IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 Crl.Rev.Pet.No. 1077 of 2001 ------------------------------ CRA.251/1999 of SESSIONS COURT, KASARAGOD CC.433/1997 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED:- --------------------- URUMBAN, AGED 30 YEARS, S/O.LATE JOSEPH, PADUMOOLA HOUSE, UMBRANGALA VILLAGE, P.O.MOVVAR, KASARAGOD TALUK. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE SEBASTIAN RESPONDENT(S): RESPONDENT/RESPONDENT:- --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 1077 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9th October, 2009 O R D E R The revision petitioner is the accused in C.C.No.433 of 1997 of the Judicial Magistrate of the First Class, Kasaragod and the appellant in Crl.A.No.251 of 1999 of the Sessions Court, Kasaragod. He was convicted under section 324 IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for nine months. It is also directed that if the fine amount is realized, it shall be paid to the complainant as compensation under section 357(1) of the Code of Criminal Procedure. On appeal, the lower appellate court confirmed the conviction and reduced the sentence of imprisonment to rigorous imprisonment for six months. The sentence of fine was confirmed by the lower appellate court. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as shaped in evidence before the trial court, was that on April 21, 1997 at 7.30 P.M. the accused caused hurt to his brother PW1 by cutting with a “tholkathi”, a dangerous weapon, and thus committed offence under section 324 IPC. The accused on appearance before the trial court, pleaded not guilty of the charge under section 324 Crl.R.P. 1077/01 2 IPC. On the side of the prosecution, PWs.1 to 7 were examined and Exts.P1 to P4 were marked. When questioned under section 313, the accused denied the entire incident. No defence evidence was adduced. The trial court on an appreciation of the evidence found the revision petitioner guilty of the offence punishable under section 324 IPC, convicted him thereunder and sentenced as aforesaid. On appeal, the lower appellate court confirmed the conviction and modified the sentence as aforesaid. 3. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under section 324 of the Indian Penal Code by the trial court and confirmed by the lower appellate court can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive and unduly harsh ? 4. On the side of the prosecution PWs.1 to 7 were examined before the trial court. PW1 is the de facto complainant who is the brother of the accused. He testified in terms of the prosecution case. I have gone through the evidence of PW1. Nothing was brought out during his cross- examination to discredit his evidence. 5. The learned counsel for the revision petition submitted that PW1 was convicted in an abkari case and that therefore, his version cannot be relied on. There is no substance in the above contention. Merely because Crl.R.P. 1077/01 3 PW1 was an accused in an abkari case, his evidence cannot be brushed aside. Further nothing was brought out in his cross examination to discredit his evidence. It is argued by the learned counsel for the revision petitioner that the allegation was that the complainant was cut with a knife, but injury noted by the doctor in Ext.P3 wound certificate is only a lacerated wound and that therefore, version of PW1 cannot be relied on. I am unable to agree with the above contention. The doctor who examined the complainant testified that the injuries mentioned in Ext.P3 wound certificate would be caused by cutting with a knife. Therefore, the above argument advanced by the learned counsel for the revision petitioner cannot be accepted. 6. PW2, an eye witness, has turned hostile and did not support the prosecution case. PW5 who was also an eye witness has turned hostile to the prosecution and did not support the prosecution case. Even then I am of the view that the trial court as well as the lower appellate court was justified in believing the evidence of PW1 and holding that on April 21, 1997 the revision petitioner/accused assaulted the complainant and inflicted injuries as described in Ext.P3 wound certificate. That being so, the conviction of the revision petitioner under section 324 IPC by both the courts below has to be confirmed. Crl.R.P. 1077/01 4 7. As regards the sentence, the accused is now aged 32. Further the injured is the brother of the accused. The injury sustained is only a lacerated injury. Taking into consideration all these aspects, I feel that the sentence of imprisonment till rising of the court and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for one month would meet the ends of justice. 8. In the result, the revision is allowed in part. The conviction of the revision petitioner under section 324 IPC by both the courts below is upheld. The sentence is modified to the effect that the accused is sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for one month. The learned counsel for the revision petitioner submits that the complainant is no more. Therefore, no compensation is awarded. Two months' time is granted for payment of fine. The revision petitioner shall appear before the trial court on 29-10- 2009 to suffer the imprisonment. P.Q. BARKATH ALI, JUDGE mn