IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2227 of 2009() ------------------------------ AGAINST THE ORDER DATED 28/03/2009 IN CRRP 111 of 2006 IN CRA.389/2006 of II ADDL. SESSIONS COURT, PALAKKAD CC.49/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- RAJAN, S/O.MAYANDI POOTHAMANNIL VEEDU, THOLANUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2227 of 2009 --------------------------------------- Dated this 10th day of August 2009 ORDER Petitioner faced trial in the court of learned Judicial Magistrate of First Class-1, Palakkad in C.C.No.49 of 2004 for offence punishable under sections 323 and 326 of the Penal Code (for short, “the Code”). Case is that on 29-09-2003 at about 8.30 p.m petitioner voluntarily caused hurt/grievous hurt to PWs.2 and 3 beating with MO1, a stick. On 21-06-2005 learned magistrate framed charge against petitioner for offences punishable under section 323 and 324 of the Code. On 03-01-2006, charge under section 324 was altered to one under section 326 of the Code for allegedly causing grievous hurt to PW3. Learned magistrate found that petitioner committed offences punishable under section 323 and 324 of the Code, convicted and sentenced him to undergo imprisonment for various periods and payment of fine. Petitioner was acquitted of the charges under section 326 of the Code. Against the conviction and sentence petitioner filed criminal appeal No.389 of 2006 while, acquittal of petitioner for the offence under 326 was challenged by the defacto complainant/PW2 in criminal R.P No.111 of 2006. Learned Additional Sessions Judge, Palakkad dismissed the criminal revision and appeal by a common judgment. Petitioner is aggrieved by his conviction and sentence as aforesaid and has preferred this revision. Learned counsel states that Crl.R.P.No.2227 of 2009 2 there is no reliable evidence to prove the alleged incident. I heard learned public prosecutor as well. 2. PW1 examined PW3 at Government Hospital on 29-09-2003 at about 10p.m and issued Ext.P1. That evidence revealed that PW3 sustained contusion on left wrist with restricted movement and injury on the left index finger. PW3 gave the history that she was assaulted by Rajan (petitioner) with stick. Ext.P2 is the case sheet of PW3 summoned from the district hospital. That document was proved through PW1 to prove that PW3 had suffered fracture of the left wrist. PW1 however admitted that he had not seen the X-ray film. He is not an orthopedician. He would say that the X-ray was seen by another doctor who had treated PW3. That doctor was not examined and hence, learned magistrate refused to find that PW3 suffered grievous hurt. That finding has been confirmed by learned Additional Sessions Judge also. PW5 examined PW2 ,defacto complainant on 30-09-2003 at about 5.45 p.m and issued Ext.P4. PW2 had complaint of pain. 3. Prosecution examined PWs.2 to 4 to prove the alleged incident. PW2, defacto complainant stated that on the relevant day and time while he was returning home from the shop of one Chandran, petitioner assaulted him with stick. He however claimed that MO1 was not that stick. Hearing his cry PW3 came to the spot. Petitioner assaulted her also. PW3 also gave similar evidence and identified Crl.R.P.No.2227 of 2009 3 MO1. It is the further case of defacto complainant/PW2 that on hearing their alarm one Sundari (PW4) and Ponni reached the scene of occurrence and on their coming petitioner left the place leaving the stick at the place of occurrence. PW4 claimed to have seen the incident. Learned magistrate did not accept her evidence and going by Ext.P1 the first information statement given by PW2 and his evidence there is no possibility of PW4 witnessing the incident since it is on hearing his cry that PW4 is said to have reached the place of occurrence from her house. PW8 investigated the case and prepared Ext.P5 mahazar for scene of occurrence. MO1 was taken to custody as per Ext.P5. 4. It is true that PW2, defacto complainant came to the hospital for examination only on 30-09-2003 at about 5.45.p.m though the alleged incident was on 29-09-2003 at about 8.30 p.m. PW2 has an explanation that he brought his wife (PW3) to the hospital the same day and went home. The next day when he felt pain he came to the hospital. At any rate in Ext.P1, PW3 is seen to have told PW1 on the day of incident at about 10p.m that she was assaulted by petitioner with stick. I have gone through the evidence and find no reason to disbelieve PWs.2 and 3. Their evidence gets corroboration from Exts.P1 and P4 and evidence of PW1 as well. There is no reason to interfere with the conviction of petitioner for offences punishable under sections Crl.R.P.No.2227 of 2009 4 323 and 324 of the Code. 5. It is submitted by learned counsel that sentence awarded to the petitioner is excessive. Learned counsel submits that petitioner is not involved in any other case and that leniency may be shown to him. Even as per the case of prosecution, the motive for the assault is that defacto complainant (PW2) who was till then purchasing grocery items from the shop of petitioner, shifted to the shop of Chandran and that enraged petitioner. Having regard to the facts and circumstances of the case I am inclined to think that it is not necessary to detain petitioner behind the bars. At the same time Pws.2 and 3 who suffered hurt cannot be forgotten. Having regard to the injuries suffered by PWs. 2 and 3 I am inclined to think that petitioner has to pay Rs.8000/- as compensation to PW3 and Rs..1500/- as compensation to PW2. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner for offences punishable under sections 323 and 324 of the Code is modified as simple imprisonment till rising of the court to run concurrently. 2. The sentence of fine awarded under section 324 of the Code is set aside. Instead, petitioner is directed to deposit in the trial court for payment to PWs.2 and 3 Rs.9500/- (Rupees Nine Thousand Five Hundred Only) by way of compensation under section 357(3) Crl.R.P.No.2227 of 2009 5 of the Code of Criminal Procedure on or before 25-09-2009 failing which petitioner has to undergo simple imprisonment for four months. 3. Out of the compensation if deposited, Rs.8000/- will be paid to PW3 and Rs.1500/- to PW2. 4. Petitioner shall appear in the trial court on 26-09-2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 26-09-2009. THOMAS P JOSEPH, JUDGE Sbna/