IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 Crl.Rev.Pet.No. 401 of 2001(B) ----------------------------- CRL.A.NO.208/97 OF II ADDITIONAL SESSIONS JUDGE, PALAKKAD C.C.NO.267/1993 OF J.F.C.M-I, PALAKKAD REVN. PETITIONERS:APPELLANTS/ACCUSED 1 & 3 --------------------- 1. CHANDRAN, S/O.KANDACHAMI, EDACODE, ELAPULLY. 2. KRISHNAN, S/O.MUNIYAN, KANNUKAD, ELAPPULLY. BY ADV. SRI.CHANDRAN (PARTY) RESPONDENT:RESPONDENT/COMPLAINANT --------------- STATE OF KERALA REP. BY ITS SUB INSPECTOR OF POLICE, KASABA POLICE STATION IN CRIME NO.4/93. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.401 of 2001 ------------------------------------- Dated this the 8th day of July, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty and conviction in a prosecution for offences punishable under Sections 323 and 324 I.P.C. The appellate court had modified the sentence and the petitioners/accused (they are accused Nos.1 and 3) now face a sentence of S.I for a period of one and 3 months respectively under Sections 323 and 324 r/w 34 I.P.C. 2. The crux of the allegations against the petitioners is that at about 5 p.m on 04.11.1993 in front of the house of PW1 accused persons, 3 in numbers, including the petitioners herein and the absconding 2nd accused, in furtherance of their common intention attacked PW1 with a granite stone and caused injuries to him. The accused had allegedly indulged in such culpable acts in furtherance of their common intention. The 3rd accused, it is alleged, had slapped PW1. 3. According to the prosecution, the incident occurred in front of the house of PW1. A lorry loaded with hay had hit on the Crl.R.P No.401 of 2001 2 compound wall of the house of PW1. The compound wall was damaged. PW3, the sister of PW1 raised objection and insisted that the lorry should not leave before provision is made to compensate for the loss suffered. When she was involved in a quarrel with the driver of the lorry, the accused persons, 3 in number, allegedly came to the scene. By then PW1 also reached the scene. The accused persons tried to intervene in the dispute between the driver of the lorry and PW1. This was opposed by PW1. Enraged by the conduct of PW1, the accused persons allegedly indulged in the contumacious and culpable acts. 4. The victim/PW1 was immediately taken to the doctor. PW6, the doctor examined him and issued Ext.P3 wound certificate on the same evening. Name of all the 3 accused persons are mentioned clearly in the wound certificate. The wound certificate shows that 3 external injuries, 2 lacerated wounds and a swelling were suffered by PW1. While in the hospital, PW1 gave Ext.P1 F.I statement to PW7, who had reached the hospital on receipt of Ext.P4 intimation from the duty doctor. On the basis of Ext.P1 F.I statement, Ext.P5 F.I.R was registered by PW8. Investigation was completed and final Crl.R.P No.401 of 2001 3 report was filed by PW9. PWs 1, 2, 3 and 5 had allegedly witnessed the occurrence proper. PW4 is an attestor to Ext.P2 scene mahazar prepared by the police. Under Ext.P2 scene mahazar, the stone/weapon allegedly used for the commission of the offence was seized by the Investigating Officer. 5. The learned Magistrate took cognizance on the basis of a final report. The accused appeared and denied the offences alleged against him. Thereupon the prosecution examined PWs 1 to 9 and proved Exts.P1 to P5. PW1 the victim as also PWs 2 and 3 supported the case of the prosecution fully. But PW5 turned hostile to the prosecution completely. No other eye witnesses were examined. 6. The accused took the stand in the course of the trial that they were innocent. They took up a defence of total denial. No defence evidence was adduced. 7. The courts below on an anxious consideration of the oral evidence of PWs 1 to 3 came to the conclusion that their evidence can be believed and that their evidence when believed establishes the offences punishable under Sections 323 and 324 I.P.C against the revision petitioners. Accordingly they proceeded to pass the impugned concurrent judgments. Crl.R.P No.401 of 2001 4 8. Called upon to explain the nature of the challenge which the petitioners want to mount against the impugned concurrent verdict of guilty, conviction and sentence, the learned counsel for the petitioners assails the impugned judgments on the following grounds. (i) The courts below erred in placing reliance on the oral evidence of PWs 1 to 3. (ii) The courts below erred in coming to the conclusion that at any rate the offence under Section 324 I.P.C has been established; (iii) The sentence imposed is at any rate excessive. 9. Primarily we have the oral evidence of PWs 1 to 3 about the incident proper. PW1 is the victim. His version is eminently supported by the contemporaneous statement made by him to the doctor-PW6 and recorded by the doctor in Ext.P3 wound certificate. Names of all the accused persons are specifically shown in Ext.P3 wound certificate as the assailants. Ext.P1 F.I statement which was lodged before PW7 on 05.11.1993 does also eminently support the present version of PWs 1 to 3. PW5 had of course turned hostile. The driver and the cleaner of the vehicle who were allegedly involved in a Crl.R.P No.401 of 2001 5 quarrel with PW1 had not been examined. Nay, they have not even been cited. Though there are indications to suggest that many persons had witnessed the occurrence, not one witness is examined other than interested PW1/victim and his 2 sisters. In these circumstances the counsel contends that reliance should not have placed on the interested testimony of PWs 1 to 3. 10. PWs 1 to 3 had given evidence about the incident. The presence of PW1 is proved convincingly by the injuries suffered by him as also his prompt statements in Exts.P1 and P3. In these circumstances, the competence of PW1 to depose as an eye witness cannot possibly be disputed. 