IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 Crl.Rev.Pet.No. 3180 of 2008() ----------------------------------------- CRA.264/2005 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM CC.838/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED ---------------------------- JOSEPH, S/O.POULI, VARUVILAKOM VEEDU, PALLITHURA, VIZHINJAM DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENTS: RESPONDENT/COMPLAINANT --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3180 OF 2008 ............................................ DATED THIS THE 18th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for offence under Section 332 of IPC and sentenced to undergo simple imprisonment for three months and a fine of Rs.1000/-. Prosecution case is that PW1 and PW5, the police constables attached to the Vizhinjam Police Station were on duty at the No Man's land, Vizhinjam on 4.8.1999 and at about 5.45 pm, petitioner was found proceeding towards the No Man's land and when he was questioned he stated that he has come there to answer the call of nature and he started to proceed towards the area where muslims reside and it was prevented by PW5, because of communal tension prevailing at that period and then petitioner fisted on his face and also bite on his right hand and thereby caused hurt. PW5 was later examined by PW6, the Assistant Civil Surgeon of Government Hospital, Neyyattinkara and prepared Ext.P2 wound certificate. After recording Ext.P1 F.I.Statement of PW5, the crime was registered. After completing the investigation, charge was laid for the offence under Section 294(b) and 332 of IPC. Petitioner pleaded not guilty. 2. Learned Magistrate, on the evidence of Pws 1 to 6 and Exts.A1 to A4 found the petitioner not guilty of the offence under CRRP 3180/2008 2 Section 294(b) and acquitted him of the said offence. He was found guilty and was convicted and sentenced for the offence under Section 332 of IPC. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A. 264 of 2005. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision filed under Section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. Learned counsel made available the copies of the relevant exhibits and evidence. 4. Learned counsel appearing for petitioner vehemently argued that though petitioner was convicted for the offence under Section 332 of IPC, there is no evidence to prove that Pw1 and PW5 were on duty at that time and therefore the ingredients of the offence under Section 332 of IPC was not established. It was argued that evidence of PW5 shows that PW5 did not know the name of the assailant when he was examined by PW6 the Doctor and Ext.P2 wound certificate with the evidence of PW6 establish that he was examined by the Doctor only at 11.05 pm on that night and if the evidence of PW5 is to be believed, even at that time, he was not aware of the name of assailant and Ext.P1 F.I Statement was recorded at 6.45 pm, which CRRP 3180/2008 3 shows that the name of accused is shown in the F.I.R and F.I. Statement and if that be so, the F.I.Statement and F.I.R were created later and therefore courts below should not have relied on the prosecution case at all. Learned counsel also argued that petitioner had gone there only to answer the call of nature and the case has been foisted and therefore the conviction is not sustainable. Learned counsel finally argued that in any case the sentence awarded is excessive and as the offence under Section 332 of IPC is punishable with fine, sentence may be modified. 5. Learned Public Prosecutor submitted that trial court and appellate court appreciated the evidence in the proper perspective and appreciation of evidence was not perverse and there is no reason to interfere with the conviction and sentence. 6. Though it was argued that there is no evidence to prove that PW1 and PW5 were on official duty at No Man's land, Vizhinjam at about 5.45 pm on 4.8.1999, evidence of PW1 and PW5 establish that they were on duty at the No Man's land. Trial court and appellate court accepted their evidence. I do not find any reason to interfere with that actual finding. If that be so, their evidence establish that Pws 1 and 5 were on official duty at about 5.45 pm on 4.8.1999 at No Man's land, Vizhinjam. 7. The fact that PW5 sustained the injury is conclusively proved CRRP 3180/2008 4 by the evidence of PW6, the Doctor, corroborated by Ext.P2 wound certificate. Ext.P2 wound certificate with the evidence of PW6 establish that PW5 sustained an injury on the dorsal of his right wrist where there was swelling and a bite mark with contusion. There was also tenderness on the right side of the chest. The said evidence corroborates the version of PW5 and PW1 that PW5 sustained the injury at No Man's land on 4.8.1999 at about 5.45 pm. 8. Then the only question is whether the injury was inflicted by petitioner as found by courts below. Though learned counsel argued that evidence of PW2 establish that he did not know the name of petitioner, when he was examined by the Doctor at 11.10 pm and therefore Ext.P1 F.I.Statement could have been created only thereafter as the name of the assailant is shown therein, I do not find any reason to interfere with the findings of courts below on that ground. Evidently PW5 was only attempting to wriggle out of the failure to show the name of the assailant in Ext.P2 wound certificate. There is no reason to disbelieve the evidence of PW5 corroborated by the evidence of PW1 on that aspect. Evidence establish that petitioner voluntarily caused hurt to PW5, while PW1 and PW5 were on official duty at No Man's land. Therefore conviction of the petitioner for the offence under Section 332 of IPC is perfectly in order. 9. Then the only question is regarding the sentence. Section CRRP 3180/2008 5 332 of Indian Penal Code provides for a punishment of imprisonment for a term which may extend to three years or with fine or both. The incident was on 4.8.1999. There is no case that petitioner was involved in any other offence of similar nature. In such circumstances, interest of justice will be met, if the substantive sentence is modified to fine with default sentence. Revision is therefore allowed in part. While confirming the conviction of petitioner for the offence under Section 332 IPC, sentence is modified to a fine of Rs.3000/- and in default, simple imprisonment for three months. Petitioner is directed to pay the fine within one month. M.SASIDHARAN NAMBIAR, JUDGE lgk/-