IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 Crl.Rev.Pet.No. 1293 of 2001() ------------------------------ {CR.A.116/1999 of I ADDL.SESSIONS COURT, ERNAKULAM IN CC.NO.628/1995 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA} .................... REVN. PETITIONER(S)/APPELLANTS/ACCUSED: ---------------------------------------------------------------------------- 1. JAMES, S/O.ALEYAS, KARIMARATHADATHIL, PIRAKKUNNAM KARA, NERYAMANGALAM. 2. JOY, S/O.ALEYAS, KARIMARATHADATHIL, PIRAKKUNNAM KARA, NEYAMANGALAM. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.1293 of 2001 ------------------------- Dated this the 10th day of February, 2009. O R D E R The accused, in C.C.No.628/95 on the file of the Judicial Magistrate of the First Class-II, Muvattupuzha, who have been convicted and sentenced for offences under Sections 323, 324, 326 and 427, read with Section 34 of the Indian Penal Code {for short 'the Code'}, have come up with this Criminal Revision Petition. 2. The case of the prosecution is that the accused, on account of previous enmity to PW.1, in furtherance of their common intention to cause grievous hurt to PW.1, had, on 11.6.1995, at about 3.30 PM, accosted PW.1 who was driving his auto rickshaw at a normal speed. 1st accused had caught hold of PW.1 and pulled him. 2nd accused had entered the auto rickshaw from the right side and had kicked PW.1 on his CRL.R.P.No.1293 of 2001 :: 2 :: abdomen. PW.1 lost control and the auto rickshaw capsized. As a result thereof, PW.1 sustained a fracture and other grievous injuries. PW.1 sustained a loss to the tune of Rs.5,000/-. The prosecution contended that the accused have committed the aforementioned offences. 3. Pws.1 to 9 were examined by the prosecution. PW.1 is the complainant and PW.2 is another auto rickshaw driver, who was present at the scene of occurrence. Pws.3 and 6 are eye witnesses. PW.4 was a witness to Ext.P6 scene mahazar. Ext.P5 is the discharge certificate issued by PW.8 doctor and Ext.P3 is the medical certificate issued by PW.5. PW.7 Head Constable had taken statement under Section 161 of the Code of Criminal Procedure from PW.1 and PW.8 doctor issued the discharge certificate of PW.1. PW.9 is the Investigating Officer, who conducted the investigation and laid the charge sheet. CRL.R.P.No.1293 of 2001 :: 3 :: 4. The suggestion made by the accused was to the effect that accused had entered the auto rickshaw and the same was driven by the driver, but later it had fallen into a gutter and had capsized. According to them, PW.1 sustained injuries thereby. PW.1 deposed that he was waiting in his auto rickshaw at the scene of occurrence, which was an auto rickshaw stand. The accused had come to him and wanted them to be taken to Alumkal. But, since the road to Alumkal was not good, he expressed his reluctance to take them. It seems, the accused did not take to this. While so, PW.3 one Chandran had come there and he wanted a trip to Thalakkode. Accordingly PW.3 entered the auto rickshaw and the auto rickshaw started proceeding towards east. 1st accused then ran towards him and caught hold of his shirt, 2nd accused had come from the other side and had kicked him on his right side. As a CRL.R.P.No.1293 of 2001 :: 4 :: result of this, he fell down from the driver's seat. The vehicle lost control and it capsized. PW.1 fell and his leg happened to come under the auto rickshaw and therefore, he suffered the fracture. He was examined by PW.5, without much delay after the incident is alleged to have taken place and the doctor issued Ext.P3 medical certificate which shows a fracture on his right leg. Nobody had a case that PW.1 had suffered the fracture otherwise than in the course of driving the auto rickshaw on the date of the incident. The dispute was as to whether the vehicle had capsized on account of the intervention of the accused or whether it was a natural accident, which the vehicle had met with, without any overt act on the part of the accused precipitating the same. PW.2 is another auto rickshaw driver. According to him, he had seen 1st accused catching hold of PW.1 by the collar when the vehicle CRL.R.P.No.1293 of 2001 :: 5 :: was in loco motion. He deposed that he did not give a statement to the effect that 2nd accused kicked PW.1 from the right side. But, he had affirmed that the dispute arose on account of PW.1 refusing to take the trip, in spite of a demand by accused 1 and 2. Even in cross-examination, he affirmed that 1st accused caught hold of the collar of PW.1 when the vehicle was in loco motion. He further affirmed in the re-examination that according to him, the vehicle had capsized because the 2nd accused had jumped out of the same. 5. PW.3, Chandran, did not support the prosecution case at all. He was declared hostile. 6. PW.4 had accepted his signature in the mahazar prepared at the scene of occurrence. Pw.6 another eye witness spoke about 3rd accused entering the vehicle of PW.1, the vehicle slowly moving forward and accused 1 and 2 accosting the driver of the vehicle. CRL.R.P.No.1293 of 2001 :: 6 :: He further spoke about the 2nd accused kicking PW.1 and the vehicle immediately capsizing. The presence of accused 1 and 2 at the scene of occurrence and a dispute between PW.1 and 1st accused was again spoken to by him in cross-examination. He also spoke about accused 1 and 2 entering into the auto rickshaw. He was a witness to the vehicle capsizing. He further affirmed the fact that he was standing near to the scene of occurrence and he was a natural eye witness. 