IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 Crl.Rev.Pet.No. 1341 of 2003 ----------------------------------------------- CRA.273/2001 of III ADDL. SESSIONS COURT, THRISSUR CC.590/1997 of JFCM, KUNNAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: MANI, W/O.KODANJERY SUKUMARAN, CHOVANNUR VILLAGE, KAVANAMCHITTOOR DESOM, TALAPPILLY TALUK. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT/RESPONDENT/COMPLAINANT & STATE: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 5657/2003 IN CRRP 1341/2003 DISMISSED 29.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1341 of 2003 -------------------------- ORDER Petitioner, the accused in C.C.No.590/1997 on the file of Judicial First Class Magistrate's Court, Kunnamkulam, was convicted and sentenced for the offences under Sections 447 and 326 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No.273/2001. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and though PW11, the Doctor, was examined and Exhibits P4 to P9 wound certificates were marked, Exhibits P4 to P9 would show that the CRRP 1341/03 2 injured sustained only super visual burns and were referred to Medical College Hospital and the treatment records at the Medical College Hospital were not produced and the Doctor who treated PWs 1 to 6 was not examined and in such circumstances, there is no evidence to prove that an offence under Section 326 of Indian Penal Code is committed. Learned counsel would also argue that from Exhibits P4 to P9 wound certificates, it cannot be said that the injured sustained any permanent disfiguration and on failure to examine the Doctor who treated PWs 1 to 6 at the Medical College Hospital, it should have been found that prosecution did not establish that an offence under Section 326 of Indian Penal Code was committed. Learned counsel argued that, according to the prosecution, acid was taken in MO1 plastic bottle and that acid was poured on PWs 1 to 6. PW9, the Investigating Officer, was examined. It was found that MO1 bottle contained holes and the prosecution case should not CRRP 1341/03 3 have been believed as acid could not be taken in a bottle having holes. The explanation offered by PW10, accepted by the courts below that the holes were originated subsequently, cannot be accepted. Learned counsel would therefore argue that conviction is not sustainable. Learned counsel finally submitted that considering the fact that the incident was in 1997, leniency be shown and at this distant point of time, petitioner may not be sent to prison. 4. Prosecution case is that on 19.4.1997 at about 6.30 p.m., petitioner trespassed into the courtyard of the house of PWs 1 to 6 carrying MO1 plastic bottle containing acid and poured it on PWs 1 to 6 and caused burns and permanent disfiguration on the face of PWs 1 and 2 and thereby committed the offences. 5. Petitioner pleaded not guilty. Prosecution examined eleven witnesses and marked nine exhibits and identified MO1 bottle. On the side of defence, CRRP 1341/03 4 PW11, the Doctor, was again examined as DW1 and Exhibit D1 wound certificate was marked. 6. Learned Magistrate accepted the evidence of PWs 1 to 6 and rejected the case of the petitioner that it was PW3 who poured acid on the petitioner and by accident, it fell on the grills and thereafter on the bodies of PWs 1 to 6, based on the evidence of DW1 and Exhibit D1 wound certificate and the attending circumstances. Learned Additional Sessions Judge also, on re- appreciation of evidence, confirmed that findings. 7. Though learned counsel vehemently argued that evidence of PWs 1 to 6 should not have been accepted in view of the intrinsic evidence and failure to establish a proper motive, on going through the evidence, I cannot agree with the submission. The actual reason for the petitioner to pour acid on the bodies of PWs 1 to 6 could only be disclosed by the petitioner. If there is no disclosure, PWs 1 to 6 could only imagine what CRRP 1341/03 5 prompted the petitioner to do this heinous act. According to PWs 1 to 6, Louis had entrusted a key to be handed over to the petitioner as she was not there. PW1 did not see when petitioner reached her house. Later, PW6, the sister of PW1, went there to hand over the key to the petitioner. Petitioner questioned PW6 for the delay, as she had reached the house earlier. After exchange of words, when the petitioner threatened PW6 that she will teach a lesson, PW6 ran towards her house and informed PWs 1 to 5. When they tried to get inside the house, petitioner reached there carrying MO1 bottle and poured acid on PWs 1 to 6 causing injuries. When PW1 was cross-examined, what was suggested to PW1 was that petitioner came there enquiring whether they got a broken chain of the petitioner and as the grills of the house was closed, petitioner was trying to get into the house and then PW3 poured acid on the petitioner, but it fell on the grills and only a small part fell on the body of the CRRP 1341/03 6 petitioner and after falling on the grills, acid fell on the bodies of PWs 1 to 6 and they sustained injuries. It is to prove the injuries sustained by the petitioner, DW1 was examined and Exhibit D1 wound certificate was marked. Evidence of DW1 with Exhibit D1 conclusively establish that though DW1, on examination of the