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Judgment
N. Ananda, J.—The petitioners (accused 1 & 2) were tried and convicted for an offence punishable u/s 326 r/w. 34 IPC in C.C. No. 40/2005, on the file of JMFC at Kadur. The petitioners were before I-appellate court, in Criminal Appeal No. 62/2006. The learned Judge of I-appellate court on re-appreciation of evidence has confirmed the findings of trial court. Therefore, petitioners are before this court by invoking section 397 r/w. 401 Cr.P.C., I have heard learned counsel for petitioners and learned HCGP for State.
This court while exercising revisional jurisdiction u/s 401 Cr.P.C., does not sit as a court of second appeal. This court can interfere with the impugned judgment if the courts below have committed glaring errors in appreciation of evidence or errors of law resulting manifest injustice to petitioner.
The trial court has accepted eye-witness account of victim and evidence of eye-witnesses namely PW2 & PW3. The victim has deposed that on the date of incident viz 23.08.2005 at about 5 p.m., when he was returning from his field, petitioners confronted victim and picked up a quarrel with him regarding pathway. Accused No. 1 assaulted victim with a chopper and accused No. 2 assaulted victim with a club. The victim suffered grievous injuries on his right forearm and injuries on his head.
During cross-examination, it has been suggested to PW1 that he had stolen coconut fruits from garden land of accused and PW1 was chased by accused; when PW1 was being chased by accused, he fell down and suffered injuries. The victim has denied these suggestions. It was suggested to PW1 that the victim was addicted to alcohol. A panchayat was held and victim (PW1) was advised to give up alcohol. Following the advise of panchayat, victim gave up alcohol. PW1 has admitted these facts which in my opinion have no bearing on the offences alleged against petitioners.
PW2 & PW3 have given eye-witness account of incident. Except the fact that PW2 & PW3 are distant relatives of PW1, there is nothing on record to discredit their evidence. There are minor discrepancies in the evidence of PW2 & PW3 regarding their arrival to place of incident. These minor discrepancies would often occur in a criminal trial. Apart from this, accused have examined DW1 & DW2 to prove that victim had stolen coconut fruits from garden land of accused; when victim was being chased by accused, victim (PW1) fell down in a ''halla'' and suffered injuries.
During cross-examination, DW1 & DW2 have admitted that after seeing victim in injured condition, they did not shift victim to hospital. The accused had not lodged complaint against victim alleging that victim had stolen coconut fruits from garden land of accused.
The evidence given by PW5-Dr. Jagadish, completely rules out possibility of victim suffering injuries due to fall. From the evidence of PW5, it is established that victim had suffered fracture of middle phalanx of right index finger and contusion measuring 2 cms x 3 cms over occipital region and tenderness over right thigh. PW5 on radiological examination of victim has opined that injury No. 1 was grievous in nature and PW5 has ruled out possibility of injury No. 1 being caused due to fall. Even if it is assumed that victim had stolen coconut fruits from garden land of accused, accused should not have taken law into, their hands, instead accused should have lodged a complaint against victim.
Thus, on re-appreciation of evidence, I find courts below have not committed any glaring errors in appreciation of evidence.
The learned counsel for petitioners would submit that this court having regard to the facts and circumstances of case and also considering the fact that petitioners have no criminal antecedents, has to invoke provisions of the Probation of Offenders Act, 1958 (for short, ''the Act'').
An offence u/s 326 IPC is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to pay fine.
u/s 6 of the Act, any person under the age of 21 years if found guilty of an offence except offences punishable with imprisonment (imprisonment for life), the court cannot extend the benefit under sections 3 & 6 of the Act. Therefore, this court cannot extend the benefit under sections 3 & 6 of the Act.
The learned trial Judge having regard to facts and circumstances of the case has sentenced petitioners to undergo rigorous imprisonment for a period of three months and pay fine of Rs. 200/- each, in default to undergo simple imprisonment for one month for an offence punishable u/s 326 r/w. 34 IPC. On re-appreciation of the evidence, learned Judge of I-appellate court has concurred with the findings recorded by trial court.
In my considered opinion, courts below have taken a lenient view in the matter of sentence. There are no reasons to interfere with the impugned judgment. The revision petition is dismissed.