Partly allowed

Sajeev v. State of Kerala

Kerala HC23 May 2023Crl.Rev.Pet/3238/2003

Case brief

AI extract

What is this about?

The High Court examined a revision petition challenging convictions under sections 323 and 326 IPC. Due to lack of evidence regarding grievous hurt and the second accused's participation, the court quashed convictions against the second accused and modified the sentence for the first accused.

What did the court decide?

Conviction of second accused set aside and he is acquitted. Conviction of first accused under Section 326 IPC set aside; conviction under Section 323 IPC confirmed with sentence reduced to one month.

Sajeev Vs State of Kerala — Cheating and Forgery | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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TUESDAY, THE 23RD DAY OF MAY 2023 / 2ND JYAISHTA, 1945
CRL.REV.PET NO. 3238 OF 2003

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AGAINST THE JUDGMENT IN CR.A.NO.869/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), ERNAKULAM IN C.C.NO.520/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,KOCHI

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CRIMINAL REVISION PETITIONER/APPELLANT/ACCUSED:

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SAJEEV
S/O MOHANAN,
AGED 24 YEARS,
EDAKKATTU VEETTIL,
NAYARAMBALAM, ERNAKULAM DISTRICT

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SAROJINI @ SARASWATHI,
W/O MOHANAN
AGED 53 YEARS
EDKKATTUVEETTIL HOUSE,
NAYARAMBALAM

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BY ADVS.
SRI.A.X.VARGHESE
SMT.LAKSHMI.V.

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM

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BY ADV
C.N PRABHAKARAN
PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 23.05.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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Crl. R.P. No.3238 of 2003

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BECHU KURIAN THOMAS, J. ==================== Crl. R.P. No.3238 of 2003

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===================== Dated this the 23^rd day of May, 2023

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ORDER

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Petitioners are the accused in C.C.No.520/2000 on the files of the Judicial First Class Magistrate Court, Kochi. They were indicted for the offences under Sections 323 and 326 r/w Section 34 of the Indian Penal Code, 1860. Both accused were convicted and sentenced to undergo simple imprisonment for three months for the offence under Section 323 and for rigorous imprisonment for one year for the offence under Section 326 IPC and both sentences were directed to run concurrently. In the appeal before the Sessions Court (Adhoc-I), Ernakulam, in Crl.A.No.869/2002, the conviction was confirmed but the sentence of imprisonment for the offence under Section 326 of IPC was modified and reduced to six months. Aggrieved by the conviction and sentence imposed against them, petitioners have come up with this revision.

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According to the prosecution, on 01.11.1999, when PW2 Sri.Vamadevan, went to fetch water from a public tap, 1^st accused, who was his neighbour picked up a quarrel and thereafter, caught hold of his right hand and twisted it apart from fisting him on his chest and also pushed him. Due to the assault, the injured fell down and at that

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Crl. R.P. No.3238 of 2003

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time, the 2^nd accused came with an aluminum bucket and struck blows on the hand of the injured, due to which, the middle finger was fractured and thereby the accused committed the offences alleged.

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In order to prove the prosecution case, PW’s 1 to 8 were examined and Exts. P1 to P6 were marked. The following injuries were noticed on Ext.P3 wound certificate:-

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a) Contusion, proximal interphalangeal joint, right middle finger with swelling and deformity kept in flexion.

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b) Lacerated wound distal phalanx medial side 0.25x0.25x0.25 size.

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c) Lacerated wound right forefinger medial side 0.25 x 0.25x0.25 size.

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d) Multiple abrasion anterior lateral aspect of right thigh lower end.

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e) Contusion right upper and lower 1/3rd posterior aspect.

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f) Multiple abrasion right spectral region.

