IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2125 of 2008()
1. T.BALAN @ KANNUR BALAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.M.THAMBAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2125 of 2008
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Dated this the 30th day of July, 2009
O R D E R
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This revision is in challenge of judgment of learned Additional
Sessions Jude (Adhoc-I), Kasargod in Crl. Appeal No.236 of 2006
confirming conviction and sentence of petitioner for the offence
punishable under Section 326 of the Indian Penal Code (for short, “the
Code). According to the prosecution on 13.1.2003 at about 8.45 a.m.
while P.W.1 along with her child was going to the nearby Anganwadi
and came to the place of occurrence near a temple petitioner along
with accused Nos.2 to 4 in furtherance of their common intention
wrongfully restrained P.W.1 and petitioner voluntarily caused hurt to
her beating with M.O.1, a short stick. Learned magistrate found
accused Nos.3 and 4 not guilty and acquitted them of all the charges.
Petitioner was found guilty under Sect.326 of the IPC while accused
No.2 was found guilty under Sec.326 read with 34 of the IPC. On
appeal learned Additional Sessions Judge acquitted accused No.2 while
confirming conviction and sentence of petitioner as aforesaid. It is
contended by learned counsel that there is no reliable evidence to find
petitioner guilty, at any rate under Sec.326 of the IPC. Further
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contention is that sentence awarded is excessive.
2. P.W.4 examined P.W1 at District Hospital, Knhangad on
13.1.2003 and issued Ext.P3, wound certificate. Evidence of P.W.4
and Ext.P3 is that P.W.1 suffered fracture of right fibula and fracture of
both bones of left lower leg. Though time of examination is not stated
either in Ext.P3 or evidence of P.W.4 the latter examined P.W.1 in the
hospital on 13.1.2003. So far as fracture allegedly suffered by P.W.1
is concerned, contention advanced is that X-ray films to confirm
fractures are not produced. It is seen from Ext.P3 that Orthopeadician
was also consulted and fractures were confirmed. There is evidence
of P.W.4 in that line. There is no challenge to the finding in Ext.P3 that
P.W.1 suffered fractures.
3. So far as the incident is concerned prosecution examined
P.Ws.1 to 3 and 5. Exhibit P2 is the mahazar for scene of occurrence
prepared by P.W.8. As per Ext.P2, M.O.1 short stick was seized from
scene of occurrence. P.Ws.2 and 3 are also attesters in Ext.P2 but
they refused to support prosecution while admitting that they signed
Ext.P2. They denied that they witnessed the incident. P.W.1 in her
evidence stated that on the relevant day at 8.45 a.m while she was
going to the Anganwadi the incident happened. She stated that
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petitioner collected M.O.1 from accused No.2 and beat her. She fell
down. Petitioner again assaulted her with M.O.1. People who
gathered there took her to the hospital. Motive alleged is that
petitioner was engaged in sale of illicit arrack in front of her house
which she intimated to the excise authorities. P.W.5 claimed that
himself and wife were going to work in the quarry and came near the
scene of occurrence. He heard a cry and while looking to the scene of
occurrence saw petitioner collecting stick from accused No.2 and
assaulting P.W.1. In cross-examination he stated that the quarry is
about 2 kms. east of the scene of occurrence. His house is also
situated about 2.5 kms. away from there. He claimed that he had
been to the scene of occurrence to purchase some articles.
Petitioner has a case that he was not even available at the scene on
the relevant day and time and examined D.W.1 and proved Exts.D1 to
D3. Exhibit D1 is the wound certificate issued by D.W.1. Evidence of
D.W.1 and Ext.D1 is that on 13.1.2003 at about 10.05 a.m. D.W.1 had
examined one Balan. It is stated that the said Balan had contusion on
the left eye, abrasion on the forehead and contusion on the chest
D.W.1 stated that those injuries could be either self inflicted or caused
in a fall.
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4. Evidence of P.Ws.1 and 5 is attacked by learned counsel.
According to the learned counsel evidence of D.W.1 and Exts.D1 to D3
probabilise the case of petitioner that he was not available at the
scene of occurrence. Exhibits D2 and D3 are copy of complaint in S.T.
No.307 of 2005 and sworn statement therein filed by T.T.Mohanan
against Karthyayani. Courts below observed that Exts.D2 and D3 have
no bearing on the issue involved in this case.
5. Assuming that petitioner was admitted in District Hospital
at Kanhangad on 13.1.2003, that was at 10.05 a.m. while the
incident occurred on that day at 8.45 a.m. There is no evidence to
show that after the incident petitioner could not have reached the
hospital at or by about 10.05 a.m. on the same day. Therefore
evidence of D.W1 and Ext.D1 are not sufficient to show that petitioner
is not involved in the incident. Regarding the incident there is
evidence of P.Ws.1 and 5. I find no reason to disbelieve them. They
have identified M.O.1 as the weapon of offence which was seized from
the scene of occurrence as per Ext.P2. Conviction of petitioner under
Sec.326 of the IPC requires no interference.
6. It is the further contention that sentence awarded is
excessive. Learned magistrate sentenced petitioner to undergo simple
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imprisonment for three years and fine of Rs.1,500/-. This is a case
where P.W.1, a lady while going to the Anganwadi with her child was
assaulted, left and right with M.O.1, short stick resulting in fractures.
The reason according to P.W.1 is that she intimated the excise
authorities about petitioner engaging in sale of illicit arrack near her
house. Having regard to the facts and circumstances of the case and
the nature of injuries suffered by P.W.1, I do not find reason to
interfere with the sentence as well. Revision petition is without any
merit and it is liable to be dismissed.
Revision petition is dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv