IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 24TH APRIL 2009 / 4TH VAISAKHA 1931 Crl.Rev.Pet.No. 8 of 2002() --------------------------- CRA.348/1996 of FIRST ADDL. SESSIONS COURT, TRIVANDRUM CC.726/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.2 ------------------------------------------- SIDHARDHAN S/O.RAGHAVAN,THEKKEPPANA VEEDU,THEVALAKKADU,THOTTAKKADU DESOM, KARAVARUM VILLAGE. BY ADV. SRI.T.M.ABDUL LATHIFF SRI.A.MOHAMED RASHEED RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON 24/04/2009 PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J ---------------------------------- CRL.R.P.No. 8 OF 2002 -------------------------------------- Dated this the 24th day of April, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/2nd accused (A2) for the offence under Section 324 IPC. He was prosecuted with two others for offences under Sections 326 and 324 r/w 34 IPC on a report filed by the Sub Inspector of Police, Kallambalam Police Station. The 1st accused A1 was not available for trial and hence splitting up the case against him, the trial proceeded in respect of A2 and A3. Both of them had pleaded not guilty to the offences. The learned Magistrate after trial found the revision petitioner A2 guilty of the offence under Section 324 IPC and convicted him thereunder. He was sentenced to pay a fine of Rs. 4,000/- which he realised was ordered to be paid at the rate of Rs. 1,500/- to PW1 and Rs. 1,000/- each to PWs. 2 and 4, the injured in the case as compensation under Section 357(3) of the Crl.P.C. He was acquitted of the offence under Section 326 of the IPC. A3 was found not guilty of both the offences charged and he was acquitted. Crl.R.P. 8/2002 -2- 2. The appeal preferred by A2 challenging his conviction was unsuccessful, and the Sessions Judge confirmed and upheld the conviction and also the sentence without any modification. Questioning the legality, propriety and correctness of the conviction and sentence as concurrently held by two courts below, A2 has preferred this revision. 3. The gist of the prosecution case is that A3, the father, and his two sons, A1 and A2, had conjointly assaulted and caused injuries to PW2, his wife (PW1) and his son PW4, living the neighbourhood on the evening of 23.9.1994 at a spot situate within the residential compound of the injured. A2 is alleged to have assaulted all the three injured striking them with a deadly weapon, a bamboo stick, and caused them injuries, with one of them (PW4) sustaining a fracture of the condyle of his left thumb. The case imputed against A3 was that he caught hold of PW2 and held him tightly enabling his son A2 to attack him with the bamboo stick, and that of A1, the absconding accused, of pelting a stone at PW1 causing her an injury on her lower lip. The incident arose pursuant to an altercation between PW2 and A3 Crl.R.P. 8/2002 -3- when the former is stated to have protested and questioned the latter for cutting grass from his residential compound. Soon after the incident the injured went over to the police station. Recording the statement of PW1 a crime was registered for the offence under Section 324 r/w 34 IPC, and thereafter with requisition from the station the injured went over to hospital and underwent treatment for the injuries sustained. The investigation of the crime disclosed that PW4 had suffered a fracture among other injuries. After its completion charge was laid against the accused (A1 to A3) indicting them of the offences under Section 324 and 326 r/w 34 IPC. 4. A2 and A3 alone entered appearance and faced trial. Both of them pleaded not guilty when the particulars of the charge framed were made known. Prosecution examined PW1 to PW10, get marked Exts. P1 to P9 and identified MO1 to prove its case. Both the accused A2 and A3 maintained their innocence when questioned under Section 313 of the Crl.P.C. A2 further canvassed a defence of alibi contending that on the evening of 23.9.1994, at the time of occurrence, as a member of a director Crl.R.P. 8/2002 -4- board of a society he was participating in its board meeting and he returned to his home much later in the night. To substantiate the plea of alibi so canvassed A2 examined four witnesses as DW1 to DW4. The learned Magistrate after appreciating the materials produced found A2 guilty of the offence under Section 324 of the IPC. Her plea of alibi was found unworthy of any merit. A2 was convicted and sentenced as indicated earlier for the offence under Section 324 of the IPC, which was confirmed in appeal by the Sessions Judge after reviewing the evidence tendered in the case. 5. I heard the learned counsel for the revision petitioner/A2 and also the learned Public Prosecutor. The learned counsel for the revision petitioner assailed the concurrent finding of the two courts below