IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 26TH DAY OF AUGUST 2009/4TH BHADRA 1931 CRRP.No.750 of 2001 --------------------- CRA.393/1995 of ADDL.SESSIONS COURT, THALASSERY CC.135/1993 of J.M.F.C.-III(MOBILE), KANNUR ........ REVISION PETITIONERS/PETITIONERS: 1. NARAYANAN, S/O KORAN, COOLIE, SREEKANDAPURAM. 2. PURUSHOTHAMAN, S/O KORAN, DO. DO. BY ADVS.SMT.P.M.INDU SRI.GEORGE SEBASTIAN COMPLAINANT/RESPONDENT: STATE OF KERALA (SHO, SREEKANDAPURAM POLICE STATION) REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.B.JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-08-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Hema, J. ------------------------------------------- Crl.R.P.No.750 of 2001 ------------------------------------------- Dated this the 26th day of August, 2009 ORDER The revision petitioners are accused nos.1 and 2. They were charge-sheeted for offences under Sections 341, 323, 324 and 326 read with Section 34 of Indian Penal Code. After trial, they were convicted and sentenced to undergo rigorous imprisonment for fifteen days under Section 341 of Indian Penal Code, rigorous imprisonment for three months each under Sections 323 and 324 read with Section 34 of Indian Penal Code and rigorous imprisonment for one year under Section 326 read with Section 34 of Indian Penal Code. The sentences were ordered to run concurrently. 2. In appeal filed by them, Additional Sessions Court set aside the conviction and sentence passed against petitioner under Sections 341 and 324 read with Section 34 of Indian Penal Code. However, the conviction and sentence passed under Section 323 and 326 read with Section 34 of Indian Penal Code were CRRP 750/01 2 confirmed. The sentence imposed was reduced to rigorous imprisonment for six months under Section 326 of Indian Penal Code. The above conviction and sentence are challenged in this revision. 3. According to prosecution, on 06.09.1991 at about 1.30 p.m., both the accused, in furtherance of common intention, assaulted de facto complainant-PW1, while he was coming to his house from the shop and when he reached in front of the house of one Kunjiraman Nambiar, both the accused using sticks caused grievous injury (fracture to forearm) to PW1. Both the accused also beat PW1 with hands. 4. To prove the prosecution case, prosecution examined PWs 1 to 8 and marked Exts.P1 to P4. The accused did not adduce any evidence, but contended that this is a false case. Both the courts below analysed evidence of PWs 1 to 3, who are the injured and the eye-witnesses to the occurrence and also PW4, who is the wife of PW1, who had allegedly seen the accused going to their house with sticks after the incident. Medical evidence is also relied upon and it was found that the prosecution CRRP 750/01 3 proved its case beyond reasonable doubt. There is no case that both the accused, in furtherance of common intention, had beaten PW1 with hands and sticks. 5. Heard. I have gone through the records and the revision memo. As per the revision memo, lower court ought to have disbelieved the contradictory evidence of PWs 2 and 3, with regard to alleged incident. It is further contended that evidence of PW4, who is the wife of PW1, ought to have been disbelieved since she is an interested witness. On going through the evidence of PWs 1 to 3, I find that they have given a version consistent with the prosecution, even though there are some variations in the evidence regarding the actual incident. But, variations are minor in nature and those cannot be said to have affected the root of the prosecution case. 6. It is also argued that prosecution failed to prove that dangerous weapon was used in this case. The weapon alleged to have used to beat de facto complainant was not even recovered and no evidence is adduced regarding the nature of the weapon used. Therefore, the conviction entered against the accused CRRP 750/01 4 under Section 326 of Indian Penal Code is not sustainable, is the contention. 7. On going through the evidence, I find that PWs 1 to 3, who are occurrence witnesses, have consistently stated that accused had used sticks for beating PW1. Both the courts below have considered the alleged discrepancies in the prosecution case and evidence of PWs 1 to 4 and found that prosecution has proved the allegation that PW1 was beaten by accused 1 and 2 with hands and sticks. There is no perversity in such findings. 8. PW4 stated that accused were retreating from the scene of occurrence, carrying sticks. From the evidence of the doctor-PW5, it has come out that there was an allegation by PW1 while examined at 4.50 p.m. on 6.7.1991 about three hours of the incident that accused 1 and 2 had beaten with sticks and that injury could be caused as alleged. PW5 noticed contusion on the left forearm and pain on left side of chest and that there was a fracture of ulna on X-ray. 9. In such circumstances, the mere non-production of the weapon used by itself may not be sufficient to discard the CRRP 750/01 5 prosecution case. The evidence reveals that a stick, which was sufficient to cause a fracture to the arm, was used in this case and it can be stated to be a weapon, which can cause the injury, was not seized or produced. 10. Revision petitioners have also taken up a ground that the sentence is excessive. The sentence imposed under Sections 326 and 323 of Indian Penal Code was ordered to run concurrently. The sentence imposed under Section 326 of Indian Penal code by the Magistrate Court was to undergo rigorous imprisonment for one year but it was reduced to six months by the appellate court. I do not think that the said sentence is harsh or excessive and it calls for any interference. In the result, this revision petition is dismissed. (K.Hema, Judge) krs CRRP 750/01 6 K.Hema, J. -------------------------- Crl.R.P.No.750 of 2001 ---------------------------- ORDER 26th August, 2009