interfere with the conviction or the sentence. 5. Prosecution case is that PW2 along with his wife had gone to the house of PW1, as the husband of PW1 was in Gulf countries and PW2 and other brothers are looking after her affairs. It was during Ramzan days. It is the case of Pws.1 and 2 that PW2 and his wife reached the house of PW1 in the evening. After taking food they returned by 9.30 p.m. It is CRRP 2625/03 5 their case that when PW2 and his wife got out of the house and entered the lane, petitioner was found scolding the family members of PW1. It is the case of PW1 that even earlier petitioner had raised allegations against her daughter and due to that fact there was some enmity. When PW2 found the petitioner uttering allegations against PW1 and her daughters, he questioned the petitioner. It is the case of Pws.1 and 2 that at that time petitioner inflicted the injuries on PW2. 6. Fact that PW2 sustained injuries noted in Ext.P4 wound certificate by PW9 is not disputed. Evidence of PW9 with Ext.P4 wound certificate establish that PW2 sustained incised wound on the left elbow posteriorly exposing and fracture of lateral epicondyle of humerus with severe injury having 7x3.5x1 cm. There was an incised wound on the right elbow CRRP 2625/03 6 6x0.5x1 cm on lateral aspect with sign of fracture of olecranon underneath. X-ray showed that there was fracture. Evidence of PW9 is that the injuries noted in Ext.P4 could be caused with a weapon like MO.3. Evidence of PW9 with Ext.P4 conclusively establish that PW2 sustained grievous hurt on 26/12/1999 as deposed by Pws.1 and 2. 7. The only question is whether those injuries were inflicted by the petitioner and whether it was inflicted with a dangerous weapon. Learned counsel argued that though Pws.1 and 2 were cross examined at length, their evidence with regard to the identity of the petitioner should not have been accepted by the learned Magistrate. On going through the evidence, I cannot agree with the submission. True, in Ext.P4 wound certificate, the information furnished by PW2 on the alleged CRRP 2625/03 7 cause of injury does not disclose the name of the petitioner. Instead, it was recorded that assailant is a person is known by sight. But on that ground I cannot agree with the submission that identity of the petitioner is to be doubted. 8. Evidence of PW1 is that petitioner worked in the house of PW1 earlier. That aspect is stated by the petitioner also when he was questioned under Section 313 of Code of Criminal Procedure. Therefore, fact that petitioner is known to PW1 cannot be disputed. Evidence of PW1 is that petitioner had raised allegations against her daughter earlier and on that account she had questioned the petitioner. On that aspect there was no cross examination. Therefore, that incident is to be taken as proved. If that be so, there cannot be any dispute on the capacity of PW1 to identify the CRRP 2625/03 8 petitioner. Evidence of PW1 is that petitioner started scolding her and her daughters when PW2 got down from the house. Argument of the learned counsel is that evidence shows that there was a wall having six feet height though constructed with a plastic sheet and evidence of PW1 shows that if one does not enter out of the house, the incident cannot be seen from the house and it is to be found that PW1 cannot see the incident and therefore, her evidence as an eye witness is to be disbelieved. First of all PW1 was not asked whether she had gone out of house along with Pws.1 and 2 when they entered the lane from the house. Normally when brother- in-law along with his wife came to the house of PW1 and after taking food they returned, PW1 is excepted to accompany them till the lane. Evidence of Pws.1 and 2 is that by that time, petitioner was found scolding PW1 and her CRRP 2625/03 9 daughter and then petitioner intervened. In such circumstances, I find no reason to disbelieve the evidence of PW1 that she had witnessed the incident. Even otherwise when the genesis of the incident is the act of the petitioner scolding PW1, there cannot be any dispute with regard to the identity. Though PW2 did not mention the name of the petitioner to the doctor as it is seen not recorded in Ext.P4, I do not find it fatal. When PW2 was examined by the doctor at the hospital PW2 had no importance with regard to the name of the assailant as he wanted only treatment for the injuries. It might be that because of the situation at that time as he sustained grievous hurt, he did not name the assailant. On that ground, it is not possible to disbelieve the evidence of PW2. Added to this PW3 also had identified petitioner as person who inflicted CRRP 2625/03 10 injury on PW2. On appreciating the evidence of Pws.1 to 3, I find no reason to differ with the view taken by the learned Magistrate and the learned Sessions Judge. 9. When the injuries recorded in Ext.P4 wound certificate could be inflicted either with a dangerous weapon like a sword stick or knife, the discrepancy on the nature of the weapon used, is not fatal. True, there was some discrepancy, because in Ext.P4 wound certificate weapon mentioned is knife and in Ext.P1 FI statement weapon it is sword stick and in the charge it is chopper and at the time of evidence it is MO.1 knife, as stated in Ext.P4. But in the nature of the case, it is not very relevant as the evidence conclusively establish that injuries were inflicted by the petitioner. In such circumstances, I find no reason to interfere with the conviction of the CRRP 2625/03 11 petitioner for the offence under Section 326 of Indian Penal Code. 10. Then the only question is regarding the sentence. Argument of the learned counsel is that as the incident occurred in December, 1999 and due to time lag and considering the fact that petitioner belongs to a Scheduled Caste community, leniency is to be shown. I do not find that fact that the petitioner is a Scheduled Caste is a relevant aspect to decide the question of sentence. Considering the fact that the incident happened in 1999, on the facts and circumstances of the case, interest of justice will be met, if the sentence is reduced to rigorous imprisonment for one year. Revision is allowed in part. Conviction of the petitioner for the offence under Section 326 of Indian Penal Code is confirmed. Sentence is modified. In supersession of the sentence CRRP 2625/03 12 awarded by Judicial First Class Magistrate-I, Kochi as confirmed by Additional Sessions Judge, Ernakulam, petitioner is sentenced to rigorous imprisonment for one year and a fine of Rs.5,000/- (Rupees Five Thousand only) and in default simple imprisonment for two months. On realisation of fine, Rs.4,500/- (Rupees Four Thousand Five Hundred only) shall be paid to PW2 as compensation. If petitioner has deposited any portion of fine, he need only deposit the balance amount. Petitioner is directed to appear before Judicial First Class Magistrate-I, Kochi on 7/9/2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRRP 2625/03 13