IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1510 of 2001(Y) ------------------------------- CRA.73/1998 of III ADDL.SESSIONS COURT, KOLLAM CC.450/1993 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... REVN. PETITIONER(S): 3RD ACCUSED/3RD ACCUSED --------------------- SHAJI, VELIYIL VEEDU NEAR SARAVANA MUKKU VALATHUNGAL C. WARD ERAVIPURAM BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- 1. STATE OF KERALA REP. BY THE SUB INSEPCTOR OF POLICE EAST POLICE STATION, KOLLAM 2. DIRECTOR OF PUBLIC PROSECUTION } HIGH COURT OF KERALA } 2ND RESPONDENT ERNAKULAM } PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009 ALONG WITH CRRP NO. 384 OF 2002 CRRP NO. 385 OF 2002 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.1510 OF 2001& 384 & 385 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009 ORDER In these three revision petitions accused 1 to 3 challenges the judgment of Chief Judicial Magistrate, Kollam in C.C.No.450/1993 dated February 23, 1998 convicting them under Section 324, 326 , 341 read with Section 34 of IPC and sentencing them to undergo rigorous imprisonment for two years each under Section 326 read with Section 34 of IPC, rigorous imprisonment for one year each under Section 324 read with Section 34 of IPC, rigorous imprisonment for three months each under Section 341 read with Section 34 of IPC. The substantive sentences were ordered to run concurrently. The accused persons were also directed to pay a fine of Rs. 1,000/- each under Section 326 read with Section 34 of IPC in default to undergo simple imprisonment for three months each. The conviction and sentence of the accused persons were confirmed in appeal by III Additional Sessions Judge, Kollam by judgment dated September 14, 2001 in Crl.Appeal No.73/1998. Crl.R.P.No.1510/01 & connected cases Page numbers 2. The case of the prosecution as shaped in evidence before the trial court was that on July 26, 1993 at about 6.30 pm accused 1 to 3 in furtherance of their common intention to cause hurt to PW3, defacto complainant, wrongfully restrained him in front of Mudavangal Bungalow near Valentine junction while he was proceeding in his bicycle through Thekkevilacheri of Mundackal village and that first accused cut him with a sword causing injuries to PW3 on the chest and on the face and second accused cut PW3 with a sword causing injuries on left ear and left cheek and third accused beat him with a stick on his back and that thereby committed the offences punishable under Section 341, 326, 324 read with Section 34 of IPC. 3. The accused persons on appearance before the trial court pleaded not guilty to a charge under Section 341, 326, 324 read with Section 34 of IPC. PWs 1 to 10 were examined and Exts.P1 to P6 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C., the accused persons denied the incident. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of evidence Crl.R.P.No.1510/01 & connected cases Page numbers found the revision petitioners guilty of the offences punishable under Section 324, 326, 341 read with Section 34 of IPC and convicted them thereunder and sentenced them as mentioned above which is confirmed in appeal. Accused persons have come up in revision challenging their conviction and sentence. 5. Crl.R.P.No.385/2002 is by the first accused. Crl.R.P.No.384/2002 is by the second accused and Crl.R.P.No.1510/2001 is by the third accused. 6. Heard the counsel for the revision petitioners and the learned Public Prosecutor. 7. The following questions arise for consideration : 1) Whether the conviction of the revision petitioners under Section 324, 326, 341 read with Section 34 of IPC can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.R.P.No.1510/01 & connected cases Page numbers Point No.1 8. PWs 1 to 10 were examined and Exts.P1 to P6 were marked on the side of the prosecution before the trial court. PW3 is the defacto complainant and the injured . He testified in terms of the prosecution case. I have gone through his evidence. Nothing was brought out during his cross examination to discredit his evidence. Further the doctor who treated him found corresponding injuries also. Therefore in my view the trial court as well as the lower appellate court is perfectly justified in believing his evidence. 9. Counsel for revision petitioners argued that as the independent witnesses PWs 1 , 2 and 5 have turned hostile, the uncorroborated version of PW3 cannot be believed. There is no substance in the above contention. The trial court as well as the lower appellate court has chosen to believe his evidence. On going through his evidence, I find no reason to come to a different conclusion. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in accepting his evidence. 10. PW4 is another eye witness to the incident. He supported Crl.R.P.No.1510/01 & connected cases Page numbers PW3 on all particular materials. Nothing was pointed out during his cross examination to show that he has any enmity towards the accused persons. Therefore, the trial court as well as the lower appellate court is right in believing his evidence. 11. PW6 is an attestor to scene mahazar Ext.P2. PW7 is the doctor who treated PW3 and issued the wound certificate Ext.P4. It is seen from Ext.P4 that PW3 sustained severe injuries on the chest as well as on the arm and that he was in the hospital for 23 days which shows that PW3 sustained grievous hurt as described under Clause eighthly of Section 320 of IPC punishable under Section 326 of IPC. 12. PW8 is the Head Constable who recorded the FI statement Ext.P8 and registered the case and prepared the body note. Ext.P3 is the FIR. PW9 is the Superintendent of District Hospital, Kollam who issued Ext.P5 discharge certificate. PW10 is the S.I. of Police, who laid the charge. 