Balakrishnan vs State of Kerala

R. Basant, J.—The revision petitioner in this revision petition assails the verdict of guilty, conviction and sentence imposed on him u/s 325 I.P.C. He is sentenced to undergo R.I for a period of one year and to pay a fine of Rs. 3,000/-. Default sentence was also imposed.

The petitioner along with 2 others faced indictment for the offences punishable under Sections 326 and 324 I.P.C. The trial court found accused 2 and 3 not guilty and acquitted them. The petitioner was found guilty, convicted and sentenced u/s 326 I.P.C. The appellate court allowed the appeal in part and altered the conviction from Section 326 to 325 I.P.C. The substantive sentence of imprisonment was reduced to R.I for a period of one year. The sentence of fine was not disturbed. The crux of the allegations against the petitioner is that he along with the accused, had at 12 midnight on 17/18.01.1995 assaulted PW1 with M.O1 bamboo stick. The other accused allegedly attacked PWs 2 to 5 who were also present along with PW1. The motive for this incident is alleged to be an earlier incident on the same night in which PW1 attempted to jump into and perform along with participants of a kavady procession. Accused No. 1 was the organisor of the said kavady procession. Accused No. 1 wanted PW1 to desist from such activity. There was an exchange of words. PW1 was excluded from the kavady procession. But later on that night when PW1 was going home, this incident had allegedly taken place.

PW1 was taken to the doctor-PW7 immediately and at 3.15 a.m, PW7 examined PW1 and issued Ext.P3 wound certificate. Police was informed and the police recorded the F.I statement from PW1 at 5.10 p.m on the same day. In Ext.P3 wound certificate, the assailant is not named. But in Ext.P1, the petitioner herein, ie. the 1st accused, was named clearly. Investigation was conducted by PW8. He prepared Ext.P2 scene mahazar. Under Ext.P4 seizure mahazar, M.O.1 bamboo stick allegedly used by the petitioner was seized by PW8 when the petitioner produced the same. Final report was filed by PW8 after completing the investigation.

The accused denied the offence alleged against them and thereupon PWs 1 to 8 were examined and Exts.P1 to P4 were marked. As stated earlier, the trial court did not accept the evidence of PWs 1 to 5 against accused 2 and 3 inasmuch as the alleged injuries suffered by PWs 2 to 5 were not proved by the prosecution by medical evidence. The court below believed the prosecution witnesses in so far as their evidence relates to the infliction of injuries on PW1 by the 1st accused. Accordingly the trial court proceeded to pass the impugned judgment.

The appellate court took the view that the weapon has not been proved to be a dangerous weapon. M.O.1 allegedly seized under Ext.P4 was not shown to PW7 doctor and his opinion as to whether it was a dangerous weapon was not elicited. It is, in these circumstances, that the court below chose to accept and act upon the oral evidence of PW1 duly supported by oral evidence of PWs 2 to 5 as also Ext.P1 F.I statement and Ext.P3 wound certificate. That PW1 had suffered a fracture is proved by the evidence of PW7 and PW1 as also Ext.P3 wound certificate. The appellate court, as stated earlier, reduced the sentence imposed.

Before me, the learned Counsel for the revision petitioner and the learned Public Prosecutor have advanced their arguments. The learned Counsel for the petitioner assails the impugned verdict of guilty, conviction and sentence on various grounds.

First of all the counsel contends that PW1 should not have been believed. It was PW1, who jumped into the kavady procession led by the 1st accused. The 1st accused had only admittedly excluded him from the kavady procession. Motive if any could not have been for the 1st accused against PW1. It must have been on the other foot, argues the learned Counsel. The learned Counsel further argues that the case against accused 2 and 3 having not been accepted by the courts below and the oral evidence of PWs 2 to 5 in so far as it relates to the attack on them having been rejected by the courts below, a verdict of guilty and conviction founded on such evidence is unjustified.

I have considered all the relevant aspects. The nature, quality and contours of the jurisdiction of a revisional court has to be borne in mind. At this third tier of criminal litigation, the revisional court shall not lightly interfere with the findings of fact. Unless findings of fact are grossly erroneous or perverse and such vice in turn leads to miscarriage of justice, the revisional jurisdiction of superintendence and correction will not be invoked.

Having reminded myself of the law, I find that the impugned verdict of guilty and conviction u/s 325 I.P.C is amply justified by the oral evidence of PW1 supported by Ext.P1 as also the injuries described in Ext.P3. In any view of he matter, I am satisfied that the verdict of guilty and conviction and concurrent conclusion of the courts below that PW1 suffered injuries at the hands of the 1st accused with M.O.1 need not be disturbed. The challenge against the said finding is turned down.

The appellate court has given the revision petitioner the benefit of doubt to the extent possible when it came to the conclusion that M.O.1 cannot be held to be a dangerous weapon. The counsel argues that the sentence imposed is perversely severe and unjustified by the facts and circumstances. It was PW1 who jumped into the Kavady procession. The 1st accused was only excluding him. Even assuming that there was later a quarrel and altercation on that score, circumstances must have been taken into consideration and the deterrent substantive sentence of imprisonment for one year is not justified, argues the learned Counsel.

I have considered all the relevant aspects. I take note of the admitted nature of the incident. Tempers must have been running high. I take note of the elapse of a period of more than 15 years from the date of the incident. I am persuaded to agree that it is not necessary at this juncture to uphold the severe sentence imposed on the revision petitioner. Substantive sentence of imprisonment can be reduced. The sentence of fine can be set aside and an appropriate direction for payment of compensation can be issued. The challenge in this revision petition can succeed only to the above extent.

In the result:

a) This revision petition is allowed;

b) The impugned verdict of guilty and conviction u/s 325 I.P.C are upheld;

c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, the petitioner is sentenced to undergo imprisonment till rising of court and to pay an amount of Rs. 25,000/- (Rupees Twenty five thousand only) as compensation to PW1. Such amounts shall be deposited before court or paid to PW1 on or before 26.07.2010 and voucher shall be produced before the court below. If compensation is not paid, the petitioner shall undergo default sentence of S.I for a period of 3 months. If deposited, the entire amount shall be released to PW1.

If the petitioner does not appear before the trial court on or before 26.07.2010, the learned Magistrate shall proceed to execute the modified sentence hereby imposed. If the petitioner does not appear, appropriate action can be taken by the learned Magistrate u/s 446 Cr.P.C against the petitioner and his sureties.