IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 928 of 1999()
1. REVI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.A.X.VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.B.KOSHY
Dated :27/07/2007
O R D E R
J.B. KOSHY, J.
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Crl.R.P. NO. 928 of 1999
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Dated this the 27th day of July, 2007
Order
Revision petitioners herein were accused of
offences punishable under sections 323, 324, 326, 427 and
34 of the Indian Penal Code. Trial court found them
guilty under section 323 and 326 read with section 34 of
the Indian Penal Code. They were convicted and sentenced
to undergo rigorous imprisonment for one year and to pay
a fine of Rs.1,000/- under section 326 IPC and to undergo
rigorous imprisonment for one month for offence under
section 323 IPC. The terms of sentence were allowed to
run concurrently. The appellate court confirmed the
sentence on the first accused and conviction on the
second accused was reduced to three months’ imprisonment
under section 326. Conviction and sentence under section
323 was confirmed.
2. PW1 was the complainant and PW4 was an
independent eye witness. PW4 was a school going student.
He was examined after satisfying that he is able to give
evidence. The allegation was that both accused persons,
Crl.RP.No.928/99
: 2 :
husband and wife came back from behind with iron rods in
their hands and first accused pulled PW1 down and when
PW1 fell down, the first accused kicked on her chest. It
has also brought out from her testimony that the second
accused thereupon with MO1 beat on her forehead and she
sustained injury on the left forehead. First accused
also beat on her both knees with MO2 iron rod. She
sustained fracture of the bone of her right knee. She
cried aloud. On hearing the cry, people gathered and
accused ran away. PW4 deposed that he was coming after
purchasing sweets. He saw the incident and he has
deposed about the overt acts committed by both accused
persons. Their evidence is supported by Ext.P2 wound
certificate issued by PW7 doctor. He noted a contusion
with haematoma on the left side of the forehead and
tenderness over the front of the right knee. She
sustained fracture on the patella of the right knee.
PW10 is the doctor attached to the Government Hospital,
Ernakulam who issued Ext.P8 discharge certificate which
would show that PW1 had fracture on the right patella
bone. The discharge certificate also shows that
patellactomy was done and patella bone was removed. It
Crl.RP.No.928/99
: 3 :
shows that PW1 sustained grievous injury on the right
knee and also another injury on her forehead. Medical
evidence fully corroborate the oral evidence. Other
circumstances against the accused was that in the wound
certificate, the names of both accused persons were
mentioned. That shows that immediately on reaching the
hospital also, the names of the accused were mentioned
and there is no concoction. First information statement
also gives the same story. On these circumstances, the
trial court convicted both of them with the aid of
section 34. Appellate court reduced the punishment of A2
because of two factors. One is: she was a woman and,
secondly, as a result of the blow inflicted by him, there
was only injury on the forehead, but, they were guilty
and equally responsible with the aid of section 34. I
see no ground to interfere in the conviction entered by
the courts below. However, since the incident happened
in 1992 and considering the facts and circumstances of
the case, conviction of first accused as one year
imprisonment is reduced to six months with a fine of
Rs.1,000/- in default to undergo imprisonment for another
three months. Patella of PW1 was lost. We have to look
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into the injury also. Punishment should commensurate
with the offence. Second accused cannot escape from
punishment merely because she is maintaining children.
Maximum leniency was shown by the appellate court. PW1
was immobilized for more than three months because of the
fracture on the patella.
With that modification, the revision petition
is allowed.
J.B.KOSHY
JUDGE
vaa
J.B. KOSHY, J.
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Crl. R.P. No. 928/1999
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Order
Dated:27th July, 2007