13. I have chosen to believe the evidence of PWs 3 and 4 regarding the incident. PW3 also sustained corresponding injuries as seen from Ext.P4, the wound certificate. Counsel for revision Crl.R.P.No.1510/01 & connected cases Page numbers petitioners argued that the injuries sustained by PW3 are not grievous injuries and that therefore charge under Section 326 will not lie against the accused persons. There is no substance in the above contention. Ext.P4 shows that accused sustained incised wound penetrating the chest on the right side of back of chest at the level of middle of medial border of scapular and near the spine cutting muscles and another incised wound 8x3x2 cms on the lower 1/3 of right forearm cutting the tendon and muscles. Ext.P5 discharge certificate shows that he was hospitalised for 23 days. Therefore, the trial court is perfectly justified in framing charge under Section 326 against the accused persons. 15. Counsel for revision petitioners argued that the doctor PW9 who treated PW3 did not find any injury on the face or left cheek which itself shows that the version of PWs 3 and 4 regarding the incident is not true. I am unable to agree. But the body note prepared by PW8 shows that there are injuries on the left ear, left cheek and back of chest and near the right scapular region which was prepared on 27-07-1993. Therefore it is quite probable that PW7 doctor would have omitted to notice those injuries. Therefore the above argument Crl.R.P.No.1510/01 & connected cases Page numbers advanced by the counsel for the revision petitioners has only to be rejected. 16. Another argument advanced by the counsel for the revision petitioners is that the weapon used in the incident was not recovered from the accused persons and that therefore the version of PWs 3 and 4 that PW3 was cut with a sword cannot be accepted. Merely because the weapons were not recovered, the case of the prosecution cannot be rejected. The injury sustained by PW3 shows that he has been cut with a sharp edged weapon which probablise the version of PWs 3 and 4 that PW3 was cut with a sword. For all these reasons, I find that the trial court as well as the lower appellate court is perfectly justified in convicting the accused persons under Sections 324, 326 and 341 read with Section 34 of IPC. Point No.2 17. Regarding the sentence, the accused persons were sentenced to undergo rigorous imprisonment for two years each under Section 326 read with Section 34 of IPC, to undergo rigorous imprisonment for one year each under Section 324 read with Section Crl.R.P.No.1510/01 & connected cases Page numbers 34 of IPC, to undergo rigorous imprisonment for three months each under Section 326 read with Section 34 of IPC. They were also directed to pay a fine of Rs.1,000/- each under Section 326 r/w Section 34 IPC. As regards the first accused, I confirm the sentence imposed by the trial court against the first accused as he has caused very serious injuries to PW3 . Regarding the second accused, PW7 the doctor did not find any injury on the cheek. The doctor noted only two injuries one on the chest and another on the arm both caused by first accused. As regards the third accused is concerned, the allegation was that he beat PW3 with a stick . But no corresponding injuries were found on PW3. Further the incident happened in 1993. Therefore a lenient view is taken and the substantive sentence of accused 2 and 3 is reduced to imprisonment till the rising of court and to pay a fine of Rs. 5000/- each , in default to undergo simple imprisonment for three months each under Section 326 of IPC read with Section 34 of IPC . Under Section 324 read with Section 34 of IPC, they are sentenced to pay a fine of Rs. 500/- each in default to undergo simple imprisonment for one month each. Under Section 341 read with Section 34 of IPC, accused 2 and 3 Crl.R.P.No.1510/01 & connected cases Page numbers are further sentenced to to pay a fine of Rs. 500/- each in default to undergo simple imprisonment for one month each. In the result, Crl.R.P.No.385/2002 filed by the first accused is dismissed confirming the conviction and sentence of the first accused. Crl.R.P.Nos.384/2002 and 1510/2001 filed by accused 2 and 3 are allowed in part. Their conviction under Section 324, 326, 341 read with Section 34 of IPC are confirmed. Their sentence is modified to the effect that they are sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 5000/- each in default to undergo simple imprisonment for three months each under Section 326 read with Section 34 of IPC. They are also sentenced to pay a fine of Rs. 500/- each under Section 324 read with Section 34 of IPC, in default to undergo simple imprisonment for one month each. They are further sentenced to pay a fine of Rs. 500/- each under Section 341 read with Section 34 of IPC, in default to undergo simple imprisonment for one month each. Revision petitioners shall surrender before the trial court on or before 30-12-2009 to receive the sentence. One month's time is granted for payment of fine. Fine amount, if any, deposited by the Crl.R.P.No.1510/01 & connected cases Page numbers accused persons before the trial court shall be adjusted towards the fine imposed and PW3 will be entitled to withdraw that amount towards compensation. Their bails bonds are cancelled. Fine amount, if realised, shall be paid to PW3, the defacto complainant, as compensation as provided under Section 357(1) Cr.P.C. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1510/01 & connected cases Page numbers