petitioner, found that she sustained some injuries, it should have been caused by a fall and those injuries were not the result of pouring of acid as claimed by the petitioner. Even though the suggestion put to PW1 was that petitioner went there to find out whether they received a broken chain of the petitioner, when petitioner was questioned under Section 313 of Code of Criminal Procedure, she had an entirely different story. She stated that petitioner went to the house of PWs 1 to 6 to get the key entrusted there. According to the said version, at that time, they hit on the petitioner after catching hold of her hairs and in that process, her chain was CRRP 1341/03 7 broken. Later, petitioner came there to ascertain whether the broken chain was there. At that time, she was again beaten and they poured something taken in a vessel through the grills and it fell on the bodies of PWs 1 to 6 and sustained injuries. Therefore, as rightly found by the courts below, the defence case is proved to be false. 8. Evidence establish that PWs 1 to 6 sustained the injuries, recorded in Exhibits P4 to P9 wound certificates, when acid was poured on their bodies. In fact, even according to the suggestion put to PW1, PWs 1 to 6 sustained injuries when acid was poured on them. The only case is that acid was not poured by the petitioner, but by PW3 and it accidentally fell on PWs 1 to 6. Though petitioner claimed that a portion of the acid had fallen causing injuries to her, Exhibit D1, with the evidence of DW1, falsifies that case. In such circumstances, I find no reason to interfere with the findings of the courts below that it was the CRRP 1341/03 8 petitioner who poured acid on PWs 1 to 6, evidenced by Exhibits P4 to P9 respective wound certificates of PW3, PW1, PW2, PW4, PW5 and PW6. Though the evidence of PW11 is insufficient to establish the actual permanent disfigurement, learned Magistrate has recorded in the depositions itself that when PWs 1 and 2 were examined there were disfigurations on their faces. PW1 had pointed out the disfiguration and stated that the disfiguration was caused by the petitioner by pouring acid. That version of PW1 was not challenged in cross- examination. Therefore, though medical records were not produced to establish the period of treatment or the details of treatment, evidence of PW1 conclusively establishes that she sustained permanent disfiguration and it was caused when petitioner poured acid on her. Though learned counsel argued that as MO1 bottle, at the time of recording the evidence, contained holes and it is not possible to carry acid in a plastic bottle, CRRP 1341/03 9 much less in a plastic bottle with holes, evidence of PW9, the Investigating Officer, establishes that when MO1 bottle was produced in court, there was no holes. It may be that because the acid was stored in the bottle, after lapse of time, the holes developed. The property list also does not show when MO1 bottle was received in court, there were any holes in the bottle. In such circumstances, for the reason that MO1 bottle contained holes, when the evidence was recorded, it is not possible to hold that acid could not have been taken in MO1 bottle. 9. Evidence conclusively establish that petitioner trespassed into the courtyard of the house of PWs 1 to 6 and caused grievous hurt to PWs 1 and 2, evidenced by Exhibits P5 and P6 wound certificates and permanent disfiguration noted by the learned Magistrate. Hence, it is proved that petitioner committed offences under Sections 447 and 326 of Indian Penal Code. Though Exhibits P7 to CRRP 1341/03 10 P9 wound certificates, with the evidence of PWs 3 and 4 to 6, with the evidence of PW11, establish that petitioner voluntarily caused hurt to PWs 3 to 6 by pouring acid and therefore, it is clear that petitioner has also committed an offence under Section 324 of Indian Penal Code, she was not convicted for the offence. 10. Then the only question is regarding the sentence. Learned Magistrate sentenced the petitioner to rigorous imprisonment for three years for the offence under Section 326 of Indian Penal Code and rigorous imprisonment for three months for the offence under Section 447 of Indian Penal Code in addition to a compensation of Rs.10,000/- to PW1 and Rs.5,000/- to PW2 under Section 357(3) of Code of Criminal Procedure. Argument of the learned counsel is that the sentence awarded is excessive. considering the entire facts and circumstances of the case, I cannot agree with the learned counsel that petitioner is entitled to get any leniency. CRRP 1341/03 11 Misplaced sympathy would only be detrimental to the administration of criminal justice. Evidence establish that petitioner, for silly reason, poured acid on PWs 1 to 6 and caused permanent disfiguration to PWs 1 and 2. If the acid had fallen on the eyes, they would have become blind. In such circumstances, I find no reason to interfere with the sentence also. Revision fails and it is dismissed. Petitioner is directed to appear before Judicial First Class Magistrate, Kunnamkulam on 02.08.2010. Magistrate is directed to execute the sentence. 29th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1341/03 12 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1341/03 -------------------------- ORDER 29th June, 2010