IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2272 of 2006()
1. CHANDRA BABU
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.ANIL S.RAJ
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :04/07/2006
O R D E R
R. BASANT, J.
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Crl.R.P.No. 2272 of 2006
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Dated this the 4th day of July, 2006
O R D E R
This revision petition is filed against the concurrent judgment
of guilty, conviction and sentence in a prosecution under Section 324
I.P.C. The petitioner was acquitted of the offence under Section 294
(b) I.P.C.
2. The crux of the allegations is that on account of prior
animosity, at 7.30 p.m. on 15.3.2000, the accused attacked PW1, his
uncle, with a motor cycle chain and caused injuries to him.
Investigation commenced on the basis of Ext.P1 F.I. statement lodged
by PW1 when he was undergoing treatment in the hospital on
17.3.2000. It culminated with the final report submitted by PW5.
Consequent to the plea of not guilty raised by the petitioner,
prosecution examined PWs. 1 to 6 and proved Exts.P1 to P4. PW1 is
the victim and as stated earlier, Ext.P1 is the F.I. statement lodged by
him. PW2 is an eye witness, who had seen the occurrence and had
Crl.R.P.No. 2272 of 2006 2
taken the injured to the hospital. PW3 is the doctor, who examined PW1 at
8.35 p.m. on 15.3.2000 and issued Ext.P2 wound certificate. In the wound
certificate the assailant is named. The nature of weapons, with which the
injuries were inflicted, was also mentioned. PW4 is an attester to Ext.P3
scene mahazar. PWs. 5 and 6 are police officials, who had roles to play in
the registration of the crime and filing of the charge sheet after
investigation.
3. The accused took up a defence of total denial. According to him,
no incident as stated has taken place. He is implicated falsely with
vexatious motive on account of prior animosity. No defence evidence was
adduced.
4. The courts below concurrently came to the conclusion that the oral
evidence of PW1 can safely be accepted. They drew inspiration for the
oral evidence of PW1 from the ocular evidence given by PW2. The court
further reckoned the prompt statement of the alleged cause to PW3 doctor
recorded in Ext.P2 as affording inspiration for the evidence of PWs. 1 and
2. Ext.P1 F.I. statement, though lodged on 17.3.2000, was also taken into
account as another piece of evidence affording support to the oral evidence
Crl.R.P.No. 2272 of 2006 3
of PWs. 1 and 2. Accordingly the courts proceeded to pass the impugned
concurrent judgments finding the accused guilty of the offence under
Section 324 I.P.C.
5. The learned counsel for the petitioner has been heard. Various
contentions are urged by him. PW1 is interested, it is contended. Therefore
his evidence deserves to be rejected, it is argued. No person with his head
on his shoulders is likely to attack another unless there is some strain in the
relationship. Such strain in the relationship cannot be reckoned as
sufficient reason by itself to discard the evidence of the injured witness.
That would be a puerile approach tf appreciation of evidence. Ext.P1 is
belated. It was lodged only on 17.3.2000. This is the second contention. I
find absolutely no merit in this contention as PW1 cannot be held
responsible for the delay in the police reaching him and recording his F.I.
statement. In this context Ext.P2 wound certificate in which the alleged
cause is narrated to the doctor at 8.35 p.m. on the same day, the incident
having taken place at 7.30 p.m. , is there to afford convincing assurance to
the oral evidence of PW1. The criticism that Ext.P1 is belated pales into
insignificance in view of Ext.P2 wound certificate prepared by PW3
Crl.R.P.No. 2272 of 2006 4
doctor.
6. The evidence of PW2 corroborats the evidence of PW1. I have
been taken through the cross examination of PW2. I find no reason to
approach the evidence of PW2 with any amount of doubt, suspicion or
distrust. Ext.P1 shows that PW1 was talking to another person, one
Parameswaran by name. That Parameswaran was not examined, it is
contended. I find no reason to attach any crucial significance to the non-
examination of the said Parameswaran. No oblique motive is specifically
seen suggested as to why the prosecution should choose to withhold the
said Parameswaran and put up PW2 as a witness to the occurrence.
7. The material object has not been recovered, it is contended. The
prosecution took the stand that as the accused had disposed it of and hence
the material object – motor cycle chain – could not be recovered. Even in
Ext.P2 the weapon of offence is mentioned. Ext.P2 as well as the oral
evidence of the doctor shows that the injury could have been caused by a
motor cycle chain. In these circumstances nothing crucial turns upon the
inability of the prosecution to produce the material object used for
Crl.R.P.No. 2272 of 2006 5
commission of the offence.
8. It is crucial to note that the accused has taken up a defence of total
denial. There is not a whisper of a contention that the incident has taken
place in some other manner and the petitioner is the victim of aggression.
On an anxious re-evaluation of the entire inputs available, I find that the
conclusions of the courts below are absolutely justified and
unexceptionable. I find no reason at this third tier of litigation to interfere
with the concurrent conclusion that the evidence of PWs. 1 and 2 can be
believed and when believed their evidence does establish the offence under
Section 324 I.P.C. The challenge on merits must, in these circumstances,
fail.
9. The learned counsel for the petitioner then contends that the
sentence imposed is excessive. Leniency may be shown. The provisions of
the Probation of Offenders Act may be invoked, it is urged. The petitioner
is shown to be a person aged 39 years on the date of the offence. He is
shown to have attacked his uncle, PW1, with a motor cycle chain on
account of prior animosity in connection with property disputes. Though
Crl.R.P.No. 2272 of 2006 6
the accused is not shown to have any criminal antecedents, I am not
convinced that this is a fit case where the benevolent provisions of the
Probation of Offenders Act can be invoked. Leniency can be shown. But I
am certainly convinced that in a case like the instant one, imposition of a
substantive sentence of imprisonment is absolutely essential. Deterrence
in a case like this, where the petitioner is not shown to have any
criminal antecedents does not necessarily depend on the length of the
period that the offender spends behind the bars. An unreasonably long
period of time may be counter productive even. I am satisfied that the
sentence of imprisonment can be modified and reduced. The courts have
often been reminded of the need not to ignore the plight of the victim of
the crime. He deserves to be compensated. The sentence imposed does not
contain the component of reparation. In this view also the impugned
sentence warrants modification.
10. In the result:
(a) This revision petition is allowed in part.
(b) The impugned verdict of guilty and conviction under Section 324
I.P.C. are upheld.
Crl.R.P.No. 2272 of 2006 7
) But the sentence is modified and reduced. In supersession of the
sentence imposed on the petitioner by the courts below, he is sentenced to
undergo S.I. for a period of three months. He is further directed to pay an
amount of Rs.10,000/- as compensation under Section 357(3) Cr.P.C. and in
default to undergo S.I. for a period of two months.
11. The petitioner shall have time till 7.8.2006 to appear before the
learned Magistrate to serve the modified sentence hereby imposed. If he
does not appear before the learned Magistrate as directed, the learned
Magistrate shall thereafter proceed to execute the modified sentence hereby
imposed.
(R. BASANT)
tm Judge