IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 3169 of 2004(A) ------------------------------- CRA.131/2003 of ON THE FILE OF ADDITIONAL SESSIONS JUDGE (ADHOC-III), MANJERI IN C.C.NO.118/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER/ APPELLANT/ACCUSED NO.1 ------------------------------------------- ABDUL HAMEED @ HAMEED, S/O. ABDU, MANDAYIL HOUSE, PANDIKKAD AMSOM DESOM, ERIYAD, PADIKKAD POLICE STATION LIMIT. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.M.P.PRABHANANDAN RESPONDENT/ RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, SRI.NOUSHAD THOTTATHIL. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/12/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------- Crl.R.P.No.3169 OF 2004 ----------------------------- Dated this the 2nd day of December, 2011 O R D E R ~~~~~~~ The revision petitioner is the accused in C.C.No.118/2001 on the file of the Judicial Magistrate of the 1st Class-II, Perinthalmanna. The Sub Inspector of Police, Pandikkad in Crime No.41/2001 prosecuted the revision petitioner and another alleging offences under Sections 447 and 326 read with 34 IPC with a plea that at 8 a.m., on 25.2.2001, the appellant, who is the 1st accused, along with the 2nd accused in furtherance of their common intention committed criminal trespass by entering into the courtyard of the house of PW1 bearing door No.PP III/515 and she was assaulted with a wooden reaper, a deadly weapon, and as a result, PW1 sustained injuries including the fracture of the nasal bone. On the basis of Ext.P1 First Information Statement, recorded by PW10, the Head Constable, a case was registered and the investigation was taken over by PW11, another Head Constable. Later, the investigation was taken over by the Sub Inspector, who laid the chargesheet. Crl.R.P.No.3169/2004 2 2. After hearing either side, the learned Magistrate framed charge for the above said offences. When read over and explained, the revision petitioner pleaded not guilty. So, he was sent for trial. On the side of the prosecution, PWs 1 to 11 were examined. Exts.P1 to P7 and MO1, the weapon used for assault, were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313(1)(b) of the Code of Criminal Procedure. The revision petitioner took a defence of total denial. No defence evidence was let in. The learned Magistrate, on appraisal of the evidence, arrived at a finding that the prosecution had not succeeded to establish offence under Section 447 read with 34 IPC but succeeded to establish offence under Section 326 read with 34 IPC. Consequently, while acquitting the revision petitioner and the other accused for offence under Section 447 read with 34 IPC, they were convicted for offence under Section 326 read with 34 IPC and sentenced to rigorous imprisonment for one year. Aggrieved by the above conviction and sentence, they preferred Crl.A.131/2003 before the Sessions Judge, Manjeri. The Sessions Judge, Manjeri made over the appeal to the Additional Crl.R.P.No.3169/2004 3 Sessions Judge, Adhoc-II, who, on appraisal of the evidence, arrived at a finding that the prosecution had not succeeded to establish the offence against the 2nd accused. Consequently, the 2nd accused was acquitted for offence under Section 326 IPC also. But it was found that the offence under Section 326 IPC was established against the revision petitioner. Therefore, the conviction was confirmed. While confirming the sentence, a fine of Rs.1,000/- was also imposed against the revision petitioner. Assailing the legality, correctness and propriety of the above conviction and sentence, this Revision Petition is preferred. 3. I have heard Adv. Sri.Sojan Michle, the learned counsel appearing for the revision petitioner and Sri.Noushad Thottathil, the learned Government Pleader. Perused the judgment impugned. I was also taken through the evidence of PWs 1 to 6 as well as through Exts.P1, P2 and P3 by the learned counsel for the petitioner in his attempt to establish that the evidence on record is not at all sufficient to sustain the conviction and sentence. Crl.R.P.No.3169/2004 4 4. According to the learned counsel for the revision petitioner, the charge was that PW1 was inflicted grievous hurt after trespassing into the courtyard of the house of PW1. But, in the evidence, it was revealed that the alleged inflicting of grievous hurt was at a lane in front of the house of PW1. It was further submitted that in Ext.P2 wound certificate, there is no mention about any fracture of the nasal bone. But in Ext.P3, discharge card, fracture of the nasal bone is stated. According to the learned counsel, PW6, the Civil Surgeon, who issued Ext.P3, had deposed that Ext.P3 discharge certificate was issued in continuation of wound certificate bearing No.37/2001. Giving reliance to the serial number shown in Ext.P2, the learned counsel submitted that there is no such number mentioned by PW6 in Ext.P2. So also it was argued that I.P. number shown in Exts.P2 and P3 are different. Therefore, according to the learned counsel, there is no proof regarding the grievous hurt. The further argument of the learned counsel for the revision petitioner is that the evidence of PWs 1 to 3 are not reliable. According to the learned counsel, PW2 had stated before the Investigating Officer that he had not seen the incident but Crl.R.P.No.3169/2004 5 deposed before the Court that he had seen the incident. Though PW3 had deposed about the incident, PW1 had deposed that PW3 had not seen the incident. Therefore, according to the learned counsel, the evidence of PWs 2 and 3 are not believable. The further argument is that the trespass was disbelieved by the trial court itself. Therefore, the other part of the prosecution story is also to be disbelieved. Yet another argument that was advanced is that in the First Information Statement it is stated that PW1 was beaten with a പടക (reaper). In the chargesheet it was stated that PW1 was beaten with a വള which is stated to be a square piece used for fixing the rafters. With these arguments, the learned counsel sought for interfering with the judgment impugned. 5. In the light of the above argument, I had carefully gone through the judgment impugned and the evidences of PWs 1 to 6 and PW11 as well as Exts.P2 and P3. In Ext.P2, as rightly argued by the learned counsel for the petitioner, there is no mention regarding the fracture of the nasal bone. PW5, the Assistant Surgeon, who attended PW1, had noted injury on the Crl.R.P.No.3169/2004 6 nose with epistaxis (bleeding), contusion left forearm 2 x 2 cm and there was complaint of headache. PW5 had deposed that PW1 was referred to the Orthopedic surgeon. PW6, the Civil Surgeon, had deposed that Ext.P3 is the discharge card and that PW1 had fracture of the nasal bone. It is true that PW6 had deposed that Ext.P3 was issued in continuation of wound certificate bearing No.37/01 and such number is not seen in Ext.P2. So also, I.P. Number varies. But the name of PW1 is identical in both documents. It is crucial to note that the identity of the patient was not at all challenged by the revision petitioner while PWs 5 and 6 were examined. For that reason itself the present argument is devoid of merit. It is crucial to note that there is no suggestion to PW6 that Ext.P3 was issued not in continuation of Ext.P2. Such being the nature of the cross examination of PW6, I find that mere omission of the number of the wound certificate or the difference in the I.P. Number is not at all a reason to reject the evidence of PWs 5 and 6 or Exts.P2 and P3. It is pertinent to note that there is no difference regarding the name of the patient and date of the admission. It is also crucial to note that PW1 had in unambiguous terms deposed Crl.R.P.No.3169/2004 7 that he had sustained fracture of the nasal bone. That evidence remains unchallenged. In the above circumstance, even if Exts.P2 and P3 are not reliable, there is the unchallenged evidence of PW1 that she had sustained fracture of the nasal bone. 6. PW1 had deposed that she was beaten by the revision petitioner with MO1. PW2 also had deposed that PW1 was beaten by the revision petitioner with MO1. Irrespective of the nomenclature, MO1 is admittedly a wooden piece. Since there is evidence of PWs 1 and 2 with reference to MO1, whether it is called as വള or പടക, the evidence of PWs 1 and 2 is not liable to be rejected. Though it is seen that to PW2 it was put in cross examination that she had not stated before the Investigating Officer that she had seen the assault, PW2 had asserted that she had stated so. There is no question put to PW11, who recorded the statement of PW2 that PW2 had not stated that she had seen the incident. Therefore, there is no contradiction in the evidence of PW2. It is true that PW1 had stated that PW3 had not seen the incident. But PW3 had deposed so. In the nature of the Crl.R.P.No.3169/2004 8 assault and the injuries sustained, in the normal course the assailant would be in the strain of the pain, especially when the assault is on the face causing fracture of the nasal bone. There is little likelihood of exactly noticing as to who all were present or who all had seen the incident. On a critical scrutiny of the evidence of PWs 1 to 3, as observed by the courts below, there is no reason to disbelieve PWs 1 to 3 regarding the assault on PW1 with MO1. The discrepancies pointed out by the learned counsel are minor in nature. They are discrepancies of truth not affecting the core. Therefore, I have to concur with the courts below that PW1 was assaulted by the revision petitioner with MO1 and as a result, PW1 had sustained fracture of the nasal bone, nothing but a grievous hurt. 7. Regarding the place of the occurrence, I had gone through the final report by the Investigating Officer as well as the First Information Statement and the court charge with reference to the evidence of PWs 1 to 3. It is revealed that the genesis of the crime is relating to the payment of some money to a lady. The revision petitioner and the other accused in fact Crl.R.P.No.3169/2004 9 reached the courtyard of the house of PW1 to confront with the statement and from there PW1 was led to the lane in front of the house and it is at that place the assault was committed. It appears that in the court charge, there is omission regarding the place where the hurt was inflicted. In the light of the final report based upon which the case was defended, I find that such omission is not at all relevant and there is no omission regarding the place affecting the core of the prosecution case or to reject the evidence of PWs 1 to 3. 8. The courts below had analysed the evidence and rightly rejected the criminal trespass alleged by the prosecution as well as the assault by the 2nd accused. It appears that the trespass was alleged taking note that the assailants entered the courtyard for confronting with some statements. The accused were acquitted by the trial court for offence under Section 447 IPC only for the reason that the hurt was caused not at the courtyard, but at the nearby lane. The reliable part of the prosecution story is believed by the trial court and the appellate court. In revision, it is not at all justified to interfere with the Crl.R.P.No.3169/2004 10 conviction entered by the courts below referring to the reliable part of the evidence of the occurrence witnesses. There may be instances where there would be some confusion regarding the prosecution case. In such cases, it is legitimate to accept the evidence to the extent to which it is believable after rejecting the non-believable part. It is pertinent to note that all the three occurrence witnesses are village-foke. Admittedly, they are illiterate also. Therefore, in the event the court of facts had disbelieved a portion of the prosecution story that is not at all a reason to reject the believable part of the prosecution case which is established by the evidence. The courts below had correctly appreciated the evidence regarding the grievous hurt caused to PW1. I find that the conviction for offence under Section 326 is based upon cogent evidence and is fully sustainable. Regarding the sentence, I find that the appellate court went wrong in adding a fine to the substantial sentence awarded by the trial court. Taking into account that the crime alleged is consequence of a village dispute and that it was not a pre-determined crime, I find that the sentence awarded by the trial court requires a modification and that sentence of simple imprisonment for six Crl.R.P.No.3169/2004 11 months with a fine of Rs.3,000/- (Rupees three thousand only) would meet the ends of justice. 9. In the result, the Criminal Revision Petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to simple imprisonment for six months with a fine of Rupees three thousand. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for another one month. The fine amount, if realised, shall be paid to PW1 as compensation. (P.S.GOPINATHAN, JUDGE) ps/6/12