11. PW3, Eliyamma, even the F.I statement shows, had raised objections against the lorry leaving the scene of occurrence after causing damage to the compound wall of her house. Her presence is clearly indicated from the contents of the F.I statement Ext.P1. In these circumstances, her presence at the scene of the crime cannot also be possibly doubted or suspected. 12. PWs 1 and 3 are interested in the sense that PW1 is the injured and PW3 is the sister of the injured. But such interest which the victim or his close relatives may have in the Crl.R.P No.401 of 2001 6 successful prosecution of the case cannot persuade any prudent mind to reject such oral testimony. It is true that the lorry driver and cleaner have not been examined nor had they even been cited as witnesses. We further note that though admittedly many persons - thousands, according to one witness, were present at the scene of occurrence, no one other than PWs 2 and 3, close relatives of PW1 have been examined. But as noted earlier, there is no reason to doubt or suspect the version of PWs 1 to 3. I am, in these circumstances, satisfied notwithstanding the fact that the lorry driver and cleaner or any other independent witnesses have not been examined,, that examination of PWs 1 to 3 is sufficient to come to a conclusion in favour of the prosecution in this case. I am satisfied that the oral evidence of PWs 1 and 3, which is duly supported by the oral evidence of PW2 as also the contents of the wound certificate Ext.P3 and the F.I statement Ext.P1 can safely be accepted. The courts below according to me have committed no error whatsoever in choosing to accept and act upon the oral evidence of PWs 1 to 3. At this third tier of criminal litigation and conscious of the nature and quality of the revisional jurisdiction of superintendence and correction, I am not at all persuaded to interfere with the Crl.R.P No.401 of 2001 7 concurrent finding of fact by the courts below that reliance can safely be placed on the oral evidence of PWs 1 to 3. The challenge raised on the first ground must, in these circumstances, fail. 13. Ground No.(ii) : The stone in question - the weapon of offence, has not been produced. I have been taken through the oral evidence of PWs 1 to 3. I do note that their evidence does not also help this Court to come to any definite conclusion about the nature, size, dimensions and other details of the said stone/weapon of offence. The offence under Section 324 I.P.C will be attracted only if the injury is inflicted with a dangerous weapon of the nature specified in Section 324 I.P.C. The weapon has not been produced. In Ext.P1 scene mahazar we do not get a clear and sufficient description of the weapon. The oral evidence of PWs 1 to 3 also shows that there is no sufficient and clear description of the weapon to persuade any Court to come to a conclusion that the said weapon can be held to be a weapon answering the description of a dangerous weapon in Section 324 I.P.C. I have looked at the nature of the injuries described in Ext.P3. No safe inference can be drawn from the nature of injuries described in Ext.P3 that the weapon used for infliction of Crl.R.P No.401 of 2001 8 those injuries must have been one answering the description of dangerous weapon in Section 324 I.P.C. I am, in these circumstances, satisfied that there is no sufficient and safe data to authentically conclude that the weapon of offence can be held to be a dangerous weapon. The mere fact that it is a stone or that it is a granite stone is according to me not sufficient in the absence of better evidence to conclude that the said weapon was a dangerous weapon under Section 324 I.P.C. The challenge on this ground succeeds to the above extent. 14. Ground No.(iii): The learned counsel for the petitioner submits that, at any rate, the sentence may be modified and reduced. I have altered the conviction under Sections 324 and 323 I.P.C. In the facts and circumstances of the case, I am not persuaded to agree that the substantive sentence of imprisonment need be avoided altogether. But I am satisfied, considering the totality of circumstances including the elapse of a period of about 16 years as also the relatively simple nature of the injuries suffered, that a lenient view can be taken on the question of sentence. But it will have to be zealously ensured that the victim/defacto complainant/PW1 is adequately compensated. A lenient substantive sentence of imprisonment Crl.R.P No.401 of 2001 9 coupled with appropriate direction for payment of compensation shall, I am satisfied, serve the interests of justice eminently in the facts and circumstances of this case. The challenge against the sentence succeeds to the above extent. 15. In the result: (a) This Crl.R.P is allowed in part; (b) The impugned verdict of guilty and conviction of the revision petitioners are confirmed. But the conviction under Section 324 I.P.C is set aside; (c) The sentence imposed on the petitioners is modified and reduced. In supersession of the sentence imposed on the petitioners by the courts below both accused/petitioners are sentenced to undergo substantive sentence of imprisonment till rising of Court. The 1st accused is further directed to pay an amount of Rs.5,000/- (Rupees Five thousand only) as compensation and the 2nd accused is directed to pay an amount of Rs.3,000/- (Rupees Three thousand only) as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of 30 days each. If the amounts are realised, they shall be released forthwith to the victim/defacto complainant/PW1 as compensation. Crl.R.P No.401 of 2001 10 16. The petitioners shall have time till 31.08.09 to appear before the learned Magistrate and suffer the modified sentence hereby imposed. The modified sentence hereby imposed shall not be executed till that date. On or before 31.08.09, the petitioners shall appear and their sureties shall produce them before the learned Magistrate for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-