IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 Crl.Rev.Pet.No. 1448 of 2002 ---------------------------------------------- CRA.419/2000 of ADDL. SESSIONS (ADHOC-II), COURT, ERNAKULAM CC.181/1997 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER/APPELLANT/ACCUSED: PHILIP @ FELIX, S/O. JOSEPH, MOONANJILIKKAL VEETTIL, KARTHEDOM, MALIPURAM P.O., ELANKUNNAPPUZHA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENTS/RESPONDENT/COMPLAINANT: 1. ASST.SUB INSPECTOR OF POLICE, NARAKKAL (CR.NO.213/96). 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R3. MRS.MARGARAT, AGED 59 YEARS, W/O LATE JOSEPH, RESIDING AT 469, KARTHEDATHU, 15, ELAMKUNNAPUZHA. Impleaded as per order dt. 17.6.2010 in Crl.M.A.2839/2010 BY PUBLIC PROSECUTOR SRI.P.A.SLIM FOR R1 & R2 ADV. SRI.V.K.VEERAVUNNY FOR ADDL.R3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.8097/2002 IN CRRP 1448/2002 DISMISSED 17.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1448 of 2002 -------------------------- ORDER Petitioner was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.5,000/- for the offence under Section 326 of Indian Penal Code by Judicial First Class Magistrate-I, Kochi in C.C.No.181/1997. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No.419/2000. Learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. During the pendency of the revision, the defacto complainant, the injured, died. Petitioner impleaded the widow of the deceased defacto complainant, as additional third respondent. She filed an affidavit to the effect that there has been a settlement with the petitioner and CRRP 1448/02 2 therefore, there is no objection for acquitting the accused. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Argument of the learned counsel is that the incident was on 24.7.1996 at about 7.45 p.m. and though the prosecution would allege that PWs 2 and 3 are eye witnesses as disclosed by PW1, the injured, in Exhibit P1 F.I. Statement, when they were examined, PWs 2 and 3 deposed that they did not witness the incident and they reached the spot only subsequently and they found PW1 lying on the road. It is argued that there is only the solitary evidence of PW1 to show that he sustained injuries in the hands of the petitioner and the solitary interested version should not have been accepted. Learned counsel argued that even if the evidence of PW1 is believable, there is no evidence to prove that grievous hurt was caused, as evidenced by Exhibit P2 wound certificate, by beating with a CRRP 1448/02 3 stick and the evidence of PW4, the Doctor, would establish that those injuries could be caused due to a fall and the injuries were caused when PW1 was proceeding in a motor cycle, after consuming liquor and had fallen and therefore, the conviction is not sustainable. Learned counsel would also argue that in any case, when the weapon was not recovered and there is no evidence to prove that the stick is a dangerous weapon, conviction of the petitioner for the offence under Section 326 of Indian Penal Code is illegal. 5. Learned Public Prosecutor pointed out that both the trial court and the appellate court analysed the evidence and found the evidence of PW1 trustworthy and reliable and the evidence of PW1 establishes that he sustained injuries when he was beaten with a stick, which is proved to be a dangerous weapon and therefore, the conviction is perfectly legal. CRRP 1448/02 4 6. Though PWs 2 and 3, who are named even in Exhibit P1 F.I. Statement, turned hostile to the prosecution, that does not mean that evidence of PW1 is to be discarded. PW1 was examined by the Doctor and Exhibit P2 wound certificate was prepared at 9.30 p.m. on 24.7.1996 itself. In Exhibit P2 wound certificate also, PW1 had named petitioner, as the person who inflicted the injuries and that he sustained the injuries at 7.45 p.m. when petitioner beat him with a stick. When Exhibit P1 F.I. Statement was taken at 2.45 p.m. on the next day, PW1 had given the details of the incident, which is in consonance with his evidence from the box. Though learned counsel argued that the solitary uncorroborated evidence of PW1 may not be accepted, on going through the evidence of PW1, especially in the light of his version in Exhibit P1 F.I. Statement as well as made to the Doctor immediately after the incident, I find no reason to disbelieve the evidence of PW1, which was accepted CRRP 1448/02 5 by the courts below. Evidence of PW1 establishes that he was proceeding in a motor cycle on that night and while so, petitioner, all of a sudden, jumped to the road and attacked him with a stick and PW1 sustained injuries. 