IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.Rev.Pet.No. 1428 of 2001() ------------------------------ CRA.408/2001 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.993/1996 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): --------------------- SUNILKUMAR, S/O.KUMARAN MANAKKADAVIL VEEDU EROOR NORTH ERNAKULAM BY ADV. SRI.V.G.ARUN RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. CRL. R.P. NO. 1428 OF 2001 ORDER 10TH MARCH, 2010 P.S.GOPINATHAN, J. ``````````````````````````````````````````````````````` Crl. R.P. No. 1428 of 2001 B ``````````````````````````````````````````````````````` Dated this the 10th day of March, 2010 O R D E R Revision petitioner was convicted by the Additional Chief Judicial Magistrate, Ernakulam in C.C.No.993/1996 for offence under Sections 341 and 326 IPC and sentenced to simple imprisonment for three months and a fine of Rs.5,000/- with a default sentence of simple imprisonment for one month for offence under Section 326 IPC and to pay a fine of Rs.500/- with a default sentence of simple imprisonment for one week for offence under Section 341 IPC. A sum of Rs.1,000/- was ordered to be paid as compensation to PW1, who is the de facto complainant. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.Appeal No.408/2001 before the Sessions Judge, Ernakulam. The VIth Additional Sessions Judge, Ernakulam to whom the appeal was made over, by judgment dated 20-11-2001, dismissed the appeal whereby the conviction and sentence were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in Crl.R.P.1428/2001 : 2 : appeal, this revision petition was filed. 2. The Assistant Sub Inspector of Police, Hill Palace Police Station, in Crime No.37/1996, prosecuted the revision petitioner for the above offences, with an allegation that at 7.45 A.M. on 05-03-1996, the revision petitioner wrongfully restrained PW1, while he pedalling a bicycle through the road in front of the house of the revision petitioner and PW1 was beaten with hokey stick marked as MO1, which is a deadly weapon, and thereby caused grievous hurt to PW1. PW1 was immediately taken to the RCM Hospital, Thripunithura, from where intimation was sent to the Station House Officer, Hill Palace Police Station. A Head Constable, who was examined as PW8, proceeded to the hospital and recorded Ext.P1 First Information Statement given by PW1 and produced it before the Assistant Sub Inspector of Police, who was holding the charge of the Station. The Assistant Sub Inspector registered the case by Ext.P4 First Information Report for offence under Sections 341 and 324 IPC. The Assistant Sub Inspector proceeded the investigation and after completing the investigation, a charge sheet was filed alleging offence under Crl.R.P.1428/2001 : 3 : Sections 341 and 326 IPC. 3. Responding to the process, the revision petitioner appeared before the trial court. After hearing both parties, the learned Magistrate framed charge for the above said offences. Since the revision petitioner pleaded not guilty, he was sent for trial. In support of the prosecution, PWs 1 to 8 were examined. Exts.P1 to P4 and MO1 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence. No specific defence was advanced. No defence evidence was also let in. The learned Magistrate, on appraisal of the evidence, arrived at a conclusion of guilty following which the revision petitioner was convicted and sentenced as mentioned earlier. 4. PW2 is the wife of the injured and PW3 is an independent witness. Both of them were cited as witnesses to the occurrence. PW4 is a mahazar witness. PW5 is the medical officer, who issued Ext.P2 wound certificate. PW6 is said to be the owner of MO1 hokey stick. PW7 is the attestor to Ext.P3 seizure Crl.R.P.1428/2001 : 4 : mahazar. PW8 is the Head Constable, who recorded Ext.P1 First Information Statement given by PW1. Since the investigating officer was no more, he was not examined. Of the witnesses examined, PWs 3 and 4 turned hostile. 5. The above being the materials on record, now in support of the prosecution, there is the oral testimony of PWs 1 and 2. PW2 being the wife of PW1, is an interested witness. Their evidence is consistent that at 7.45 A.M. on 05-03-1996, while PW1 was proceeding to the work place by pedalling a bicycle, the revision petitioner, who is a neighbour, suddenly rushed to the road and beat PW1 with MO1 hokey stick after restraining him. PW1 was initially beaten at his leg. Since PW1 lifted his leg, the first three beat did not fall on PW1, but fell on the bicycle. Thereupon, the revision petitioner beat PW1 at his face as a result PW1 had sustained fracture of the mandible and bruised the lips. In all material particulars, the evidence of PW2 corroborates with PW1. There is no much challenge in cross examination regarding the occurrence spoken by PWs 1 and 2. The courts below had gone into the evidence of PWs 1 and 2 and rightly believed them. Crl.R.P.1428/2001 : 5 : The learned counsel for the revision petitioner could not point out any material to disbelieve these witnesses. The evidence of PWs 1 and 2 is materially corroborated by Ext.P1. Since PW2 is an interested witness, I had a critical scrutiny. I find no reason to reject the evidence of PWs 1 and 2 supported by Ext.P1. 