IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q. BARKATH ALI WEDNESDAY, JUNE 24, 2009/ASHADHA 3, 1931 Crl.Rev.Pet.No. 437 of 2002() ----------------------------- CRA.54/1995 of SESSIONS COURT, MANJERI CC.287/1994 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------- THACHARAMBAN HUSSAIN, S/O. MOHEMMED, MALAYIL HOUSE, KUZHIMANA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENTS/COMPLAINANT : ---------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. 2. THE SUB INSPECTOR OF POLICE, KONDOTTY POLICE STATION, KONDOTTY, MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.R.P. 437 OF 2002 -------------------------------------- Dated: JUNE 24, 2009 ORDER This is a revision filed under secs.397 and 401 of Crl. Procedure Code by the accused in C.C.No.287/1994 of Judicial First Class Magistrate's Court, Malappuram, who is the appellant in Crl.A.No.54/1995 of the Court of Sessions, Manjeri, challenging his conviction under secs.447 and 326 IPC and sentence to undergo simple imprisonment for one year under sec.326 IPC and simple imprisonment for three months under sec.447 IPC by the trial court, which was reduced to simple imprisonment for three months under sec.326 IPC but maintaining the sentence under sec.447 IPC by the lower appellate court. 2. The case of the prosecution as shaped in evidence before the trial court was that at about 8 p.m. on April 6,1994 the revision petitioner/accused trespassed into the courtyard of the house of PW.1, the de facto complainant, and voluntarily caused grievous hurt to him by beating him with an axe handle on his forehead and thereby committed an offence punishable under secs.447 and 326 of IPC. The revision petitioner pleaded CRL.R.P. 437 OF 2002 2 not guilty to the charge before the trial court. PWs.1 to 6 were examined and Exts.P1 to P6 were marked and M.O.1 was produced on the side of the prosecution before the trial court. PW.1 is the de facto complainant and injured. PW.2 is the eye witness to the incident who was along with PW.1 at the time of the incident. PW.3 is a witness who allegedly saw PW.1 with a bleeding injury on his forehead and the accused going away from the scene of the incident. PW.4 is only an attester to Ext.P2 scene mahazar. PW.6 is the medical officer who examined PW.1 and issued the wound certificate Ext.P5 and discharge certificate Ext.P6. PW.5 is the A.S.I. who recorded the F.I. Statement Ext.P1 and investigated the case and laid the charge before the trial court. 3. The case of the accused was one of total denial. When questioned under sec.313 Cr.P.C. by the trial court he would say that it was PW.1 who came to his house and assaulted him and that PW.1 sustained injuries when he fell down on a stone. He got himself examined as DW.1 before the trial court. 4. The trial court accepted the evidence adduced on the side of the prosecution and found the revision petitioner guilty of the offence punishable under secs.447 and 326 of IPC, convicted CRL.R.P. 437 OF 2002 3 him and sentenced him as aforesaid. The lower appellate court, while maintaining the sentence under sec.447 IPC, reduced the sentence under sec.326 IPC to simple imprisonment for three months. The accused has come up in revision challenging the said conviction and sentence by the trial court which was confirmed by the lower appellate court. 5. The only point which arises for consideration is whether the conviction of the revision petitioner by the trial court which was confirmed by the lower appellate court can be sustained and, if so, what is the proper sentence. 6. The learned counsel appearing for the revision petitioner Sri Babu S. Nair argued that the evidence of Pws.1 to 3 is artificial and that the same should not have been believed by the trial court as well as the lower appellate court. The learned Public Prosecutor appearing for the State would argue that the trial court as well as the lower appellate court have chosen to believe the evidence of Pws.1 to 6 and that therefore there is no ground to set aside the conviction and sentence of the revision petitioner. 7. I have gone through the evidence of Pws.1 to 3. I find no special reason to disbelieve their evidence. The trial court CRL.R.P. 437 OF 2002 4 who had an opportunity to see those witnesses have chosen to believe their evidence. The lower appellate court has also believed their evidence. No serious discrepancies or inconsistencies were pointed out in their evidence. 8. The learned counsel for the revision petitioner argued that the alleged incident occurred on April 6, 1994 at about 10.15 p.m., that the F.I. Statement was seen recorded on April 10, 1994 and that due to this delay, the version of Pws.1 to 3 has to be disbelieved and that PW.1 suffered some minor injuries on his hand which were not explained by the prosecution. I find no substance in the above argument raised by the counsel for the revision petitioner. Ext.P5 wound certificate shows and PW.6 medical officer has also testified that PW.1 was admitted in the hospital on the date of the incident itself and that he sustained serious injuries on his skull. That being so, merely because of the delay in recording the statement of PW.1, the evidence of Pws.1 to 3 cannot be disbelieved. The Public Prosecutor has also pointed out that on receiving a blow from the accused, PW.1 fell down and he might have sustained the said injuries on his hands. 9. Both the courts below have chosen to disbelieve the CRL.R.P. 437 OF 2002 5 evidence of DW.1. I have gone through the evidence of DW.1 and I find no reason to come to a different conclusion. That being so, the conviction of the revision petitioner by the trial court under secs.447 and 326 of IPC, which is confirmed by the lower appellate court has to be confirmed. 10. As regards the sentence, the trial court sentenced him to undergo simple imprisonment for three months under sec.447 of IPC and simple imprisonment for one year under sec.326 of IPC. The lower appellate court, while maintaining the sentence under sec.447 of IPC, reduced the sentence under sec.326 of IPC to simple imprisonment for three months as PW.1 and the accused are relatives. I find no special reason to reduce the sentence further. In the result this Crl.R.P. is dismissed. The revision petitioner shall surrender before the trial court to suffer the sentence within two weeks from this date, failing which the trial court shall issue warrant for his arrest. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mt/- CRL.R.P. 437 OF 2002 6 P.Q. BARKATH ALI, J. ------------------------------ CRL.R.P. 437 Of 2002 ORDER ------------------------------ 24.6.2009