IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.Rev.Pet.No. 922 of 2001() ----------------------------- {CR.A.NO.39/1997 OF THE SESSIONS COURT, THODUPUZHA IN C.C.NO.103/1993 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA} .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------ MATHEW, S/O.MATHAI, KALAPURACKAL VEEDU, MOOLEKADU BHAGOM, EDAMARUKU KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.S.K.MURALEEDHARA KAIMAL SRI.B.RAJESH RESPONDENT(S)/RESPONDENT/COMPLAINANT: -------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.922 of 2001 ------------------------- Dated this the 18th day of March, 2009. O R D E R The accused in C.C.No.103/93 on the file of the Judicial Magistrate of the First Class-I Thodupuzha, who has been convicted for offences under Sections 323, 324, 325 and 427 of the Indian Penal Code (for short 'the Code'}, is the petitioner herein. The conviction and sentence, as imposed by the trial court, have been confirmed by the lower appellate court. Hence this revision petition. 2. The case of prosecution, in brief, is that on 09.11.1992 at 5.30 PM, the accused, actuated by previous enmity towards PW.1, pelted stones at the house of PW.1. When PW.1 came out of the house hearing the commotion, another stone was pelted and it hit PW.1 on his left chest and caused injuries to him. PW.2 the elder brother of PW.1 came out and he aided his brother. But, he was fisted by the accused on his face. The accused had voluntarily caused hurt. Due to the impact of the hit, his tooth had to be removed. On these allegations, the accused was CRL.R.P.No.922 of 2001 :: 2 :: prosecuted for offences punishable under Sections 323, 324, 325 and 427 of the Code. 3. Pws.1 and 2 are brothers. They are the two injured in this case. PW.1 is the de facto complainant. He deposed that when he and PW.2 were sitting inside their house, they heard a commotion of glass pieces being broken and when he came out, he was hit on his chest with a stone pelted by the accused. By the time PW.2 came out, PW.1 had been hit with a stone and hence he tried to restrain the accused. PW.2 was fisted thereby causing a hurt to his lower jaw. PW.2 was examined by PW.4 doctor who proved Ext.P3 wound certificate. Insofar as PW.2 is concerned, one of the injuries noted is on the lower lateral incisor and his tooth was loosened. It may be noted herein that the doctor, when examined as PW.4, did not state that the teeth had to be removed. He spoke only about tenderness on the left incisor. The injuries noted by the doctor on PW.1 is tenderness on the left side of the chest and a contusion 3/2 cm and also tenderness on the above part. PW.2 is seen to have been admitted on 9.11.1992 and CRL.R.P.No.922 of 2001 :: 3 :: discharged on 17.11.1992. So is the case of PW.1. PW.3 is a neighbour, who was also an eye witness to the incident. He deposed that he saw stones being pelted by the accused which hit on PW.1. He also saw the accused fisting PW.2. He denied having seen the accused hitting Pws.1 and 2. Though with slight variation, PW.8 another neighbour also corroborated Pws.1 and 2. The evidence of the investigating officer, PW.6 will show that another case was registered against Pws.1 and 2 and wife of PW.1 Sobha arising from the same transaction. Neither the FIR nor any other evidence relating to that case has been produced. One witness was examined on behalf of the accused as DW.1. According to him, he saw PW.1 catching hold of the accused and beating him. There was a scuffle between them and both of them fell on the road. Seeing this PW.1's brother came and caught hold of the neck of the accused. He also said that he did not see the window of PW.1 being broken. He also said that after the departure of the accused, PW.1 had broken the glass. He also stated that he did not see the accused causing any injury on Pws.1 and 2. CRL.R.P.No.922 of 2001 :: 4 :: 4. On going through the evidence, I am of the view that the courts below have not committed any error as such. The case of the prosecution is supported by Exts.P2 and P3 wound certificates and the testimony of Pws.1 and 2. No doubt, the evidence of Pws.1 and 2 could not have found the sole basis for conviction of the accused. But, we have the evidence of PW.3 and to some extent corroborated by PW.8 as well. 5. Learned counsel for the petitioner submits that the examination of PW.8 was not completed. Therefore, his testimony should be eschewed from consideration. There is still the testimony of PW.3 and the same is consistent with the medical evidence together with the evidence of Pws.7 and 8. Learned counsel for the petitioner refers to the judgment of the Division Bench of this court in Pylan v. State of Kerala {1992(2) KLT 661} wherein a Bench of this court had strongly condemned the prosecution for non- production of the FIR lodged by the accused and the documents relating to the injuries on the accused. It is seen that the prosecution had admitted that injuries were CRL.R.P.No.922 of 2001 :: 5 :: sustained by the accused in the said case involving an offence under Section 302 of the Indian Penal Code. But nevertheless, the materials relating to the said injuries sustained during the incident, were not produced, which according to the court, would result in injustice and the accused was given the benefit of doubt. Almost similar is the decision by another bench in Vijayakumar and others v. State {1994(2) KLJ 903} wherein the Division Bench held that if the prosecution lets in two contradictory versions, then the accused should be given the benefit of such circumstance. The dictum laid down in the aforementioned decisions do not apply to the present case. 6. I agree with the submission of the learned Public Prosecutor that this is not a case where the prosecution admits that the accused had sustained injuries. Learned counsel for the petitioner is correct when he submits that the burden to prove the case beyond reasonable doubt is on the prosecution. But, the prosecution does not admit that the accused had sustained any injury. CRL.R.P.No.922 of 2001 :: 6 :: 7. I have anxiously considered the entire evidence and I have gone through the judgments of the courts below and having considered the submissions of the learned counsel for the petitioner, I am of the view that the conviction of the accused for offences under Sections 323, 324 and 427 of the Code does not warrant any interference. But it is a different story insofar as the offence under Section 325 of the Code is concerned. There is no material to show that any grievous hurt has been caused to Pws.1 and 2. Pw.4 doctor, who proved Exts.P2 and P3, says that the left incisor teeth was loosened. There is no medical evidence to show that there was any loss of tooth. The other injuries are clearly not grievous in nature. For all these reasons, Criminal Revision Petition is allowed in part. The conviction of the appellant/accused under Section 325 of the Code is set aside. The conviction under Sections 323, 324 and 427 of the Code are confirmed. The court below did not impose a separate punishment for the offences under Sections 323 and 324 of the Code. The accused is sentenced to pay a fine of CRL.R.P.No.922 of 2001 :: 7 :: Rs.10,000/- for the offence under Section 324 of the Code. In the circumstances, it is not necessary to impose a separate sentence for the offence under Section 323 of the Code. In default of payment of fine, the appellant shall suffer simple imprisonment for a period of two months. He also directed to pay a fine of Rs.500/- for the offence under Section 323 of the Code, in default of which, he shall suffer simple imprisonment for two months. The sentence imposed by the trial court under Section 427 of the Code shall remain. If the fine amount is deposited by the accused, an amount of Rs.5,000/- shall be paid to PW.1 and another Rs.5000/- shall be paid to PW.2. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge