IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 229 of 2002()
1. JOHN @ KOCHUNNY, S/O. CHANDY,
... Petitioner
2. CHANDY @ ANIYAN, S/O. JOHN,
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.T.I.ABDUL SALAM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/07/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.299 OF 2003
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Dated 14th July 2010
O R D E R
Second petitioner is the second
accused in C.C.76/1992 on the file of
Judicial First Class Magistrate-II,
Kottayam. He was convicted and sentenced
for the offence under Section 324 of
Indian Penal Code along with first
petitioner/first accused. Though they
challenged the conviction and sentence
before Sessions Court, Kottayam in
Crl.A.138/1997, learned Additional Sessions
Judge on re-appreciation of evidence
confirmed the conviction and sentence and
dismissed the appeal. It is challenged in
the revision. When the revision was
pending, first revision petitioner died on
CRRP 229/02 2
11/1/2005. Consequently charge as against the
first revision petitioner has abated. The
question which survives for consideration is
only whether the conviction and sentence for
the offence under Section 324 read with Section
34 of Indian Penal Code as against the second
petitioner is legal and proper.
2. Prosecution case is that on 1/10/1988 at about 8.45 p.m, due to the previous enmity of the accused to PW5,
petitioners poured acid on PW2, while he was
standing near the gate of house of PW5 and
thereby committed the offence under Sections
308 and 326 read with Section 34 of Indian
Penal Code. Though learned Magistrate committed
the case to Sessions court, Kottayam which was
taken on file as S.C.29/1989, learned Sessions
Judge finding that an offence under Section 308
of Indian Penal Code exclusively triable by the
CRRP 229/02 3
Sessions Court is not involved, sent back the
records to Chief Judicial Magistrate for trial
after, framing the charge for the offence under
Section 326 read with Section 34 of Indian
Penal Code. Learned Chief Judicial Magistrate
made over the case to Judicial First Class
Magistrate-II, Kottayam. Learned Magistrate on
the evidence of Pws.1 to 11 and Exts.P1 to P6 ,
called upon the petitioner to enter on his
defence and adduce evidence. Accused then
examined DW1 and marked Ext.D1. Learned
Magistrate on the evidence found that the
accused poured acid on PW2 in furtherance of
their common intention and voluntarily caused
hurt and thereby committed the offence under
Section 324 read with Section 34 of Indian
Penal Code. Accused were sentenced to simple
imprisonment for one month. Learned Sessions
Judge re-appreciated the evidence and confirmed
CRRP 229/02 4
the conviction. Argument of the learned
counsel appearing for the second revision
petitioner is that evidence was not properly
appreciated by the courts below and evidence of
DW1 with Ext.D1 should have been accepted by
the courts below and it should have been found
that PW2 sustained injuries not from the hands
of the accused but when PW2 and others poured
acid on the house of the accused while causing
damage to the house and in such circumstances,
conviction is not sustainable.
3. Evidence of PW7, the doctor with
Ext.P3 wound certificate establish that at 9
p.m on 1/10/1988, immediately after the
incident, PW2 was examined by the doctor from
District Hospital, Kottayam and the doctor
noted burns on his face, left shoulder, left
arm, left ear, neck and left eye. Left cornea
was found hazy. Considering the condition of
CRRP 229/02 5
the patient, he was referred to Medical
College, Hospital. Alleged cause of injury
disclosed to the doctor was sustained when acid
was poured at about 8.55 p.m at Erettu
Kadavu. Ext.P6 discharge certificate issued
from the Medical College Hospital, Kottayam
proved by the evidence of PW11, who identified
the signature of Professor of Ophthalmology
who was not then in a service, establish that
PW2 was treated in the hospital as an inpatient
from 1/10/1988 to 24/10/1988. Evidence of PW7
with Ext.P3 wound certificate establish that
PW2 sustained hurt and the hurt was caused when
acid was poured on PW2. Even suggestion given
to PW7 the doctor was that those injuries were
caused, when acid fell on PW2, evidently in
tune with the defence case that PW2 and others
attempted to cause damage to the house of
accused and during that acts, acid was poured
CRRP 229/02 6
which accidentally fell on PW2. Therefore, it
is conclusively proved that PW2 sustained hurt
when acid fell on PW2. The only question is,
whether it was poured by the accused or it had
accidentally fallen on PW2 when PW2 and others,
were committing damages to the house of the
accused as canvassed by the defence.
4. I have gone through the entire
evidence in the light of the defence raised by
the petitioners. As rightly found by the
learned Magistrate and learned Sessions Judge,
it is absolutely clear from the evidence that
PW2 did not sustain injuries as canvassed by
the accused. Though crime No.396/1988 was
registered in respect of the incident in which
damages were caused to the house of the
accused, there is no evidence to establish that
it was in that incident PW2 sustained injury.
Evidence of injured and Pws.3 and 4 the eye
CRRP 229/02 7
witnesses were properly appreciated by the
courts below and I find no reason to differ
with the findings based on appreciation of
evidence. Evidence conclusively establish that
accused voluntarily caused hurt to PW2 by
pouring acid which is corrosive substance on
him in furtherance of their common intention.
Therefore, conviction of the accused for the
offence under Section 324 read with Section 34
of Indian Penal Code is perfectly legal and
warrants no interference.
5. Then the only question is regarding
the sentence. Argument of the learned counsel
appearing for the second revision petitioner is
that incident was in 1988 and at this distant
point of time, second revision petitioner may
not be sent to prison and PW2 is now no more
and therefore, he is disabled from compounding
the offence and as evidence establish that PW2
CRRP 229/02 8
sustained only simple burns with no deformity
in the interest of justice sentence may be
modified to fine.
6. Unfortunately prosecution did not
adduce the evidence, which should have been
adduced. PW2 the injured has not given
evidence that he sustained any deformity
consequent to the burn sustained. PW7 the
doctor had only seen PW2 on the date of the
incident and referred him to Medical College.
Therefore, PW7 is not in a position to give the
details of the treatment or the consequence of
the injuries. Though PW11 was examined, he did
not treat PW2 and only identified the signature
to formally prove Ext.P6 discharge certificate.
Learned Magistrate has also not recorded that
when PW2 was examined he could find any
deformity on PW2. Ordinarily, it would not have
been omitted to be taken note of by the learned
CRRP 229/02 9
Magistrate if there was any deformity.
Considering the fact that the incident was in
1988 and there is no evidence to prove that PW2
suffered any deformity and the threat of
imprisonment was hanging over the head of the
petitioner for the last more than two decades,
interest of justice will be met, if the
sentence is modified to imprisonment till
rising of court and compensation of Rs.15,000/-
to be paid to PW2 or is legal heirs. Sentence
is accordingly modified.
Revision petition is allowed in part.
Conviction of the second petitioner/second
accused in C.C.76/92 on the file of Judicial
First Class Magistrate-II, Koyyayam for the
offence under Section 324 read with Section 34
of Indian Penal Code is confirmed. Sentence
is modified. In supersession of the sentence
awarded by the learned Magistrate and confirmed
CRRP 229/02 10
by learned Sessions Judge, second petitioner
is sentenced to imprisonment till rising of
court and compensation of Rs,15,000/- (Rupees
Fifteen thousand only) and in default simple
imprisonment for one month. Second petitioner
is directed to appear before the Judicial First
Class Magistrate-II, Kottayam on 30/8/2010.
Learned Magistrate is directed to execute the
sentence.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.