BAIJU, S/O.KUNJU KOLLAMTHUNDIYIL VEETTIL Vs STATE OF KERALA

The revision petitioners herein are the accused Nos.1

and 2 in C.C 86/1996 of the Judicial First Class Magistrate

Court-I, Aluva. They along with two others faced

prosecution before the court below under Section 341, 323,

324 and 326 read with 34 I.P.C, on the allegation that at

about 5 p.m on 5.6.1994, they assaulted the de facto

complainant Prakasan in front of the Loyal English Medium

School at Vennala, and they inflicted simple and grievous

injuries on his body with weapons like dagger, sword etc.

The Police registered the crime on the basis of the first

information statement given by the said Prakasan at the

Specialist Hospital, Ernakulam. He was first taken to the

Ernakulam Medical Centre, from where he was referred to

the Specialist Hospital. After investigation, the Police

submitted final report in court against four accused. All the

four accused appeared before the learned Magistrate and

pleaded not guilty to the charge framed against them under

Sections 341, 323, 324 and 326 I.P.C.

The prosecution examined eleven witnesses and

proved Exts.P1 to P7 documents in the trial court. The MO1

and MO2 weapons of offence were also identified during

trial. The accused denied the incriminating circumstances

when examined under Section 313 Cr.P.C. They did not

adduce any evidence in defence.

On an appreciation of the evidence, the learned

Magistrate found the accused Nos.1 and 2 guilty. The

accused Nos.3 and 4 were found not guilty of any of the

offences and accordingly they were acquitted. On conviction,

the accused Nos.1 and 2 were sentenced to undergo simple

imprisonment for two years each under Section 326 I.P.C,

and to pay a fine of 5000/- each and to undergo simple

imprisonment for three months each under Sections 341 and

323 I.P.C. No separate sentence was imposed under Section

324 I.P.C. Aggrieved by the judgment of conviction dated

14.6.2001, the accused Nos.1 and 2 approached the Court of

Session, Ernakulam with Crl.A 473/2001. In appeal, the

learned Additional Sessions Judge, North Paravur confirmed

the conviction and sentence, and accordingly dismissed the

appeal by judgment dated 20.8.2003. Now the accused are

before this Court in revision challenging the legality and

propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the

materials, I could not find any illegality or impropriety or

irregularity in the conviction made by the courts below

concurrently. PW1 to PW3 examined as independent

witnesses in the trial court turned hostile. The material

evidence is only that of the injured examined as PW4. PW6

and PW8 are the Doctors who examined the injured at the

hospital and issued the wound certificates. The injured was

first examined at the Ernakulam Medical Centre by PW6 and

he was referred to the Specialist Hospital where he was

examined by PW8. These two doctors have given evidence

proving the simple and the grievous injuries sustained by

PW4. One argument was raised during the proceedings in

the court below that the Doctor''s had not stated during

investigation that any of the injuries is grievous in nature.

This is not something fatal. The Doctors duty is only to note

the injury seen by him on examination. He will have to

explain during trial whether any of the injuries is grievous in

nature, and also why it is grievous in nature. It is only a

matter of evidence during trial. Just because the Doctor did

not specifically record any injury as grievous in the wound

certificate, the grievous injury will not become simple in

nature. What is grievous is always grievous, whether it is

specifically recorded so in the wound certificate or not. I

find that there is clear medical evidence in this case given

by PW6, PW8 and PW10 proving the injuries including the

grievous hurt sustained by PW4.

Of course, there is only the evidence of PW4 on

factual aspects. He has given clear and convincing evidence

against the accused Nos.1 and 2, and he is definite that the

severe injuries were inflicted by these two accused. As

against the accused Nos.3 & 4, he could not give any

definite evidence. In the absence of such evidence, they

were found not guilty by the trial court. PW4 has also

explained what injury was inflicted by the 1st accused and

what injury was inflicted by the 2nd accused. He was first

restrained and assaulted by the 1st accused and when he fell

down, he was again attacked by the two accused; one with a

dagger and the other with a sword. During trial, PW4

identified the weapons of offence also. I find no reason to

disbelieve PW4 or to reject his evidence. I find no reason

for interference in revision. The accused could not point out

any illegality or irregularity or impropriety in the conviction

made by the courts below concurrently. I find that the

conviction is only to be confirmed in revision also.

Now the question of sentence. The court below

imposed only simple imprisonment for three months each

under Sections 341 and 323 I.P.C. This is quite reasonable.

The sentence imposed under Section 326 I.P.C is simple

imprisonment for two years. On a consideration of the

various aspects including the long lapse of years since 1994,

I feel it necessary to reduce the substantive sentence

imposed under Section 326 I.P.C. The accused Nos.1 and 2

were very young at the time of the alleged incident. Now 23

years have elapsed since the incident, and the revision

petitioners must be now aged around 51 or 52 years. I feel

that simple imprisonment for one year will be the adequate

sentence in this case under Section 326 I.P.C.

In the result, the conviction against the revision

petitioners under Sections 341, 323, 324 and 326 read with

34 of the Indian Penal Code in C.C 86/1996 of the court

below is confirmed, and the revision petition is disposed of

accordingly. The sentence imposed by the court below

under Sections 341 and 323 I.P.C will stand confirmed, but

the jail sentence imposed under Section 326 I.P.C will stand

reduced to simple imprisonment for one year. The fine

sentence, with the default sentence thereon is maintained.

The revision petitioners will get the benefit of set off as

already ordered by the trial court.