Revisioner challenging conviction for grievous hurt under Section 326 IPC. Bench reviewed allegations of improper charge, non-examination of investigating officer, medical discrepancies, and sentence enhancement, finding no reason to interfere.
Criminal Revision Petition dismissed; conviction and sentence confirmed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
TUESDAY, THE 6TH DAY OF NOVEMBER 2012/15TH KARTHIKA 1934
Crl.Rev.Pet.No. 661 of 2002
CRA.146/1996 of D.C.& SESSIONS COURT,MANJERI CC.450/1993 of J.M.F.C.,PARAPPANANGADI
REVISION PETITIONER(S)/ACCUSED:
VASU AGED 35 YEARS,S/O.KUMARAN, THACHILATHPARAMBIL HOUSE, P.O.OMACHAPPUZHA OZHOOR VILLAGE, THIROOR TALUK,MALAPPURAM DISTRICT.
BY ADVS.SRIP.G.SURESH SRI.C.V.MANUVILSAN
COMPLAINANT(S)/RESPONDENT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
PUBLIC PROSECUTOR SMT. SARAMMA GEORGE.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S. Siri Jagan, J.
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Crl. R.P. No. 661 of 2002
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th day of November, 2012.
O R D E R
The accused in C.C. No. 450/1993 before the Judicial First Class Magistrate, Parappanangadi is the petitioner herein. He was prosecuted for an offence under Section 326 of the Indian Penal Code. The prosecution case was as follows:
On 12.10.1990 at about 4.14 p.m. at Ozhur amsom Karinkoppara desom, due to the previous enmity of the accused and CW1 connected with a case between them, the accused threw chilly powder on the face of CW1 and thereafter beat him on his left knee and hand with a wooden stick, as a result of which he sustained grievous injury of fracture of the left patella and in that the accused is alleged to have committed the offence charged. The Magistrate convicted the petitioner and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 3000/- with a default sentence of six months with a direction that if the fine is realised, the same shall be paid to PW1 as compensation. The petitioner filed Crl. A. No. 146/1996 before the Sessions Judge, Manjeri. The Sessions Judge confirmed the conviction, but modified the sentence to one of simple imprisonment for six months, but the fine was retained. The petitioner is challenging the judgments of the courts below.
Crl. R.P. No. 661 of 2002 -: 2 :-
Code. No reasons are forthcoming for the alteration of the charge either in the charge sheet or in the judgments of the courts below. The investigation officer has not been examined in this case, which has prejudiced the defence of the petitioner. There is no explanation regarding the absence of any wound in the hand of PW1 in the wound certificate, although the allegation is that the wooden stick broke on the second beating on the right hand. The 4th contention is that the prosecution version is improbable. The case is that the wooden stick split when the accused struck the second time and according to the petitioner, if the wooden stick was to split when PW1 was struck the second time, there must be a serious wound in the hand also, which is conspicuously absent. He further points out that as per the version of PW1, the petitioner threw the chilly powder from the back side on his face, which is improbable. There is serious discrepancy in the two medical evidence. He also submits that the oral evidence of the witnesses are inconsistent. Therefore, the counsel for the petitioner argues for an acquittal.
Crl. R.P. No. 661 of 2002 -: 3 :-
of PW1 had not yet been ascertained, because what PW1 reported was only severe pain in the left knee. It is later, on X-ray examination by PW5 doctor that the fracture on the left patella was discovered. That prompted the Magistrate to register a charge under Section 326, is the simple explanation for the same.
Crl. R.P. No. 661 of 2002 -: 4 :-
the prosecution case was improbable, is the contention. . I do not agree with the learned counsel for the petitioner. Necessarily, every time a person is beaten, it need not necessarily result in a wound. It can also be that the after effects of such a beating may have escaped the notice of the doctor. It can also be that the stick was already broken on the first beating itself and therefore the second beating was not hard enough to make any injury. It is pertinent to note here that there was no external injury in the knee also, and the fracture was detected only on X'ray examination. Whatever that be, there is ample evidence before the courts below to the effect that the petitioner had struck PW1 on his left knee, as a result of which there was a fracture on his patella. As such, the absence of any wound in the hand of PW1 does not render the prosecution case improbable as contended by the petitioner. Apart from that, the wooden stick with which PW1 was struck, was marked as MO1 and it has been proved through eye witnesses that PW1 was struck with that M.O. by the petitioner.
Crl. R.P. No. 661 of 2002 -: 5 :-
was actually PW1 who was the aggressor and he is the one who tried to throw chilly power on the face of the petitioner, which boomeranged since the rope with which the buffalo was held entwined on the petitioner. I am of opinion that the petitioner has miserably failed to prove the same. It is the common case that at the time when the incident was alleged to have occurred, PW1 was coming with a buffalo. It is unbelievable that a person who comes with a pre-determined intention to attack a person by throwing chilly powder on him will come with a buffalo, which would be a most inconvenient situation. Apart from that, PW1 has given evidence that the petitioner was remaining at the spot for quite some time, apparently waiting for PW1. More over, there is no evidence to show that PW1 could have anticipated the presence of the petitioner at the spot so as to come prepared for an attack with chilly powder on PW1 at that spot. Therefore, the suggestion put by the petitioner is preposterous, to say the least.
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much later. The fact that Ext.P4 medical certificate issued was later, does not in any way vitiate the prosecution case in any manner insofar as the doctor who has issued that certificate has specifically stated that from 11.10.1990 onwards, PW1 was being treated by him for the fracture of left patella.
The learned counsel for the petitioner makes a fervent plea for reduction of the sentence. I do not find that the sentence imposed is in any way excessive. Therefore, I am not inclined to interfere with the sentence as well. Accordingly, the Criminal R.P. is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/
[True copy]
P.S to Judge.
3 issues framed by the court
Whether the conviction under Section 326 IPC and sentence stand to be interfered with in view of contentions regarding variation in charge, non-examination of investigation officer, absence of wound i
Whether the sentence imposed deserves reduction or modification.
Whether the learned courts below committed any perversity or error in appreciation of evidence warranting revision.
1 provisions across 1 enactments
VASU
STATE OF KERALA
S. SIRI JAGAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