holding A2 culpable of assaulting PWs1, 2 and 4 with a bamboo stick and causing them injuries. The evidence of two independent witnesses PW3 and PW5 have been found unacceptable by the court below is highlighted by the counsel canvassing an argument that the reliance placed on the interested testimony of the injured witness especially where the Crl.R.P. 8/2002 -5- parties are shown to be at logger heads long before the occurrence was not justified in the given facts of the case. There is a serious and material discrepancy in the P1 statement given by PW1 with reference to her evidence as in the former statement given immediately after the occurrence she had stated that one Vikraman assaulted her, PW2 and PW4 with the bamboo stick. The name of the A2 is different from that of the assailant referred to above is pointed out to attack her evidence. Submitted that the conviction of the revision petitioner/A2 is not supported by legal evidence the learned counsel, in the alternative, pleaded for altering the sentence, if for any reason the conviction is found sustainable, and to release the petitioner on probation provisions invoking the benevolent of provisions of the Probation of Offenders Act. The petitioner is now employed as a secretary in a society and he is likely to lose his job if the sentence imposed is not altered as prayed for in the submission of the counsel for releasing him on probation. 6. I have perused the records of the case giving consideration to the submissions made by the counsel. Needless Crl.R.P. 8/2002 -6- to point out that revisional jurisdiction is supervisory or paternal intended to avoid failure of justice. Review of the evidence to examine the correctness of the finding of the inferior courts is normally not possible in the exercise of revisional jurisdiction as such a course is open only in exceptional cases where the finding is shown to be perverse. I am not impressed by the grounds canvassed by the learned counsel for the petitioner (A2) which are insufficient even to lead to an inference that the concurrent finding made by the two inferior courts was based on a mis appreciation of the evidence. Evidence of PW1, PW2 and PW4 coupled with the medical evidence was found credible and trustworthy to both the courts to conclude that they suffered injuries at the hands of present revision petitioner and he had assaulted them with a bamboo stick. The learned Magistrate had also found that the discrepancy as regards the name of the assailant in P1 statement of PW1 at the most was a slip of her tongue or a mistake committed by the police officer who recorded her statement. Her evidence before the court that the revision petitioner/A2 was her assailant , he struck her and other injured, Crl.R.P. 8/2002 -7- PW2 and PW4, with bamboo stick and caused them injuries, was found reliable and trustworthy to the Magistrate and also to the Sessions Judge, who appreciated the materials in appeal. The evidence of PW1 is corroborated in material particulars by the evidence of two other injured witnesses PW1 and PW4. Conviction of the revision petitioner/A2 in the proved facts and circumstances, for the offence under Section 324 IPC, is fully supported by the legal evidence tendered in the case and it is only to be confirmed. I do so. 7. Now on the plea canvassed to alter the sentence imposed by invoking the provisions of Probation of Offenders Act in favour of the revision petitioner (A2) since the confirmation of the sentence will cause him severe hardship, as he is likely to suffer termination of his service, I find that his eligibility for the benefit of the provisions of the Probation of Offenders has to be examined with reference to the proved facts and circumstances of the case and not solely on the basis of the injury likely to be caused. A false plea of alibi was canvassed by the revision petitioner (A2) to wriggle out of the penal consequences arising Crl.R.P. 8/2002 -8- out of his assault on the the injured PW1, 2 and 4, with a bamboo stick, also cannot be ignored in such an enquiry. The learned Magistrate who conducted the trial has considered the applicability of invoking provisions of Probation of Offenders Act to the revision petitioner, and found, against noticing that he had manhandled both parents and also their son and he was not entitled to the benefits of that Act. I do not find any reason to take a different view in the proved facts of the case. Sufficient indulgence has been shown by the learned Magistrate in the matter of punishment limiting in to fine only, though the proved facts called for a deterring punishment of incarceration of a prison term. Sentence imposed in the circumstances does not require any modification. Revision is found devoid of merit and it is dismissed. S.S. SATHEESACHANDRAN, JUDGE vkm