7. But, the question is whether there is evidence to prove that grievous hurt was caused with a dangerous weapon. The weapon was not recovered. But, even in Exhibit P1 F.I. Statement, PW1 had given a description of the weapon. The only difference is that in Exhibit P1 the version is that it is a wooden stick, but, from the box, PW1 deposed that it is a bamboo stick. Whether it is a bamboo stick or a wooden stick, from the description of the weapon given by PW1, it is clear that it is a dangerous weapon, if used as a weapon of offence, is likely to cause death. But, the crucial question is whether the injuries found on PW1 by the Doctor and recorded in Exhibit P2 wound certificate are proved to be the injuries inflicted CRRP 1448/02 6 by beating with a stick. The injuries recorded in Exhibit P2 wound certificate are a lacerated wound on the scalp on the left parietal area, a lacerated wound on the occipital area, abrasion on the scalp, deformity with fracture to the middle of the left leg, swelling and abrasion on the doorsum of the right foot and abrasion on both knees. Exhibit P2 wound certificate also shows that X-ray revealed that there is communited fracture to the upper middle tibia as well as fracture to the right toe. The Doctor, who examined PW1 and prepared Exhibit P2 wound certificate, was not available for examination. Instead PW4, who is conversant with the signature of the Doctor, was examined. Though PW4 deposed that the Doctor who examined PW1 had opined that the injuries could be caused by beating with a stick, in cross-examination, PW4 deposed that those injuries could be caused even by a fall while going in a motor cycle. If that be so, it is possible that while PW1 was proceeding in a motor CRRP 1448/02 7 cycle, petitioner, all of a sudden, jumped to the road with a stick and when petitioner had beaten him with a stick, PW1 had fallen from the motor cycle and as a result, sustained the fracture. When the evidence of PW4, the Doctor, establishes that the fracture could be caused by such a fall, that possibility cannot be ruled out. If that be so, it cannot be said that the fracture to the tibia or to the toe sustained by PW1 were caused by beating with a stick, as it could have been caused by a fall also. In such circumstances, conviction of the petitioner for the offence under Section 326 of Indian Penal Code is not sustainable. But, the evidence establishes that petitioner voluntarily caused hurt to PW1 using a stick, which is a dangerous weapon. As it is proved that petitioner, by his act, voluntarily caused hurt to PW1 with a dangerous weapon, he is liable to be punished for the offence under Section 325 of Indian Penal Code. CRRP 1448/02 8 8. Learned counsel appearing for the petitioner submitted that though the injured is no more, the widow has filed an affidavit stating that offence has been compounded and hence, leave may be granted to compound the offence. 9. An offence under Section 325 of Indian Penal Code is compoundable with the leave of the court by the person to whom the hurt is caused. Under sub- section 4(b) of Section 320 of Code of Criminal Procedure, when the person, who would otherwise be competent to compound an offence, is dead, his legal representative, as defined in the Code of Civil Procedure, may, with the consent of the Court, compound such offence. Third respondent is the widow, who is the legal representative of the deceased injured in this case. The affidavit filed by the widow establishes that due to the intervention of mediators, there has been a settlement of the disputes between the parties. In such circumstances, leave is granted to compound CRRP 1448/02 9 the offence. Revision is disposed compounding the offence under Section 325 of Indian Penal Code, granting leave to the widow of the deceased injured PW1 to compound the offence after setting aside the conviction for the offence under Section 326 of Indian Penal Code by the learned Sessions Judge and finding that the offence attracted is only one under Section 325 of Indian Penal Code. 17th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1448/02 10 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1448 of 2002 -------------------------- ORDER 21st June, 2010