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Sri. A.X.Varghese, the learned counsel for the petitioners contended that even going by Ext.P3 wound certificate, an offence under Section 326 of IPC is not made out as no grievous hurt had occasioned. It was also pointed out that the prosecution version regarding attack by an aluminum bucket stands disproved by the evidence of PW8 itself and therefore, under no circumstance can the said offence be attracted in the instant case. It was further submitted that, as far as Section 323 of IPC is concerned, the evidence of the prosecution does not inspire confidence and hence, the accused are

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Crl. R.P. No.3238 of 2003

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entitled to be acquitted.

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Sri.C.N.Prabhakaran, the learned Public Prosecutor, on the other hand contended that the evidence of PW5 doctor, clearly reveals that fracture of the middle finger of the injured had occasioned thereby coming within the purview of the ingredients of grievous hurt under Section 320 IPC. It was further submitted that being a revisional jurisdiction, the court is only called upon to consider the regularity and propriety of the findings entered into and, since two courts have already entered a finding of guilt of the accused, no interference is warranted.

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The Investigating Officer during cross examination stated that, PW2 the defacto complainant, had stated that he was attacked by A2 with a plastic bucket. Though PW2 in his deposition stated that, it was an aluminum bucket that was used by the 2^nd accused for assaulting, the statement of PW8 creates doubts on the prosecution case. The prosecution evidence regarding the nature of weapon used to assault PW2 therefore remains not proved in accordance with law. Further even though PW5 the Doctor, on being recalled under Section 311 of the Cr.P.C. stated that there was a fracture of the middle finger. It is not known, from what source such a statement was made. Ext.P3 wound certificate does not refer to any fracture of the middle finger. All what is stated in Ext.P3 is a contusion of the knuckles of the middle finger. In the absence of any X-ray produced or any other record

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Crl. R.P. No.3238 of 2003

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available to show that there was a fracture of the middle finger of the injured, an improvisation made during the evidence stage, that too after the witness was recalled, projecting the injury to be one that falls within the purview of grievous hurt under Section 320 of IPC cannot be accepted as an evidence worthy of belief to bring home the guilt of the accused under Section 326 of the IPC. In view of the absence of proof beyond reasonable doubt regarding the offence under Section 326 IPC, the finding of guilt of the accused for the said offence is irregular, improper and is liable to be set aside.

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As far as the offence under Section 323 of IPC is concerned, it is noticed from the evidence adduced that the initial assault is alleged only as against the 1^st accused. 2^nd accused had not even come into the picture when the hurt was allegedly caused by the 1^st accused to PW2. Therefore, Section 323 of IPC also cannot be attracted as against the 2^nd accused.

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However, both the courts have categorically come to the conclusion that the 1^st accused had attacked the defacto complainant and caused hurt on him. The medical evidence adduced shows that PW2 had sustained injury on his right middle finger apart from lacerated wound on the right forefinger as well as multiple abrasions. In the jurisdiction exercised under Section 397 of IPC, the scope of interference on factual findings are very limited. The finding of guilt of the 1^st accused under Section 323 IPC by the learned Magistrate as

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Crl. R.P. No.3238 of 2003

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well as by the Sessions Court in appeal are based on proper evidence and does not warrant any interference.

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However, taking note of the date of occurrence which was 01.11.1999, and also the long period that have elapsed between the incident, I am of the view that a lenient view can be adopted as regards the sentence. Therefore, the period of sentence imposed upon the 1^st accused for the offence under Section 323 IPC can be modified to one month’s simple imprisonment.

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In view of the above, this revision petition is allowed in part. The conviction and sentence imposed upon the second accused/2^nd petitioner for the offence under Sections 323 and 326 IPC shall stand set aside and the 2^nd accused is acquitted. The conviction and sentence imposed upon the 1^st accused for the offence under Section 326 IPC is also set aside. However, the conviction of the 1^st accused for the offence under Section 323 IPC is confirmed but the sentence imposed for the offence under Section 323 of IPC on the 1^st accused is modified and reduced to one month simple imprisonment.

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This criminal revision petition is allowed in part.

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Sd/-

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BECHU KURIAN THOMAS

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JUDGE

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jka/23.05.23.

Sajeev v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sajeev v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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