IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.REV.PET.NO. 1774 OF 2009() ----------------------------------------------- CRA.709/2006 OF ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.686/2003 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED --------------------------------------------------------------------- VINOD, S/O. UNNI, KUNNATHULLY VEETTIL, PUTHOOR DESOM, KAIPARAMBU VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.V.C.MADHAVANKUTTY SMT.P.JAYALAKSHMI RESPONDENT(S): RESPONDENT/COMPLAINANT --------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1774 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of June, 2009 O R D E R -------------- Accused No.1 in C.C. No.686 of 2003 of court of Judicial First Class Magistrate, Chavakkad is before me in revision challenging his conviction as confirmed and sentence modified by the appellate court. 2. Petitioner along with two others faced trial before the learned Judicial First Class Magistrate, Chavakkad in C.C. No.686 of 2003 for offences punishable under Sections 341, 323 and 325 read with 34 of the Indian Penal Code (for short, “the Code”). Case is that on 6.7.2003 at about 9.00 a.m petitioner and accused Nos.2 and 3 in furtherance of their common intention wrongfully restrained P.W.1 and voluntarily caused hurt/grievous hurt by beating with hand and fisting on the chin. Prosecution examined P.Ws.1 to 7 and proved Exts.P1 to P4. Learned magistrate found that accused Nos.2 and 3 are not involved in the incident and acquitted them. Petitioner was found guilty, convicted and sentenced to undergo rigorous imprisonment for six months and payment of fine of Rs.2,000/- under Section 325 of the Code. He was acquitted of the charges under Secs.341 and 323 of the Code. In the appeal preferred by petitioner conviction was CRLL. R.P. No.1774 of 2009 -: 2 :- confirmed but sentence was modified as simple imprisonment for one month and fine of Rs.3,000/- with a default sentence. That judgment is under challenge in this revision. 3. Learned counsel contended that there is no evidence to prove the incident and that at any rate courts below did not take into account the discrepancy as to the place of occurrence. According to learned counsel conviction under Sec.325 of the Code is not warranted since the text of medical jurisprudence relied on by learned magistrate was not put to P.W.2 who examined P.W.1. 4. P.W2 examined P.W1 on 6.7.2003 at 10.30. a.m. and issued Ext.P2. Evidence would show that P.W.1 had suffered a double fracture on the mandible. Even if the text of medical jurisprudence relied on by learned magistrate is excluded, there is evidence of P.W.2 supported by Ext.P2 that P.W.1 had suffered grievous hurt. 5. According to the prosecution when P.W.1, injured and son were going along the ridge of paddy field petitioner and accused Nos.2 and 3 demanded them to pay Rs.150/- per day for allowing them to walk along the ridge of paddy field. P.W.1 offered to pay Rs.500/- per month. That was not appreciated by petitioner and accused Nos.2 and 3 and thereon the incident occurred. Petitioner fisted on CRLL. R.P. No.1774 of 2009 -: 3 :- the chin of P.W.1. When he fell down petitioner and accused Nos.2 and 3 again assaulted P.W.1. P.W. 3 gave similar evidence. P.W.2, medical officer examined P.W.1 and opined that the injury suffered by P.W.1 could be caused as alleged. 6. Courts below placed reliance on the evidence of P.Ws.1 and 3 regarding the incident. It is contended by learned counsel that in Ext.P4, mahazar for scene of occurrence the spot of incident is said to be road and premises but P.W.1 stated that incident was on the road. P.W.3 denied that he had told the Investigating Officer that the incident occurred while they were going along the road. Learned magistrate has taken note of the discrepancy and was of the view that it did not in any way affect the evidence of P.Ws.1 and 3 regarding the incident. Learned counsel for petitioner took me through the mahazar and evidence of P.Ws.1 and 3. I am not inclined to think that the discrepancy stated above affected veracity of evidence of P.Ws.1 and 3. There is no reason why I should disbelieve evidence of P.Ws.1 and 3. Their evidence gets corroboration from the evidence of P.W.2 to the extent that it was possible to cause injury by fisting in the manner stated by P.Ws.1 and 3. There is no reason to interfere with the conviction under Sec.325 of the Code. CRLL. R.P. No.1774 of 2009 -: 4 :- 7. Learned counsel for petitioner submitted that as per the information given to him petitioner got employment in Gulf and is working there. He was aged 31 years at the time of accident. In the circumstances counsel requested that leniency may be shown to him in the matter of sentence. 8. Learned Additional Sessions Judge while disposing of the appeal observed that the incident occurred on the spur of the moment without any premeditation. There was some wordy altercation between P.Ws.1 and 3 and the petitioner regarding right to walk along the ridge of the paddy field. It is in that connection that the incident occurred. Concededly no weapon has been used in the incident. In these circumstances I am not inclined to send the petitioner to the prison. At the same time the fact that P.W.1 suffered fracture at the hands of petitioner cannot be forgotten. He has to be compensated. Considering the nature of the injury suffered by P.W.1 as proved by the evidence of P.W.2, I am inclined to think that Rs.20,000/- will be sufficient compensation to P.W.1. Petitioner has to pay that amount within two months from this day and in case of default undergo simple imprisonment for two months. Resultantly, revision is allowed in part to the following extent: CRLL. R.P. No.1774 of 2009 -: 5 :- (i) Substantive sentence awarded to the petitioner by the appellate court is modified as simple imprisonment till rising of the court. (ii) Petitioner is directed to deposit Rs.20,000/- (Rupees Twenty thousand only) in the trial court for payment to P.W.1 as compensation under Section 357(3) of the Code of Criminal Procedure within two months from this day failing which he shall undergo simple imprisonment for two months. Petitioner shall appear in the trial court on 11.8.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv