IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 Crl.Rev.Pet.No. 2154 of 2003 ----------------------------------------------- CRA.85/1993 of ADDL. SESSIONS COURT (ADHOC-II), PATHANAMTHITTA CC.475/1990 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... REVN. PETITIONER/ACCUSED: ANANDAN, KIZHAKKEKARA VEEDU, MANDIRA, RANNY (KOLLAPANICKARAN, IN FRONT OF LAHA ESTATE FACTORY, PARUNADU MURI, PERUNADU VILLAGE. BY ADV. SMT.K.S.SAIRA SMT.RANJINI RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.2154 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.475/1993 on the file of Judicial First Class Magistrate's Court, Ranny, filed this revision challenging the concurrent conviction and sentence for the offence under Section 326 of Indian Penal Code. Prosecution case is that on 17.4.1990 at about 11.30 p.m., PW2, the injured, while proceeding towards his house, found the petitioner standing and flashed his torch light on the face of the petitioner, which was not liked by the petitioner. Petitioner, with a sword stick, cut on the nose of PW2 and thereby caused fracture of maxilla and committed an offence under Section 326 of Indian Penal Code. PW2 was taken to PW4, the doctor, who examined him and prepared Exhibit P3 wound certificate and referred PW2 to Medical College Hospital, Kottayam. PW5, the Assistant Professor of ENT, Medical College CRRP 2154/03 2 Hospital, Kottayam, treated PW2 and issued Exhibit P4 discharge certificate after treating him as an inpatient from 18.4.1990 to 30.4.1990. Exhibit P2 F.I. Statement of PW2 was recorded on 19.4.1990 at 3 p.m. and based on Exhibit P2, Crime No.58/1990 was registered under Sections 324 and 325 of Indian Penal Code. After completing the investigation, charge was laid for the offence under Section 326 of Indian Penal Code, which was taken cognizance by the learned Magistrate. Petitioner pleaded not guilty. 2. Prosecution examined PWs 1 to 5 and marked Exhibits P1 to P4. On the side of the petitioner, Dws 1 and 2 were examined and Exhibit D1 wound certificate was marked. 3. Learned Magistrate, on the evidence, found the petitioner guilty and convicted and sentenced him to simple imprisonment for two years for the offence under Section 326 of Indian Penal Code. Petitioner challenged the conviction and sentence CRRP 2154/03 3 before Sessions Court, Pathanamthitta in Crl.A.No. 85/1993. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction but modified the sentence to simple imprisonment for six months. This revision is filed challenging the conviction and sentence. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. Argument of the learned counsel is that courts below should not have accepted the evidence of PW2 in the light of the contradictions in Exhibit P2 F.I. Statement. It was argued that evidence of PW3 should not have been relied on, as his presence was not mentioned by PW2 in Exhibit P2 F.I. Statement and based on the solitary evidence of PW2, petitioner should not have been convicted when Gopalakrishnan, the other eye witness, was not examined. It was argued that on the evidence, prosecution did not conclusively establish that PW2 sustained injuries in the hands of the petitioner CRRP 2154/03 4 as alleged. 6. Learned Public Prosecutor submitted that courts below properly appreciated the evidence and there is no reason to interfere with the conviction. The fact that PW2 sustained injuries on the night of 17.4.1990 was not disputed at the time of evidence. Exhibit P3 wound certificate, prepared by PW4, with the evidence of PW4, establish that PW2 was examined by the doctor and the doctor prepared Exhibit P3 wound certificate. It is proved that when PW4 examined PW2, PW2 was having an incised wound through the middle of the nose horizontally placed 4 x 2 x 2 cm. The doctor examined him at 2 a.m. The alleged cause of injury disclosed to PW4 was by cutting. Evidence of PW5 with Exhibit P4 discharge certificate establish that as PW2 was referred to Medical College Hospital by PW4 and PW2 was taken to Medical College Hospital, Kottayam and was treated by PW5, the Assistant Professor of ENT. He was admitted as CRRP 2154/03 5 an inpatient on 18.4.1990 and was discharged only on 30.4.1990. Evidence of PW5 with Exhibit P4 discharge certificate establish that PW2 sustained fracture of maxilla. It is conclusively established that PW2 sustained grievous hurt on the night of 17.4.1990. 7. The only question is whether the injury was inflicted by the petitioner as alleged by the prosecution or when a protruding wooden article, being carried in a vehicle, hit on PW2 while he was walking along the road. PW1, who is named as an eye witness, turned hostile to the prosecution and denied the prosecution case that he witnessed the incident. PW3 is the nephew of PW2. He was examined claiming that he was also an eye witness. Learned Magistrate and learned Additional Sessions Judge relied on the evidence of PW3. 8. I have scanned the evidence of PW3. On a proper appreciation of the evidence of PW3, I cannot agree with the finding of the courts below CRRP 2154/03 6 that PW3 was an eye witness. First of all, if PW3, the nephew, was present at the scene of occurrence, PW2 would have definitely disclosed the presence of PW3 in Exhibit P2 F.I. Statement, especially when, he had stated in Exhibit P2 that PW1 and others were present. If the nephew was there, accompanying PW2, as claimed by PWs 2 and 3, that fact would have definitely stated in Exhibit P2. Moreover, the contradictions in the evidence of PW3, which was brought out, establish that his evidence is not credible or trustworthy. Therefore, against the finding of the courts below, it can only be found that PW3 was not an eye witness. 9. The only evidence is that of PW2. There is no rule or law that solitary evidence of an injured witness, uncorroborated by another witness, is not sufficient to enter a conviction. If his evidence is credible, trustworthy and reliable, it is sufficient to enter a conviction. The question is whether the evidence of PW2 is credible, CRRP 2154/03 7 trustworthy and reliable. I have gone through the evidence of PW2 minutely with reference to his version in Exhibit P2. There is no material contradictions in the versions of PW2 from the box and what was disclosed in Exhibit P2 F.I. Statement, except the presence of PW3 at the scene of occurrence. It may be that presence of PW3 was subsequently added to strengthen the prosecution case. That is not a reason to disbelieve his version on other aspects. As stated earlier, evidence of PWs 4 and 5 with Exhibits P3 and P4 establish that PW2 sustained grievous hurt. Evidence of PW2, which is found credible and reliable, establishes that the said injury was inflicted by the petitioner. Though it was contended by the petitioner that he was not at the scene of occurrence, claiming that he was being treated as an inpatient, evidence do not support the plea of alibi. Exhibit D1, with the evidence of DW1, the doctor, would only establish that CRRP 2154/03 8 petitioner sustained dislocation of proximal interphalgical joint of left second toe and abrasion on the left knee on 5.4.1990 at about 4.30 p.m. and was admitted as an inpatient. Exhibit D1 does not show when petitioner was discharged from the hospital or on the night of 17.4.1990, he was in the hospital. DW2 was also examined. His evidence also does not show that petitioner was in the hospital on the night of 17.4.1990. In such circumstances, the plea of alibi was rightly not accepted by the learned Magistrate. Though DW1 was examined to prove that petitioner sustained injuries when a protruding part of an article being transported in a lorry, hit on the face of the petitioner, evidence of DW1 establishes that he has no personal knowledge as to how PW2 sustained the injury. Evidence of DW1 will not help the petitioner. 10. As stated earlier, the credible and reliable evidence of PW2 establishes that he CRRP 2154/03 9 sustained grievous hurt when he was attacked by the petitioner with a sword stick, a dangerous weapon. In such circumstances, conviction of the petitioner for the offence under Section 326 of Indian Penal Code is perfectly legal. 11. Then the only question is regarding the sentence. Though learned Magistrate awarded a sentence of simple imprisonment for two years, learned Additional Sessions Judge took a very lenient view and modified the sentence to simple imprisonment for six months. Considering the nature of the offences, I find the substantive sentence of simple imprisonment for six months is reasonable and does not warrant interference. Revision, therefore, fails and it is dismissed. Petitioner is directed to appear before Judicial First Class Magistrate, Ranny on 31.08.2010. The Magistrate is directed to execute the sentence. 10th August, 2010 (M.Sasidharan Nambiar, Judge) tkv