IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 Crl.Rev.Pet.No. 2694 of 2003(C) ------------------------------- CRA.61/2002 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CC.910/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... REVN. PETITIONER/ PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- SEKHAR, S/O. RAJ, SEMINTHIKKANAL BHAGOM, GYAP BHAGOM, BAISON VALLEY VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT/ COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.99 OF 1993, SANTHANPARA POLICE STATION) PUBLIC PROSECUTOR SRI.D.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN.J ------------------------------------- Crl.R.P.NO. 2694 OF 2003 -------------------------------------- Dated this the 12th day of March, 2010. O R D E R The Judicial Magistrate of the First Class, Nedumkandam in C.C No.910 of 1995 convicted the revision petitioner for offence under Section 326 IPC and sentenced to Rigorous Imprisonment for 3 years and a fine of Rs.5,000/-. Though he preferred Crl.Appeal No.61 of 2002 before the Sessions Judge, Thodupuzha he was not successful. Now this revision petition. 2. The Sub Inspector of Police , Santhanpara Police Station in Crime No.99 of 1993 filed the charge sheet against the revision petitioner alleging the above offence with an allegation that at about 12.30 p.m on 10.6.93 at Chinnakkanal Panchayath, the revision petitioner voluntarily inflicted cut injuries on PW2, who was the then Panchayath President, with MO1 chopper. As a result, the left heel of the victim was amputated. 3. Soon after the occurrence, PW1 and others gathered to rescue. Revision petitioner took to his heels. PW2 was first taken to Tata Tea General Hospital at Munnar wherein PW8, who issued Crl.R.P.NO. 2694 OF 2003 2 Ext.P6 wound certificate, was the Medical Officer. PW8, after giving first aid referred PW2 to a major hospital. Accordingly PW2 was brought to City Hospital, Ernakulam wherein PW10, who issued Ext.P7 discharge certificate, was working as Orthopaedic Surgeon. 4. PW1 gave Ext.P1 First Information Statement on the basis of hearsay information. PW6, a Head Constable attached to Santhapmpara Police Station recorded Ext.P1 and registered the case as Crime No.99/93 for offence under Section 324 IPC by Ext.P3 First Information Report. PW7, the Asst. Sub Inspector of Police conducted the investigation. During the course of investigation, offence under Section 326 IPC was revealed out. To that effect, Ext.P5 report was filed. After completing the investigation, the Sub Inspector of Police filed the charge sheet for offence under Section 326 IPC. 5. The learned Magistrate, after hearing the prosecution and the revision petitioner, framed charge for offence under Section 326 IPC to which the revision petitioner pleaded not guilty when it was read over and explained. Hence he was sent for trial. On the side of the prosecution, PWs 1 to 10 were examined. Ext.P1 to P8 and MO1 were marked. The revision petitioner took a plea of total denial. No Crl.R.P.NO. 2694 OF 2003 3 defence evidence was let in. 6. PW2, the victim had deposed that while he was returning from the Chinnakanal Village Office the revision petitioner suddenly rushed to him and intimidated at chopper point. PW2, while attempting to escape started to climb the steps of the house of Andi, the revision petitioner cut at his left heel and he was pulled back at his collar. When he fell down the revision petitioner again inflicted two or three cut injuries at his right leg below knee. PW2 was taken to the Tata Tea General Hospital at Munnar and from there to City Hospital, Ernakulam where he had undergone further treatment. 7. PW4 and 5 had given evidence, supporting the evidence given by PW2. Though PWs 2, 4 and 5 were subject to aggressive cross examination, no material was disclosed to disbelieve them. It was even suggested to PW4 that she was the concubine of PW2 and she was a lady with loose morals. Such suggestion was made without supporting material. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner had no case that PWs. 4 and 5 were anyway ill motivated so as to implicate the revision petitioner with a grave offence like the one on hand. The courts below had rightly appreciated the evidence of PW2 ,PW4 and Crl.R.P.NO. 2694 OF 2003 4 PW5 and correctly arrived a finding of fact regarding the offence alleged. As regards the inflicting cut injuries on PW2, the evidence of PW4 and PW5 corroborate with the evidence of PW2 in material particulars. 8. Ext.P6 issued by PW8 would show that PW8 had skin deep laceration middle of the right shin, 2 X 1 cm and amputation of back of left heel exposing the bone with a raw area. The wound on the shin was sutured and PW2 was referred to City Hospital, Ernakulam for expert treatment. Ext.P7 issued by PW10 would show that PW2 had a cut injury at the achilles tendon at its attachment to the calcanium with loss of posterior aspect of the calcanium with its attached soft tissue including skin. He was managed by debridement of tendoachilles to the calcanium with stainless steel wire and split thickness skin grafting to cover the wound. The evidence of PW8 and 10 supported by Ext.P6 and P7 remain unchallenged, the grievous hurt sustained to PW2 is well established. Though there are some minor discrepancies in the evidence of PW2, 4 and 5 through which the learned counsel for the revision petitioner had taken me, I find that those discrepancies are the discrepancies of truth and nothing to disbelieve them and I don't find any reason to Crl.R.P.NO. 2694 OF 2003 5 interfere with the fact finding of the courts below. The learned counsel for the revision petitioner argued that though MO1 chopper was produced by the prosecution, there is no evidence brought out to show that as to from where MO1 was produced. It was also argued by the learned counsel that there is no recovery of the weapon from the possession of the revision petitioner. In the light of the crystal clear evidence of PW2 , 4 and 5, I find that even if there is some gap or lacunae in the evidence regarding the seizure of MO1 chopper, it is not at all a reason to reject the prosecution case. Such being the materials on record, I find that the evidence on record was correctly appreciated by the courts below and rightly arrived a finding of guilty. Conviction for offence under Section 326 IPC is based upon cogent evidence. I find no reason to interfere with the same. 9. As regards the sentence, the learned counsel for the revision petitioner submitted that as on the date of occurrence, the revision petitioner was aged 48 years and now 17 years had elapsed and in that background the sentence awarded by the trial court as confirmed in appeal, requires interference and reduction. Referring to the nature of injuries sustained to PW2, learned Government Crl.R.P.NO. 2694 OF 2003 6 Pleader submitted that this is a calculated crime and that PW2 was so brutally assaulted and no interference in the sentence is warranted. Though primafacie, I find merit in the submission made by the Government Pleader, I find that this is a fit case in which the injured is to be suitably compensated and for that a modification of the sentence is warranted. PW2 had to be hospitalized from 10.6.93 to 29.6.93 and thereafter from 21.7.93 to 25.7.93 and then from 5.8.83 to 1.9.93, when he was discharged on request. Nature of injury would show that PW2 has to undergo life long suffering. Taking into account of all circumstances, I find that Rigorous Imprisonment for a period of one year with a direction to the revision petitioner to pay a sum of Rs.1,00,000/- as compensation to PW2 would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to Rigorous Imprisonment for one year with direction to pay Rs.1,00,000/- (Rupees One lakh only) as compensation to PW2 u/S.357(3) of the Code of Criminal Procedure. In the event of default to pay a compensation, the revision petitioner shall undergo Simple Imprisonment for a further period of two years. The revision petitioner Crl.R.P.NO. 2694 OF 2003 7 is granted 3 months time to remit the compensation. The revision petitioner is entitled to set off under Section 428 of the Code of Criminal Procedure, in the event he had undergone under trial imprisonment. P.S.GOPINATHAN,JUDGE. pm