6. PW5, the medical officer attached to RCM Hospital, Thripunithura, deposed that PW1 was brought to the hospital with injuries sustained and on examination, PW1 had swelling on the right mandible and lacerated wound on lower lip. X-ray revealed alveolar fracture of lower jaw. Ext.P2 is the wound certificate. It would corroborate with the evidence of PW5. In Ext.P2, mobility of three teeth was also noted. The evidence of PW5 regarding injuries sustained by PW1 was not at all challenged in cross examination. The evidence of PW5 supported by Ext.P2 would convincingly establish that PW1 had sustained grievous hurt. 7. MO1 is the hokey stick with which the revision petitioner inflicted injuries on PW1. The identity of the weapon deposed by PWs 1 and 2 was not at all challenged in cross examination. However, the learned counsel for the revision Crl.R.P.1428/2001 : 6 : petitioner vehemently argued that the very case of the prosecution is that MO1 was belonging to PW6 but he denied the ownership. It was also argued that MO1 was seized on the strength of Ext.P3 mahazar and that there was no proper recovery. Since the identity of MO1 deposed by PWs 1 and 2 was not challenged in cross examination, the contention advanced by the learned counsel for the revision petitioner is devoid of any merit even if MO1 hokey stick was not belonging to PW6 as alleged by the prosecution. That is not at all a reason to acquit the revision petitioner. The learned counsel further argued that MO1 could not be styled as a deadly weapon. Though a hokey stick is intended for playing hokey, by the nature of the same, it can be even used as a deadly weapon. The materials on record would show that by beating with hokey stick PW1 had sustained a grievous hurt. In the above circumstances, the contention advanced by the learned counsel that MO1 is not a deadly weapon is devoid of any merit. From the materials on record, I find that the courts below had rightly analysed the evidence and arrived at a conclusion that the revision petitioner wrongfully restrained PW1 while he pedalling bicycle Crl.R.P.1428/2001 : 7 : and he was inflicted grievous hurt by beating with MO1. The conviction for offence under Sections 341 and 326 IPC is based upon cogent evidence and requires no interference in exercise of revisional powers. 8. The revision petitioner was then aged 26 years. He was stated to be an Aluminium Fabrication worker at that time. The learned counsel for the revision petitioner would submit that now he is working as a cook under a catering agency and that he is married and having children and that the offence alleged occurred more than 14 years back and in these circumstances the revision petitioner is entitled to leniency in sentence. 9. Having due regard to the nature of the sentence awarded by the courts below, it is seen that the courts below had already given leniency. However, taking into account that the revision petitioner and the victim were neighbours and that there was no previous enmity and that the revision petitioner had been under the threat of the prosecution for the last 14 years, I find that a reformatary sentence rather than a harsh or vindicative sentence would be appropriate. I also feel that PW1 is to be duly Crl.R.P.1428/2001 : 8 : compensated for which modification of sentence is necessary and that a sentence of imprisonment till rising of court with direction to pay Rs.30,000/- as compensation to PW1 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 imprisonment till the rising of the court with direction to pay Rs.30,000/-(Rupees thirty thousand only) as compensation to PW1 under Section 357 (3) of the Code of Criminal Procedure. In default of payment of compensation, the revision petitioner shall undergo simple imprisonment for four months. The revision petitioner is granted one month's time to remit the compensation. Till then, the bail bond executed by him shall remain in force. In the event of remitting compensation, the same shall be disbursed to PW1. Sd/- (P.S.GOPINATHAN, JUDGE) aks // True Copy // P.A. To Judge