7. There is no reason to disbelieve the testimony of Pw.6. In fact, no such suggestion is also made to disbelieve his testimony. There is only a vague suggestion that he was not a witness to the incident at all. 8. The evidence of PW.1 and the evidence of PW.2 to a substantial extent and strengthened by the evidence of PW.6 show that a dispute arose between CRL.R.P.No.1293 of 2001 :: 7 :: PW.1 and accused on the crucial date. There is no reason to disbelieve the testimony of Pws.1 and 6 and insofar as PW.6 is concerned, there is not even a suggestion of any previous enmity between PW.6 and accused 1 and 2, or any other reason why PW.6 does not speak the truth. That, PW.1 has sustained a fracture on his right leg is not a matter in dispute. It will, therefore, have to be concluded that PW.1 sustained a grievous hurt as a result of an incident which happened on 11.6.1995 wherein accused 1 and 2 picked up a quarrel with PW.1 and accosted him from the stand and he fell from the auto rickshaw; that this resulted in the vehicle capsizing and further resulting in PW.1 getting trapped beneath the vehicle thereby suffering a fracture on his right leg. 9. I am of the view that the conclusion arrived at, as aforementioned by the court below, in this regard CRL.R.P.No.1293 of 2001 :: 8 :: on an appreciation of the evidence of Pws.1, 2 and 6, along with the documentary evidence, does not warrant any interference. 10. It has also come out in evidence that the auto rickshaw suffered damage on account of the overt acts on the part of the accused. 11. PW.1 suffered a grievous hurt on account of the overt acts on the part of the accused. In the said incident, PW.1 has also suffered other injuries, which amounts to hurt within the meaning of Section 319 of the Code, as is certified in Ext.P3. The conviction of the accused under Sections 323 and 427 of the Code, therefore, does not warrant any interference. 12. Learned counsel for the petitioners submits that the courts below have committed an illegality in convicting the accused for the offence under Section 326 of the Code. It is true that PW.1 CRL.R.P.No.1293 of 2001 :: 9 :: suffered a grievous hurt and though he suffered a fracture on account of the vehicle capsizing, the same had happened on account of accused 1 and 2 accosting PW.1, who was driving the auto rickshaw and 2nd accused kicking PW.1 from the right side. The accused are therefore, responsible for the grievous hurt suffered by PW.1 and in my view, they should be treated as having voluntarily caused grievous hurt to PW.1. But, I am in agreement with the learned counsel for the petitioner that Section 326 of the Code is not attracted, because the said grievous hurt caused to PW.1, is not caused by means of any instrument being used by the accused as a weapon of offence, which is likely to cause death. The courts below went wrong in finding that Section 326 of the Code is attracted on the premise that the iron board installed in the auto rickshaw had come into contact with the right leg of PW.1, thereby CRL.R.P.No.1293 of 2001 :: 10 :: resulting in a fracture. The approach in this regard is not correct. It is not a case where the accused persons deployed the iron bar as to cause a grievous hurt on PW.1. The vehicle had capsized and the iron bar, which is found on the upholstery of the auto rickshaw, came to hit on PW.1 on his right leg. It is not a case where the weapon was employed by the accused to cause the grievous hurt. 13. In my view, the accused are liable to be punished under Section 325 and not under Section 326 of the Code. 14. Learned counsel for the petitioners further submits that it is true that the vehicle had capsized. This resulted in PW.1 suffering a fracture on his leg. There was no intention to cause such a grievous hurt. What had taken place was an accident, no doubt precipitated by the accused. It is further submitted CRL.R.P.No.1293 of 2001 :: 11 :: that these aspects may be taken into account and therefore the substantial imprisonment is really not called for, in the facts and circumstance of the case. I heard learned Public Prosecutor on this aspect also. I find force in the said submission. 15. In the result, the Criminal Revision Petition is allowed in part. The conviction of the accused under Sections 323 and 324 of the Code are confirmed. The conviction of the accused under Section 326 of the Code is set aside and instead, they are convicted for the offence under Section 325 of the Code. The accused are directed to undergo simple imprisonment till the rising of the court under Section 323 Code and each of the accused are directed to pay a fine of Rs.1,000/- with a default sentence of six months' simple imprisonment. The accused are also sentenced to simple imprisonment till the rising of the court for CRL.R.P.No.1293 of 2001 :: 12 :: the offence under Section 324 of the Code. Each of them are also directed to pay a fine of Rs.5,000/- u/s. 324, with a default sentence of six months' simple imprisonment. The accused are sentenced to undergo simple imprisonment till the rising of the court under Section 325 of the Code and each of them are directed to pay a fine of Rs.10,000/- for the said offence, with a default sentence of six months' simple imprisonment. Sentences as regards the offence under Section 427 as imposed by the trial court shall remain in tact. Sentences of imprisonment need be suffered only concurrently. Out of the fine amount, if deposited by each of the accused, an amount of Rs.15,000/- (viz., totalling Rs.30,000/-) shall be paid as compensation to PW.1 under Section 357(3) of the Cr.P.C. The accused shall appear before the trial court on 23.03.2009 to suffer the sentence of imprisonment. CRL.R.P.No.1293 of 2001 :: 13 :: They are given two months' time to remit the fine, for each one of the sentences, as aforesaid. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge