IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 Crl.Rev.Pet.No. 511 of 2002() ----------------------------- CRA.243/1994 of SESSIONS COURT, MANJERI CC.1/1992 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER/APPELLANT/1ST ACCUSED: --------------------- VATTAPARAMBATH KURIKKAL SAIDALAVI S/O.MOIDEEN,MUNDAPPOTTI,VAZHIKKADAVU AMSOM. BY ADV. SRI.K.P.MUJEEB RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA,REPRESENTED BY THE SUB INSPECTOR OF POLICE,VAZHIKKADAVU,THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.3359/2002 IN CRL.R.P.511/2002 DISMISSED. 2.4.2009 S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.511 OF 2002 () ----------------------------------- Dated this the 2nd day of April, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/1st accused, hereinafter referred to as A1, for the offence punishable under Section 326 of IPC. He was prosecuted along with two others for the offences punishable under Sections 341, 326 and 324 read with Section 34 of IPC. After trial, the learned Magistrate found the accused guilty of the offences punishable under Sections 324 and 326 of IPC and convicted him thereunder. He was sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 326 of IPC and rigorous imprisonment for six months for the offence punishable under Section 324 of IPC, directing him to undergo the sentence concurrently. The other two accused, A2 and A3, were found not guilty of the offences and they were acquitted. The CRL.R.P.511/02 2 revision petitioner preferred an appeal against his conviction and sentence, and the learned Sessions Judge, Mancheri, after reappreciating the evidence, upheld his conviction under Section 326 of IPC, and set aside the conviction under Section 324 of IPC and acquitted him of that offence. He was sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs.8,000/- to the defacto complainant, injured, with default term of simple imprisonment for two months more, for the offence under Section 326 of IPC. Aggrieved by the conviction and sentence, as modified by the appellate court, questioning its legality, propriety and correctness, he has preferred this revision. 2. The prosecution case in brief is thus: The revision petitioner, A1 along with his three sons A2 to A4 conjointly assaulted PW1, the defacto complainant with deadly weapons at about 7.30 a.m. on 25.10.1991 in a public road situate beside the residential building of the accused and consequently the defacto complainant PW1 sustained grave injures including fracture of his left femur. A crime was CRL.R.P.511/02 3 registered on recording the statement of PW1 while he was undergoing treatment in hospital and, after completion of the investigation, the revision petitioner and two of his sons A1 to A3 were indicted for the offences punishable under Sections 341, 324 and 326 of IPC. Since A4 was a juvenile, a separate charge was laid against him before the juvenile court. The revision petitioner and the co-accused, all of them, A1 to A3, on their appearance before the court, pleaded not guilty when the charges framed against them were made known. Prosecution examined PWs.1 to 8, got marked Exts.P1 to P6 and identified MO1 and MO2, the weapons of offence to prove its case. The accused, when questioned under Section 313 of Cr.P.C., maintaining their innocence canvassed a defence that the occurrence took place in a different manner. The defence version projected was that the defacto complainant came beside the house of the revision petitioner in the company of three others, called him out and then attacked him with a deadly knife. A1, revision petitioner, managed to run away and escape from the scene, and in the course of the transaction, the defacto complainant had fallen down to a CRL.R.P.511/02 4 ditch and thereby sustained the injures. To substantiate the defence so canvassed, the accused examined two witnesses as DWs.1 and 2. The learned Magistrate, after appreciating the materials produced in the case, found that the culpability of the present revision petitioner of assaulting PW1 with a deadly weapon, the handle of an axe, and causing him grievous hurt, had been proved by legal evidence, and thereupon he was convicted of the offences punishable under Sections 324 and 326 of IPC. So far as the other accused, A2 and A3, who faced trial jointly with A1, on the materials placed the learned Magistrate arrived at the conclusion that they are entitled to the benefit of doubt, and in that view of the matter both of them were acquitted of the offences charged. Against the conviction of the revision petitioner, A1, passed by the learned Magistrate, he had preferred an appeal, and as already indicated, the Sessions Judge after reappreciating the evidence, set aside his conviction under Section 324 of IPC, while upholding the conviction under Section 326 of IPC. Sentence imposed against him under Section 326 of IPC was also modified as indicated earlier. CRL.R.P.511/02 5 3. I heard the learned counsel for the revision petitioner A1 and also the learned Public Prosecutor. Concurrent finding of guilty entered against the revision petitioner for the offences under Section 326 of IPC and his conviction thereunder by the courts below are assailed by the learned counsel contending that sufficient opportunity was not extended to him to defend the accusation since he did not get an opportunity to cross examine the Doctor, PW5, who issued Ext.P4 wound certificate noting the injuries sustained by the defacto complainant while he underwent treatment at General Hospital, Nilambur. Though a petition was moved to recall the witness for cross examination, it was turned down by the learned Magistrate, and it has caused prejudice to the revision petitioner, is the submission of the counsel. Remitting the case after setting aside the conviction and sentence, is pressed by the counsel, for having an opportunity to challenge Ext.P4 certificate and the evidence of PW5, doctor by examining that witness afresh. The injured defacto complainant had filed a civil suit separately to claim damages from the accused for the injuries sustained and he had given a CRL.R.P.511/02 6 different version when examined as a witness in that case, is the submission of the counsel. That circumstance is also highlighted to contend that the version of the defacto complainant as to how he sustained injuries was not credible and trustworthy and the defence version which was sought to be established by examining two witnesses DWs.1 and 2 should have atleast received consideration as probable. Lastly, interference with the sentence imposed against the revision petitioner is sought for urging that he is now aged more than 75 years and he is suffering from serious ailments. Substantive term of imprisonment imposed against him, it is submitted, may be set aside considering his old age and ailments. 