IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.Rev.Pet.No. 1455 of 2001(B) --------------------------------------- CRA.130/1997 of ADDL.SESSIONS COURT, THALASSERY CC.103/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- C.V.BALAKRISHNAN, S/O.AMBU NAMBIAR, P.O.NADUVIL, KUDIYANMALA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT/RESPONDENT/COMPLAINANT : ------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.K.M.ENEEPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1455 of 2001(B) ORDER ON CRL.M.P.NO.6873 OF 2001 IN CRL.R.P.NO.1455 OF 2001 DISMISSED 24.09.2008 SD/- THOMAS P.JOSEPH, JUDGE -TRUE COPY- P.A. TO JUDGE pac THOMAS P. JOSEPH, J -------------------------- CRL. R.P.NO. 1455 OF 2001 --------------------------------- Dated this the 24th day of September, 2008 O R D E R Revision Petitioner stands convicted by the Trial Court for the offence punishable under Section 326 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs. 5,000/-. His appeal was dismissed by learned Sessions Judge. Hence, this Revision. 2. Learned counsel for Revision Petitioner submitted that the prosecution has not placed before court the truth as to how the incident originated, developed and culminated. He submitted that though independent evidence was available, prosecution has handpicked only PW2 who is none other than the nephew of defacto complainant. Learned counsel submitted that evidence of PWs. 1 and 2 is not reliable. 3. Case is that on 7.6.92 at about 7.30 p.m on the public road near the house of PW3, sister of the defacto complainant, Revision Petitioner assaulted PW1 with MO1, iron rod. Evidence of PWs. 6 and 7 and Exts. P3 and P4 show that PW1 was admitted in the hospital on 7.6.92 at about 8.45 p.m with lacerated wound CRL. R.P.NO. 1455 OF 2001 -2- above left eye brow, abrasion on right shoulder and an undisplaced fracture of upper end of left Tibia. PW1 gave evidence regarding the alleged incident and identified MO1, weapon of offence. He claimed that he was carrying a torch at the time of the incident and there was also sufficient moon light to identify the assailant. PW2, nephew of PW1 claimed that he was coming along with PW1 when the incident occurred. PW3, sister of PW1 residing a bit away from the place of occurrence came to the scene hearing the cry of PWs.1 and 2 and found PW1 lying wounded. PW4 also came there and found PW1 lying wounded. Mos. 2 and 3 are the clothes which PW1 was at the time of incident which PW5 produced before the police. PW8 is the Head Constable who prepared Ext. P1, F.I. Statement and registered the case. PW9 is the Sub Inspector who investigated the case. On 9.6.92 he prepared Ext. P6, scene mahazar and took MO1 to custody from the scene. In cross examination he stated that MO1 was sent to the court one month after the incident and till then, he had kept it in his safe custody. 4. It is true that only PWs. 1 and 2 gave evidence regarding the alleged incident and going by evidence of PW3, there are other houses in between the place of occurrence and her own house. PW3 herself stated that the incident took place nearer the house of CRL. R.P.NO. 1455 OF 2001 -3- Abdulrahiman but the doors of that house were remaining closed. PW9 had questioned some of the neighbours. There is no evidence to show that any other neighbour had seen the incident but he was kept back. Ext. P3 shows that at the earliest point of time PW1 had claimed that he sustained injuries at the hands of Balakrishnan (who is none than the Revision Petitioner). 5. It is true that in Ext. P3, wound certificate issued by PW6 weapon of offence is stated as a 'stick' while MO1 is a spiral iron rod. PWs. 6 and 7 were questioned whether the injuries noted by them on PW1 could be caused with MO1. They did not rule out the possibility. PW6 stated in cross examination that there was no external injury corresponding to the fracture. It is also to be remembered that the incident occurred on 7.6.1992 at about 7.30 p.m. but PW9 prepared scene mahazar (Ext. P6) only on 9.6.92 and is said to have seized MO1, iron rod from the scene of occurrence. The house of PW3, sister of PW1 is situated nearby. But that does not mean that MO1 was planted at the scene of occurrence. PW2 has identified MO1 as the weapon of offence. 6. I have gone through the evidence of the witnesses. It is true that PW8 stated that the intimation received at the police station was that PW1 and Revision Petitioner suffered injuries in an CRL. R.P.NO. 1455 OF 2001 -4- incident and were admitted in the hospital. Apart from that answer, there was not even a suggestion that any case was registered against the Revision Petitioner. For the reason that an intimation in that way was given by the Medical officer, evidence of PWs. 1 and 2 cannot be discarded. There is evidence to show that PW1 suffered grievous hurt at the hand of Revision Petitioner with deadly weapon. There is no reason to interfere with the conviction of the Revision Petitioner for offence punishable under Section 326 of IPC. 7. So far as sentence imposed on the Revision Petitioner is concerned, even as according to PW1, the motive was a verbal altercation between him and Revision Petitioner concerning payment of Rupees Forty Five (Rs. 45/-). Revision Petitioner is not shown to be involved in any other case. Incident occurred more than 16 years back. I am inclined to think that it is not necessary to send the Revision Petitioner to the jail at this distant point of time, also taking into account the facts and circumstances of the case. At the same time, PW1 who suffered grievous hurt has to be adequately compensated. He has undergone treatment in the hospital till 20.6.92. Learned counsel submitted that Revision Petitioner is an agriculturist. In the circumstances, Revision Petitioner shall pay Rs. 15,000/- as compensation to PW1. CRL. R.P.NO. 1455 OF 2001 -5- Resultantly, Revision Petition is allowed in part in the following lines: 1. The substantive sentence awarded to the Revision Petitioner is modified as Simple Imprisonment till the rising of the court. 2. Revision Petitioner is directed to deposit in the Trial Court Rs. 15,000/- (Rupees Fifteen thousand only) for payment to PW1 as compensation within two months from this day failing which, he shall undergo Simple Imprisonment for two months. Revision Petitioner shall surrender in the Trial Court on 26.11.2008 to receive the sentence. Bail bond executed by the Revision Petitioner will stand cancelled. THOMAS P. JOSEPH, JUDGE. vkm