IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2744 of 2009()
1. M.C.KUNHIRAMAN NAMBIAR,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY THE
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2744 of 2009
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Dated this the 28th day of August, 2009.
ORDER
Concurrent finding entered by the courts below that petitioner voluntarily
caused hurt to the defacto complainant on 8.11.2001 at about 4.30 p.m. while
traveling in a bus by beating with an umbrella, described as a deadly weapon is
under challenge in this revision. Petitioner faced trial in the court of learned
Judicial First Class Magistrate, Thalassery in C.C.No.17 of 2002 for offence
punishable under Section 324 of the Indian Penal Code (for short, “the Code”).
Case is that while PW2, defacto complainant was traveling in a bus and when it
reached Chundaparambu petitioner who was also traveling in that bus
assaulted PW2 with an umbrella. Enimity on account of the property dispute is
said to be the reason for the alleged assault.
2. PW1 is said to be a witness to the incident but did not support the
prosecution. PW2, defacto complainant gave evidence in support of the
prosecution and stated about the incident. He identified MO1 as the weapon of
offence. PWs 3 and 5 are attestors in Ext.P3, mahazr for the scene of
occurrence. Umbrella allegedly used in the incident is said to have been seized
from the bus as per Ext.P3. PW6 is an attestor in Ext.P4, mahazar for seizure of
shirt PW2 was wearing at the relevant time. PW5 is an attestor in Ext.P5, body
mahazar of the bus involved. PW8 recorded the first information statement of
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PW2. PW9 registered the case and PW10 investigated it. PW4 examined
PW2 and issued Ext.P2. There was a lacerated wound on the forehead of PW2.
He came with the history that he was assaulted with an umbrella while traveling
in Prasanthi bus on 8.11.2001 at about 4.30 p.m. From the above evidence
learned magistrate concluded that petitioner voluntarily caused hurt to PW2.
Petitioner was sentenced to pay fine of Rs.3,000/- with a direction that out of
fine if realized Rs.2,000/- will be given to PW2 as compensation. It is
contended by learned counsel that the conviction of petitioner cannot be
sustained. There is no supporting evidence for the version of PW2. There is
discrepancy as to the alleged seizure of MO1 from the bus.
3. Learned counsel has taken me through the evidence of prosecution
witnesses. As per the evidence of PW2 he had taken umbrella involved in the
incident to the hospital where he handed over the same to the police. But as per
Ext.P3, seizure mahazar the umbrella was seized from the bus itself in which
the alleged incident occurred. There is therefore some discrepancy as to how
the umbrella was seized by the police. But that discrepancy is only as regards
seizure of the umbrella and cannot affect the incident proper. There is evidence
of PW2 that petitioner assaulted him with MO1. That evidence gets
corroboration from Ext.P2 and evidence of PW4 regarding the injuries suffered
by PW2. It is seen that to PW4 also PW2 had stated the cause of injury as due
to assault with umbrella while traveling in the bus. On going through the
judgments under challenge and hearing learned counsel I do not find reason to
disbelieve PW2 regarding the incident.
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4. However the question whether conviction under Section 324 of the
Code can be sustained is required to be considered. Under Section 324 of the
Code, when hurt is caused by any instrument of shooting, stabbing or cutting or
any instrument which if used as weapon of offence is likely to cause death,
among other things stated therein would amount to offence punishable under
Section 324 of the Code. Evidently MO1, umbrella is not an instrument for
shooting, stabbing or cutting. Then the next question is whether MO1 if used as
a weapon of offence is likely to cause death. That depends on the nature of
evidence let in. In this case it is seen from the evidence of PW4, doctor that
MO1 was not even shown to him. The expression “is likely to cause death”
must relate to the use of the weapon. It is true that with reference to the cause
of injury it is stated in Ext.P2 that it is by hitting with umbrella and PW4, doctor
said that the injury could be caused as alleged. That evidence of PW4 is not
sufficient to hold that MO1 if used as a weapon of offence is likely to cause
death. In the absence of such evidence it is not possible to conclude that the
injury could be caused with MO1 and hence offence under Section 324 of the
Code will not stand. Therefore conviction of petitioner for offence punishable
under Section 324 of the Code has to be converted as for offence punishable
under Section 323 of that Code.
5. Having found that offence punishable is under Section 323 of the
Code what remained for consideration is the sentence to be imposed. It is not
disputed that the parties are related and the incident occurred on account of long
standing property dispute between the parties. Even as per the version of PW2
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there were several litigations between them. Taking into consideration these
aspects I am satisfied that sentence can be modified as fine of Rs.1,000/-. Out
of the fine if realized Rs.750/- will be paid to PW2 as compensation.
Resultantly this revision petition is allowed in part to the following extent:
i. Conviction of petitioner for offence punishable under Section
324 of the Code is altered to Section 323 of that Code.
ii. Sentence is modified as fine of Rs.1,000/-(Rupees one
thousand only) and in default of payment petitioner has to undergo simple
imprisonment for one month. Petitioner is granted one month’s time to deposit
fine in the trial court.
iii. It is directed that out of fine if realized, Rs.750/- (Rupees
Seven hundred and fifty only) will be paid to PW2 as compensation.
Petitioner shall appear in the trial court on 3.10.2009 to receive
default sentence in case fine as above stated is not deposited.
THOMAS P.JOSEPH,
Judge.
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