4. I have perused the records giving consideration to the submissions made by the counsel. PW1, is the injured. Ext.P4 certificate issued by PW5, the doctor, who examined the injured while he underwent treatment in General Hospital, Nilambur disclosed that he has suffered the following injuries: CRL.R.P.511/02 7 1.Abrasion 1 cm x 1/8 cm on the left side of scalp front. 2.Compound fracture on the left femur and 3.Lacerated wound 2 cm x 1 cm on the middle of right leg. The evidence of PW1, corroborated in material particulars by PW2, who also witnessed the assault, would show that the revision petitioner A1 assaulted the injured with a deadly weapon, the handle of an axe, striking on the vital parts of his person including his head. The learned Magistrate who had an opportunity to watch the demeanour and deportment of the witnesses found the testimonies of PWs.1 and 2 reliable, trust worthy and convincing. Sessions Judge after reappreciating their evidence, concurred with the finding arrived by the Magistrate. After perusing their evidence, I find no reason to take a different view. The injuries suffered by PW1, the defacto complainant, at the hands of A1, the revision petitioner is corroborated by the evidence of PW5, doctor and Ext.P4 wound certificate issued by him. The revision petitioner did not get an opportunity to cross examine that CRL.R.P.511/02 8 doctor is the grievance canvassed in the revision to assail his conviction. It is noticed that the very same grievance was canvassed before the Session Judge in appeal and, after examining the materials, it was found to be devoid of any merit. Presumably no possible challenges could have been raised against the evidence of PW5 and also the injures noted in Ext.P4 certificate, and hence the witness was not cross examined. The evidence in the case would show that after sustaining injuries in the occurrence, PW1, the injured was in the hospital for eight days, and he had plaster of paris over his left limb for a period of eight months. It has come out in evidence when he was examined, even at that point of time, on account of the injuries sustained, he could not properly sit. Coupled with these facts as borne out by the materials of the case, it is also seen that another doctor was examined as PW6 to prove the discharge certificate. As pointed out by the appellate court, if any expert opinion on the injuries suffered by the injured was required to be elicited, the defence could have very well cross examined PW6 on those aspects. What is seen from the evidence of PW6 is that a suggestion was made CRL.R.P.511/02 9 by the defence counsel that the injuries suffered by the defacto complainant could be sustained from an accident. He rightly conceded to that suggestion. Whatever be the value of that suggestion, it is to be pointed out that the defence did not want to elicit anything more regarding the injuries suffered by PW1 from the expert. So much so, the plea raised that an opportunity be given for further examination of PW5, the doctor, who issued Ext.P4 wound certificate of the injured, is nothing but a dilatory tactic to prolong the proceedings of the case, and thus delay its logical conclusion. PW1 had given a different version in a civil case filed by him for claiming damages, the argument advanced by the learned counsel to cause doubt on the worthiness of his evidence deserves to be taken note of only for its rejection. The revisional court is concerned only with the legality, propriety and correctness of the order passed by the inferior courts, and such examination, needless to say, is confined to the materials available in the case. The correctness of the order of the inferior courts is not liable to be tested with reference to any extraneous materials. Revisionl jurisdiction is supervisory in character and is CRL.R.P.511/02 10 intended to avoid failure of justice. It is also to be pointed out that no material whatsoever had been placed either before the trial court or before the appellate court that PW1 had given a different version of the occurrence in any other legal proceeding, as submitted by the counsel. I find that the concurrent finding entered by the two courts below that the revision petitioner had assaulted PW1, the defacto complainant and caused him grievous hurt is fully supported by the legal evidence and the conviction entered against the accused for the offence under Section 326 of IPC deserves only to be upheld, and I do so. 5. Now coming to the question of sentence, after confirming the conviction of the accused for the offence under Section 326 of IPC, the learned Sessions Judge in appeal, has modified the sentence limiting it to simple imprisonment for two months directing him to pay compensation of Rs.8,000/- to the injured with default term of simple imprisonment for two months. Maximum indulgence in the matter of punishment had been shown by the appellate court taking into CRL.R.P.511/02 11 consideration the old age and also the ailments which he is stated to be suffering from. Having regard to the gravity of the offence under Section 326 of IPC, for which the maximum punishment is imprisonment to life, I find no further modification of the sentence is permissible in a case of this nature, where it had been established that he had assaulted PW1, the injured, with a deadly weapon and caused him grievous hurt. Revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.511 OF 2002 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 2nd April, 2009