IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 Crl.Rev.Pet.No. 1938 of 2005() ------------------------------ CRA.192/1996 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.532/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... REVN. PETITIONER(S): APPELLANT: ------------------------------- RAJU, S/O. KUTTAPPAN, THODIYIL VEEDU, VP VIII/557, VAKKOM VILLAGE, VAKKOM DESOM. BY ADV. SRI.M.BALAGOVINDAN SRI.SASITH.M.R RESPONDENT(S): RESPONDENT: -------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KADAKKAVOOR POLICE STATION THROUGH STATE PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1938 OF 2005 --------------------------------------------- Dated 7th June, 2010 O R D E R Petitioner, the first accused in C.C.532/1994 on the file of Judicial First Class Magistrate, Varkala was convicted and sentenced for the offence under Sections 324 and 326 read with Section 34 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions court, Thiruvananthapuram in Crl.A.192/1996. Learned Additional Sessions Judge on re-appreciation of the evidence, confirmed the conviction but modified the sentence to simple imprisonment for three months and fine of Rs.5,000/-. Revision petitioner challenged the conviction and sentence. CRRP.1938/05 2 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that evidence of PW1 is not corroborated by the medical evidence and there is no material to establish the offence under Section 326 of Indian Penal Code and when the second accused was acquitted, on the very same materials courts below should not have convicted the petitioner and therefore, the conviction is bad and illegal. Learned counsel then argued that in any case, even if condition is to be con confirmed, the sentence may be modified and substantive sentence may be avoided with adequate compensation to the injured. 4. Prosecution case is that on 25/6/1994 at about 9 p.m, PW1 along with Pws.2 CRRP.1938/05 3 and 3 were proceeding to his house and when they reached near to the electric post on the eastern compound wall of Raveendran's property two accused in furtherance of their common intention attacked PW1. Petitioner inflicted a cut injury on his nose, upper lip and lower lip using a chopper. Second accused hit him with an iron rod and also caused injury on the left knee. PW1 sustained grievous injuries as he lost one tooth, each from the upper jaws and thereby committed offences under Sections 325, 326 and 324 read with Section 34 of Indian Penal Code. Both accused pleaded not guilty. Prosecution examined 11 witnesses and marked Exts.P1 to P6 and identified Mos.1 and 2, dresses worn by PW1 and MO.3 lost tooth and MO.4 chopper and MO.5 iron rod. Learned Magistrate on appreciation of the evidence CRRP.1938/05 4 found the evidence insufficient to convict the second accused and acquitted him. Learned Magistrate found that petitioner voluntarily caused grievous hurt and hurt by inflicting injury, using dangerous weapon on PW1 and convicted him for the offences under Sections 326 and 324 of Indian Penal Code. Petitioner was sentenced to simple imprisonment for one year for the offence under Section 326 and simple imprisonment for six months for the offence under Section 324. Learned Sessions Judge re-appreciated the evidence and found that evidence of PW1 is fully corroborated by the evidence of Pws.2 to 4 and evidence of PW8 the doctor with Exts.P4 wound certificate establish that petitioner lost lower medial lateral incisor, and sustained lacerated wound on the tip of nose and upper lip and confirmed CRRP.1938/05 5 the conviction. Learned Sessions Judge took a lenient view and reduced the substantive sentence for the offence under Section 326 to simple imprisonment for three months and in view of the sentence awarded for that offence set aside the sentence for that offence under Section 324 of Indian Penal Code. 5. Though learned counsel appearing for the petitioner vehemently argued that there is no corroboration for the evidence of PW1 by the medical evidence, the injury sustained by PW1 as spoken to by him as corroborated by the evidence of Pws.2 to 4, the eye witnesses to the incident is proved by PW* the doctor and Ext.P4. The incident was at about 9.30 p.m on 25/6/1994. PW8 examined PW1 at 10 p.m on the same day and prepared Ext.P4. Evidence of PW8 with Ext.P4 establish that when the doctor CRRP.1938/05 6 examined PW1, within 30 minutes of the incident, it was revealed to the doctor that he sustained the injuries at the hands of the petitioner when he attacked him with a chopper. Ext.P4 wound certificate establishes that apart from the lacerated wound on the tip of the nose and upper lip, PW1 lost lower lateral incisor on the left side and lower medial incisor was broken and was displaced. Evidence of PW8 prove that the injuries noted could be caused as spoken to by PW1. As rightly found by the courts below, evidence of PW1 is fully corroborated by the evidence of PW2 to PW4, and evidence of PW8 establishes that PW1 sustained grievous hurt on that night. It is conclusively proved that the injuries were inflicted by the petitioner. Though learned counsel argued that in Ext.P4 doctor has also CRRP.1938/05 7 recorded that two brothers had also participated in the incident, that will not affect the case as against the petitioner. The version of PW1 is consistent from the date of sustaining injury and is corroborated by Pws.2 to 4. In such circumstances, conviction of the petitioner for the offence under Sections 326 and 324 of Indian Penal Code is perfectly legal. 6. Then the only question is regarding the sentence. Learned Sessions Judge rightly interfered with the sentence for the offence under Section 324 in view of the sentence awarded for the offence under Section 326, as both injuries were inflicted by the petitioner on PW1. Learned Sessions Judge reduced the substantive sentence for the offence under Section 326 to simple imprisonment for three CRRP.1938/05 8 months in addition to a fine of Rs.5,000/-. Though learned counsel prayed for reducing the sentence further, I find no reason to interfere with the sentence also. Revision fails and is dismissed. Petitioner is directed to appear before the Judicial First Class Magistrate, Varkala on 6/7/2010. Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.