IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1356 of 2002(A) -------------------------------------------- CRL.A.NO.45/1997 OF I ADDL. SESSIONS COURT, TRIVANDRUM, CC.NO.376/1994 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA. .................... PETITIONER/ APPELLANT: -------------------------------------- BHUVANENDRAN, S/O. KUNJUKRISHNAN, RESIDING AT KAKKAKUZHY LAKSHAM VEEDU COLONY, VENNIYOOR DESOM AND VILLAGE. BY ADVS. M/S. G.GOPALAKRISHNAN NAIR, R.BINDU (SASTHAMANGALAM). RESPONDENT/ RESPONDENT: -------------------------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 1356/2002-A: ORDER ON CRL.M.P.NO.7727/2002 IN CRL.R.P.NO.1356/2002 DISMISSED 30/03/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.1356 OF 2002 (A) ----------------------------------- Dated this the 30th day of March, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 326 of the Indian Penal Code. He was prosecuted for the offences punishable under Sections 323, 324 and 326 IPC on a charge laid by the S.I. of Police, Vizhingam. Negativing his plea of not guilty, after trial, the learned Magistrate found him guilty of the offence under Section 326 of IPC, and on conviction thereunder, he was sentenced to undergo rigorous imprisonment for one year. In appeal, the Sessions Judge confirmed the conviction, but modified the sentence to imprisonment for three months and to pay a fine of Rs.5,000/- with default term of simple imprisonment for three months more. Aggrieved by the conviction and sentence, as indicated above, questioning its legality, propriety and correctness, the CRL.R.P.1356/02 2 accused has preferred this revision. 2. The gist of the prosecution case is that, pursuant to a demand made by PW1, the defacto complainant, for repayment of an amount of Rs.100/- advanced as a loan to the accused, at about 7.30 p.m. on 20.4.1994, the accused attacked him with a firewood and struck a blow over his forehead, which resulted in bulging out of his right eye ball. PWs.2 and 3, close neighbours rushed to the spot hearing the alarm raised by the injured, and according to the prosecution, they also witnessed the assault. PW1 was taken to the hospital and a crime was registered while he underwent treatment at hospital. After completion of the investigation, charge was laid against the accused for the offences punishable under Sections 323, 324 and 326 of IPC. 3. The accused on appearance, pleaded not guilty to the charges levelled. Prosecution examined PWs.1 to 6 and got marked Exts.P1 to P6 to bring home his guilt. The accused, when questioned under Section 313 of the Cr.P.C., maintained his innocence. No defence evidence was adduced. The CRL.R.P.1356/02 3 learned Magistrate, after appreciating the evidence, found that the prosecution had established the guilt of the accused for the offence under Section 326 of IPC, and he was thereupon convicted of that offence and sentenced as indicated earlier. The appellate court confirmed the conviction, but modified the sentence. 4. I heard the learned counsel for the accused and also the learned Public Prosecutor. The learned counsel for the accused assailed the conviction contending that other than the evidence of the injured, PW1, there was nothing more in the prosecution evidence to prove the occurrence. Both PWs.2 and 3 had turned hostile to the prosecution, denying the witnessing of the occurrence. PW1, in his evidence, had categorically admitted that he regained consciousness, after sustaining the injuries, only three days later. So, much so, it is evident beyond the shadow of doubt that Ext.P1 F.I.Statement was not recorded from the injured as alleged by the prosecution, submits the counsel. Further more, it is contended that in appreciating the entire facts and circumstances involved, it is evident that even if the CRL.R.P.1356/02 4 prosecution case is believed in toto, the assault on the injured by the accused took place without any premeditation, perhaps, in a fit of anger, and getting hold of a firewood, the accused struck a blow on the injured. Since there was no intention to assault the injured, it is the submission of the counsel that the conviction under Section 326 of IPC, for which he was convicted cannot be sustained. The learned counsel also made a fervent plea for modification of the sentence. 5. I have examined the records of the case giving consideration to the submissions made by the counsel. The findings on facts entered by the inferior courts can be interfered in revision only if it is shown that the findings are perverse and not supported by the materials tendered in the case. Even if a different view is permissible on the materials produced, that would not enable the revisional court to supplement its view different from the view taken by the inferior courts, provided, such a view is also possible. The finding entered by the learned Magistrate after analysing the materials, which unerringly showed the culpability of the accused that he had assaulted the injured with a firewood and CRL.R.P.1356/02 5 caused him grievous hurt leading to his loss of right eye, it is seen is fully supported by the materials tendered by the prosecution. The finding so arrived, after re-appreciation of the evidence, is approved by the learned Sessions Judge, in appeal. No circumstance whatsoever had been brought to my notice to show that there is any infirmity in the finding so arrived, on the materials produced, by both the courts below concurrently. The medical evidence tendered in the case through the doctor, who had attended the injured coupled with Ext.P2 wound certificate issued by him, would show that the injured, consequent to the injuries suffered, had lost his right eye consequent to the assault in his forehead. He has suffered grievous hurt on assaulted with a firewood by the accused is amply proved by the materials produced in the case. F.I.Statement was not recorded from the injured, the challenge raised in revision, it is seen from the materials, was negatived by the courts below. The Police officer (PW6) who recorded his statement had given evidence that the statement was recorded from the injured. Apparently, there is no reason to doubt the evidence of the Police official, who had discharged his duty as a public servant. Conviction of the CRL.R.P.1356/02 6 accused, in the proved facts, for the offence under Section 326 IPC is not liable to be interfered with. 6. Now, with respect to the modification of sentence, urged for, I find that the appellate court has shown sufficient indulgence in favour of the accused. After having found that he was guilty of the offence punishable under Section 326 of IPC, the Sessions Judge, had reduced the sentence to imprisonment of three months directing him to pay a compensation of Rs.5,000/- with a default term of three months simple imprisonment. To say the least, such modification in sentence reducing the punishment passed by the trial court, was not warranted in view of the gravity of the offence proved against the accused. No further reduction of sentence is permissible in the given facts and circumstances of the case. Revision is devoid of merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.1356 OF 2002 (A) --------------------------------------------------------- O R D E R --------------------------------------------------------- 30th March, 2009