IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 Crl.Rev.Pet.No. 1436 of 2002 ----------------------------------------------- CRA.125/1998 of ADDL.SESSIONS COURT (ADHOC-I), ALAPPUZHA CC.450/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER/APPELLANT/ACCUSED: RADHAKRISHNAN @ PRAKASAN, KANNATTU VELIYIL, CMC 19, CHERTHALA. BY ADV. SRI.M.R.ARUN KUMAR RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.8053/2002 IN CRRP 1436/2002 DISMISSED 21.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1436 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.450/1994 on the file of Judicial First Class Magistrate's Court-I, Cherthala, filed this revision challenging the concurrent conviction and sentence for the offence under Sections 323 and 325 of Indian Penal Code. Prosecution case is that on 24.7.1994 at about 8 p.m., when PW2 Madhavi went to the public tap situated in the property of the petitioner, which lies near to the house of PW2, for taking water, due to previous enmity, petitioner, in furtherance of his intention to cause hurt to PW2 and her daughters PWs 3 and 4, pulled down PW2 and as a result she fell down and sustained fracture of left hand and when PWs 3 and 4 tried to lift PW2, petitioner beat them using a wooden stick and thereby caused hurt to PWs 3 and 4 and grievous hurt to PW2. Petitioner pleaded not guilty. CRRP 1436/02 2 2. Prosecution examined nine witnesses and marked six exhibits. On the side of the petitioner, two witnesses were examined and portions of the statement of PW3, recorded under Section 161 of Code of Criminal Procedure, were marked. 3. Learned Magistrate, on the evidence, found the petitioner guilty of the offences under Sections 325 and 323 of Indian Penal Code and convicted and sentenced him to simple imprisonment for six months and a fine of Rs.2,500/- and simple imprisonment for six months and a fine of Rs.500/- respectively. Though petitioner challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.No.125/98, learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. Learned counsel argued that courts below should not have believed the evidence of PWs 2 to CRRP 1436/02 3 4, when PW1, the independent witness, turned hostile and on a proper appreciation of the evidence, prosecution case should have been disbelieved. Learned counsel would argue that even if evidence of PWs 2 to 4 is accepted, the offence would not come under Section 325 of Indian Penal Code, as there was no intention on the part of the petitioner to cause grievous hurt. It was argued that at best an offence under Section 350 of Indian Penal Code is attracted and not an offence under Section 325 of Indian Penal Code. 6. Learned Public Prosecutor submitted that both the Magistrate and the learned Sessions Judge appreciated the evidence of PWs 2 to 4 in the proper perspective and the fact that PW2 sustained grievous hurt is proved by the evidence of PW5, the Doctor and Exhibit P2 wound certificate and the fact that PW3 sustained hurt is proved by the evidence of PWs 2 and 3 and Exhibit P4 wound certificate, proved by the evidence of PW7, the Doctor and there is no reason to interfere with the CRRP 1436/02 4 conviction or sentence. 7. Exhibit P2 wound certificate prepared by PW5, the Civil Surgeon attached to Government Hospital, Cherthala, establish that PW2 was examined by the Doctor at 12 a.m. on 24.7.1994 and it was disclosed to the Doctor by PW2 that she sustained the injury at about 8 a.m. on the same day when she was pushed and made to fall. PW5 found a swelling on the lower end of her left radius and tenderness. The X-ray taken revealed that there was fracture. PW3 was examined by PW7, the Doctor, on the next day at 11.15 a.m. and noted the injuries, which were reported to be caused when she was beaten with a stick by the petitioner. Though learned counsel appearing for the petitioner vehemently argued that evidence of PWs 2 and 3 should not have been believed when the evidence of PW4 was disbelieved by the courts below, on going through the evidence, I find no reason to differ from the appreciation of evidence by the courts below on the evidence of PWs 2 and 3 or their CRRP 1436/02 5 finding that the injury sustained by PW2 was caused when she was pulled and made to fall by the petitioner and PW3 sustained the injury when she was beaten by the petitioner. 8. Then the question is what are the offences proved. Exhibit P2 wound certificate with the evidence of PW5 establish that PW2 sustained grievous hurt. That aspect cannot be disputed. But, the question is whether petitioner inflicted that injury either with the intention or with the knowledge that by such act, he would cause or likely to cause grievous hurt. Evidence of PWs 2 and 3 show that there was previous enmity for the petitioner against PWs 2 and 3. It is also clear that on the morning of 24.7.1994, when PW2 went to the public tap to take water, petitioner prevented it and made PW2 to fall. Evidence establishes that petitioner pulled the hand of PW2, with such force, causing her to fall. Evidence of PW2 with PW5 establish that by such fall, PW2 sustained grievous hurt. But, the question is can an intention on the CRRP 1436/02 6 part of the petitioner to inflict a grievous hurt is made out. Exhibit P3 scene mahazar shows that the scene of occurrence is a sandy area. Normally, if a person is pulled and as a result, that person falls on the ground, it need not necessarily cause a fracture. It need not even likely to cause fracture on a simple fall. In such circumstances, unless, by the action of the petitioner, it is clear that he had an intention to cause grievous hurt to PW2, it cannot be said that he voluntarily caused grievous hurt by making PW2 to fall on the ground and as a result, caused fracture of left radius. Evidence of PWs 2 and 3 show that petitioner was armed with a stick. If petitioner had an intention to cause grievous hurt, in the ordinary course, one would expect him to use a stick to inflict such an injury on PW2. But, even according to PW2, petitioner did not inflict any injury on her using the stick. If the case is so appreciated, though PW2 sustained grievous hurt by the fall, petitioner did not cause that grievous CRRP 1436/02 7 hurt either with the intention to cause it or with the knowledge that it is likely to cause grievous hurt. Therefore, on the facts of this case, petitioner cannot be convicted for the offence under Section 325 of Indian Penal Code. At the same time, evidence establish that petitioner, with the intention to cause hurt, pulled PW2 and made her to fall and thereby caused hurt. So also, petitioner voluntarily caused hurt to PW3 by beating her with a stick. In such circumstances, petitioner could only be convicted for the offence under Section 323 of Indian Penal Code. 9. Then the question is regarding the sentence. Section 323 of Indian Penal Code provides for punishment of imprisonment which may extend to one year or fine which may extend to one thousand rupees or both. Considering the fact that the incident was in 1994, interest of justice will be met if petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.5,000/- to be paid to PW2 and Rs.2,000/- to be paid to PW3. If CRRP 1436/02 8 PW2 is no more, the compensation is to be paid to her legal heirs. Revision is allowed in part. Conviction of the petitioner for the offence under Section 325 of Indian Penal Code is set aside. Petitioner is found not guilty of the offence under Section 325 and is acquitted of that offence. Conviction of the petitioner for the offence under Section 323 of Indian Penal Code is confirmed, modifying the sentence. Petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.5,000/- to be paid to PW2 Madhavi and Rs.2,000/- to be paid to PW3 Padmini and in default, simple imprisonment for one month each. If PW2 is no more, the compensation is to be paid to her legal heirs. Petitioner is directed to appear before Judicial First Class Magistrate-I, Cherthala on 20.07.2010. Magistrate is directed to execute the sentence. 21st June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1436/02 9 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1436 of 2002 -------------------------- ORDER 21st June, 2010