IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 Crl.Rev.Pet.No. 2092 of 2009() ------------------------------ AGAINST JUDGMENT DTD 20.12.2008 IN CRA.434/2006 of ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC)-II, KOTTAYAM CC.111/2002 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ------------------------------------------------------ SCARIAH, S/O.KUTTAN, AGED 27 YEARS, VELLAMACKAL HOUSE, CHAMPAKKARA KARA, KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT. BY ADVS. MR.C.A.CHACKO MS.C.M.CHARISMA MR.N.A.SHAFEEK RESPONDENTS: RESPONDENT/COMPLAINANT AND STATE: --------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 2092 of 2009 --------------------------------------- Dated this 03rd day of July 2009 ORDER Petitioner faced trial in the court of learned Judicial First Class Magistrate, Kottayam in C.C.No.111 of 2002 for offences punishable under Sec.324 and 294 (b) of the Indian Penal Code (for short, “the Code”). Case is that on 26-12-01 at about 4.30p.m he attacked PW1 and voluntarily caused hurt to him by hitting with stone on the face. Prosecution examined PWs.1 to 6 and proved Exts.P1 to P5. Learned magistrate acquitted petitioner of the charges under Sec.294(b) but convicted him under Sec.324 of the Code. He was sentenced to undergo simple imprisonment for one year. Learned Additional Sessions Judge dismissed the appeal. It is contented by learned counsel that conviction of petitioner under Sec.324 of the Code is not sustainable. Evidence of prosecution is unreliable. There is unexplained delay in giving first information regarding the alleged incident. 2. PW6 examined PW1, the victim on the day of incident at 5 p.m (i.e about ½ an hour after the incident) and found lacerated injury on the right eyebrow and contused abrasion on right side of nose. PW1 came with the history that he was assaulted at 5 p.m. PW1 gave evidence that on the relevant day, time and place petitioner slapped him on the face, collected a stone and hit on his face. PWs.2 Crl.R.P.No.2092 of 2009 2 to 4 were examined to prove the incident but they did not support the prosecution. PW5, Head Constable recorded the statement of PW1 (Ext.P1) at the hospital were PW1 was undergoing treatment, on 28-12-01 and registered the case. Ext.P4 is the mahazar for the scene of occurrence. 3. It is true that PWs.2 to 4 did not support the prosecution but that is not due to any fault of PW1. He has given evidence regarding the incident. That, PWs.2 to 4 did not support is not a ground to disbelieve the evidence of PW1 if it is otherwise acceptable. The delay in giving first information regarding the incident is because PW1 was undergoing treatment in the hospital and the police who got intimation from the hospital reached there only on 28-12-01. Evidence of PW.6 and Ext.P2 show that immediately after the incident, PW1 had told PW6 that he sustained injury due to assault. Evidence of PW6 and Ext.P2 corroborated the evidence of PW1. I find no reason to interfere with the conviction of petitioner under Sec.324 of the Code. 4. Learned counsel submitted that petitioner has been taken to custody on 19-06-09 and since then, is undergoing imprisonment. Learned counsel requested that leniency may be shown to the petitioner. 5. There is no case or evidence that petitioner had gone to the scene of occurrence carrying the stone. The stone was picked up at the Crl.R.P.No.2092 of 2009 3 scene of occurrence. The size of the stone is not available in evidence. Petitioner is not shown to be involved in any other case. Learned counsel submits that petitioner is now aged 24 years. In these circumstances I am satisfied that imprisonment already undergone by petitioner is sufficient so far as substantive sentence is concerned. At the same time, PW1 who suffered injury at the hands of petitioner cannot be forgotten. He has to be compensated. Hence the sentence can be modified and confined to the period of imprisonment already undergone and fine of Rs.3500/- out of which Rs.2500/- will be given to PW1 as compensation. Resultantly this revision is allowed in part to the following extent: The sentence awarded to the petitioner is modified as below, (i) The substantive sentence awarded to the petitioner is modified and confined to the period of imprisonment he has already undergone. (ii) Petitioner is sentenced to pay fine of Rs.3500/- (Rupees Three Thousand Five Hundred Only). He is granted two months' time from this day to pay the fine. In case of default, he shall undergo simple imprisonment for one month. (iii) Out of the fine if realised, Rs.2500/- (Rupees Two Thousand Five Hundred Only) shall be given to PW1 as compensation. (iv) petitioner shall be released from the jail forthwith if not Crl.R.P.No.2092 of 2009 4 required to be detained otherwise. (v) In case petitioner fails to deposit the fine within the time stated, he shall appear in the trial court on 07-09-09 to receive the default sentence. THOMAS P JOSEPH, JUDGE Sbna/