IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.Rev.Pet.No. 3269 of 2008() ------------------------------ CRA.523/2006 of ADDITIONAL SESSIONS COURT, ERNAKULAM CC.1012/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- VARGHESE, AGED 66, S/O.VARKEY, EDAPPATTU VEEDU, VALAKOM KARA, VALAKOM VILLAGE. BY ADV. SRI.C.P.UDAYABHANU RESPONDENT(S): COMPLAINANT AND STATE -------------------------------------------------- 1. STATE OF KERALA, REP. BY S.I. OF POLICE, MUVATTUPUZHA POLICE STATION, MUVATTUPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3269 OF 2008 =========================== Dated this the 6th day of January,2009 ORDER Revision petitioner is the first accused in C.C.1012/2000 on the file of Judicial First Class Magistrate, Muvattupuzha. The charge against the petitioner and with his wife the second accused was that they committed the offences punishable under section 323 and 326 read with section 34 of Indian Penal Code. Prosecution case was that due to the dispute relating to a way, at about 9.30 a.m on 3.7.2000 in furtherance of their common intention the accused attacked PW1 and revision petitioner caused injury to his nose by hitting with M01 marble piece as evidenced by Ext.P2 wound certificate and thereby committed the offences. The accused pleaded not guilty. Learned Magistrate on the evidence of Pws.1 to 10 Ext.P1 to P7 and M01 and Exts.D1 and D2 portions of the statement of Pws.2 and 4 recorded under section 161 of Code of CRRP 3269/2008 2 Criminal Procedure on the side of the defence, found revision petitioner guilty of the offence under section 326 and convicted and sentenced him to rigorous imprisonment for two years in addition to a fine of Rs.5000/-. Second accused was acquitted. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.523/2006. Learned Additional Sessions Judge on reappreciation of evidence found that the offence committed is not under section 326 IPC but only under section 325 IPC and set aside the conviction for the offence under section 326 IPC and convicted him for the offence under section 325 of Indian Penal Code. He was sentenced to rigorous imprisonment for one year in addition to a fine of Rs.5000/- and in default simple imprisonment for six months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the revision petitioner vehemently argued that courts below did CRRP 3269/2008 3 not properly appreciate the evidence and should have found that revision petitioner did not commit the offence. It was argued that attempt of PW1 was to create a new pathway encroaching the property of the revision petitioner and that too on the rear side of the kitchen of his house and the inconsistency in the evidence was not properly appreciated. It was also argued that C.C.1013/2000 was registered against PW1 for the injuries inflicted on the accused and in the nature of the evidence courts below should have found that prosecution did not establish the offence beyond all reasonable doubt. 4. Learned Public Prosecutor submitted that though petitioner was convicted for the offence under section 326 IPC, learned Sessions Judge modified the conviction to one under section 325 IPC on the failure of the prosecution to establish an offence as provided under section 320 of Indian Penal Code and after proper appreciation of evidence of Pws. 1 and 2 corroborated by PW4 courts below found that the petitioner inflicted hurt on PW1 with M01, a dangerous weapon and CRRP 3269/2008 4 therefore conviction of revision petitioner for the offence under section 325 of I.P.C is perfectly legal and warrants no interference. 5. Though learned counsel vehemently argued that courts below did not properly appreciate the evidence, on going through the judgments of the learned Magistrate and learned Sessions Judge, I cannot agree with the submission of the learned counsel appearing for the revision petitioner that evidence was not properly appreciated.Apart from the injured PW1, PW2 an independent witness who was named even in Ext.P1 First Information Statement was examined. No material contradiction as such was pointed out. Moreover, PW4 another independent eye witness also supported the prosecution case and corroborated the evidence of PW1. The courts below on proper appreciation found that it was the revision petitioner who inflicted the injury on PW1. Evidence of PW6 the doctor corroborated by Ext.P2 wound certificate establish the hurt caused to PW1. Evidence of PW7 the doctor with Ext.P3 wound certificate further establish the hurt inflicted on PW1. In such circumstance, I find no CRRP 3269/2008 5 reason to interfere with the conviction of the revision petitioner for the offence under section 325 IPC. 6.Then the question is regarding the sentence. Section 325 of IPC provides a sentence of imprisonment which may extent to 7 years in addition to fine. Learned Additional Sessions Judge awarded a sentence of rigorous imprisonment for one year in addition to a fine of Rs.5000/-. Learned counsel argued that revision petitioner is aged 66 years as seen from the judgment of the appellate court and considering the entire facts and circumstances of the case, the substantive sentence may be reduced and petitioner may be directed to pay compensation to the injured PW1. Considering the fact that the incident had taken place on 3.7.2000 and the threat of prosecution was hanging over the head of the revision petitioner for the last more than 8 years and the fact that revision petitioner is aged 66 years, interest of justice will be met if the sentence is modified with sufficient compensation to PW1 the injured. Learned counsel appearing for the revision CRRP 3269/2008 6 petitioner undertook that revision petitioner will deposit the compensation on or before the date fixed by the court and will undergo the sentence thereafter. Revision is allowed in part. Conviction of the revision petitioner for the offence under section 325 IPC is confirmed. Sentence awarded by the Sessions Judge is set aside. Revision petitioner is sentenced to imprisonment till rising of court and a compensation of Rs.18,000/- to be paid to PW1 under section357(3) of Code of Criminal Procedure. Revision petitioner is directed to appear before the Judicial First Class Magistrate on 6.2.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006