IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 16TH DAY OF JULY 2009/25TH ASHADHA 1931 CRRP.No. 555 of 2002 -------------------- CRA.146/1999 of II ADDL.SESSIONS COURT,PALAKKAD CC.35/1996 of J.M.F.C.-III,PALAKKAD ...... PETITIONER/APPELLANT/2ND ACCUSED: P.KUTTAPPAN, S/O.PAZHANIMALA, AGED 61, MUTHUKULAM, ELAKUTHANPARA, MALAMPUZHA, PALAKKADU. BY ADVS.SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN COMPLAINANT/RESPONDENT/COMPLAINAT: STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MALAMPUZHA POLICE STATION THROUGH THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-07-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Hema, J. ------------------------------------------- Crl.R.P.No.555 of 2002 ------------------------------------------- Dated this the 16th day of July, 2009 ORDER Petitioner was the second accused in a case before Magistrate Court. His daughter was first accused. They were charge sheeted for offences under Sections 324 and 326 of Indian Penal Code. After trial, first accused was acquitted and petitioner (accused no.2) was convicted and sentenced. In appeal, conviction was confirmed but the sentence was reduced to undergo simple imprisonment for three months instead of six months and there was no interference in the order relating to compensation under Section 357(3) of Code of Criminal Procedure. The conviction and sentence are challenged in this revision. 2. According to prosecution, the incident occurred on 27.10.1995 at about 8.30 a.m. from the property of the first accused. PW1 who is the nephew of accused was attacked with a chopper by first accused. PW1 sustained grievous injury on the CRRP 555/02 2 ear by the cut and both accused allegedly committed offences in furtherance of common intention. 3. The prosecution examined PWs 1 to 11 and marked Exts.P1 to P7 and MOs 1 to 4. Both the courts below found that prosecution established its case through evidence of PW1 against petitioner. Relying upon the evidence of PWs 1 to 3 and the medical evidence tendered by PW7 both the courts below found that petitioner committed the offence. 4. Learned counsel for petitioner argued that the injured has given an exaggerated version in court. Originally, there were four accused as per first information statement and a crime was registered against four persons who are the father and 3 daughters, but on investigation names of 3rd and 4th accused were deleted. At the time of evidence, prosecution witnesses PWs 2 and 3 did not implicate first accused in the crime. 5. PW1 did not show to doctor the injuries allegedly sustained by beating with wooden reaper, it is revealed from evidence. Still, first accused was in the array of accused but she was acquitted by the court below. Therefore, no reliance was CRRP 555/02 3 placed on the evidence of PWs 1 to 3 as against the first accused, it is submitted. The evidence given by the prosecution witnesses is only an exaggerated version implicating the petitioner, it is submitted. 6. Learned Public Prosecutor argued that there were four accused originally but first accused was convicted only on finding that the version given by the witnesses against petitioner is believable, which is corroborated by medical evidence. On going through the records, I find that there is evidence to show that PW1 sustained injury of considerable nature on the ear which could be caused by a chopper MO1. The said chopper was identified by the witnesses as the weapon used for commission of offence. 7. Evidence of PWs 1 to 3 clearly proves the commission of offence by first accused. For the mere reason that witnesses PWs 2 and 3 did not speak about involvement of first accused in the crime, it cannot be held that their version regarding the role of petitioner in the offence is falsehood. The lower court evaluated evidence and only ascertained portion of the evidence CRRP 555/02 4 which is reliable and acted upon the same. 8. Only because three more accused were implicated by witnesses, on the facts and circumstances of the case, it will not be proper to reject the evidence relating to the involvement of petitioner in the offence. Both the courts below have rightly acted upon the evidence adduced to hold that petitioner cut PW1 with a chopper-MO1 to inflict the injury on the ear and thereby he voluntarily caused hurt to PW1 by means of dangerous weapon-MO1. There is nothing to show that the said finding is wrong or perverse. Hence, no interference is called for in the question of conviction. 9. Learned counsel for accused argued that the sentence awarded is excessive and that the incident happened as early as in 1995, about 15 years back and that petitioner is aged 70 years now. Therefore, some leniency may be shown0 in the case of sentence, it is submitted. It is also submitted that petitioner is not involved in any other offence and he is prepared to pay compensation to PW1. On hearing both sides, considering the facts stated above, I find that the sentence can be modified by CRRP 555/02 5 ordering petitioner to pay compensation. Hence, the following order is passed: 1. The conviction passed against the petitioner under Section 324 of Indian Penal Code is confirmed. 2. The sentence is modified and petitioner is sentenced to undergo imprisonment till rising of the court and he is directed to pay compensation of ` 30,000/- to PW1 under Section 357(3) of Code of Criminal Procedure. This is in supersession of the sentence passed by the appellate court. This revision petition is partly allowed. (K.Hema, Judge) krs CRRP 555/02 6 K.Hema, J. -------------------------- Crl.R.P.No.555 of 2002 ---------------------------- ORDER 16th July, 2009