IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2227 of 2009()
1. RAJAN, S/O.MAYANDI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2227 of 2009
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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/