IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 610 of 2001()
1. SABU
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.V.G.ARUN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :07/09/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.A.No.610 of 2001
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Dated this the 7th day of September, 2007
JUDGMENT
The appellant stands convicted for the offences under
Sections 323 and 325 of IPC and sentenced to undergo R.I. for
three months for the offence under Section 323 IPC and R.I. for
one year and to pay fine of Rs.5,000/- for the offence under
Section 325 IPC and in default, to undergo simple imprisonment
for three months. The sentences are directed to run concurrently.
2. The prosecution case is that on 5.12.1995 at about
8.45 a.m., the defacto complainant was attacked by the accused
as the door of the tempo of the accused was closed by the
defacto complaint to have sufficient space to park the vehicle of
the defacto complainant. It is alleged that the accused got
infuriated and attacked the defacto complainant with a granite
stone. The defacto complainant sustained fracture of his right
ulna.
3. The evidence adduced in the matter consisted of the
testimony of PWs’ 1 to 10, Exts. P1 to P11. PWs’ 4, 5 and 6, the
CRL.A.610/2001 Page numbers
occurrence witnesses turned hostile. The direct evidence with
respect to the incident is confined to the testimony of PW1, the
defacto complainant. The medical evidence vide testimony of
PWs’ 7 and 8 and Exts. P5 and P6 supported the case set up by
the prosecution with respect to the injury sustained. The accused
was charge sheeted for the offences under Sections 323, 326 of
IPC and Section 3(1) and (x) of Scheduled Caste/Scheduled Tribes
(Prevention of Atrocities) Act 1989. But, the court acquitted the
accused for the offence under Section 3(1)(x) of SC/ST (Prevention
of Atrocities) Act. The evidence disclosed that the injury was
sustained when PW3 had tried to block the hit of the accused with
the stone on the head and that there was no contact with the
stone and the head. It is also the evidence of PW3 that when the
other drivers at the spot separated them, (the incident took place
at the parking slot) he himself got into the tempo and drove it
away and on the way swelling developed and he went to the
district hospital.
4. It is contended that there is considerable delay in
lodging the FIS. The information reached the police on the same
day at 7.00 p.m. The incident was taken place at 8.45 a.m. PW3
CRL.A.610/2001 Page numbers
has stated that at first he went to the District Hospital, Kottayam,
from where he was referred to the Medical College Hospital and
after examination at the Medical College hospital he returned
home and thereafter went to the police station. In the
circumstances, I find that the delay which is not considerable
stands explained. There is no merit in the above contention.
5. It is also contended that none of the independent
occurrence witnesses has supported the prosecution version. I
find that there is no reason to discard the testimony of PW3, the
injured as the tact of the injury sustained stands corroborated by
the testimony of PWs’ 7 and 8 doctors and Exts. P5 and P6
medical records. In the circumstances, I find no reason to deviate
from the findings of the court below. The conviction is confirmed.
6. Counsel for the appellant has pleaded for leniency
pointing out that the incident is the result of an instantaneous
reaction as the accused got infuriated when the defacto
complainant another tempo driver closed the door of his tempo
without seeking his permission. Both the accused and the defacto
complainant are tempo drivers belonging to the same place. In
the circumstances, I find that the sentence is to be modified.
CRL.A.610/2001 Page numbers
Hence, the sentence imposed under Section 325 IPC is modified
to imprisonment till the rising of the court and to pay a fine of
Rs.25,000/- less the amount if any deposited and in default, to
undergo simple imprisonment for six months. The fine amount, if
realised, shall be paid to PW3, the defacto complainant. The
appellant is granted two months’ time to remit the fine amount.
He shall appear before the Sessions Judge on 15.11.2007 to
receive the sentence.
The criminal appeal is disposed of as above.
K.R.UDAYABHANU,
JUDGE
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