Jaison vs State Of Kerala

N. Nagaresh, J

The revision petitioner is before this Court aggrieved by the conviction and sentence imposed on him in Criminal Appeal No.677/2011 of the Additional Sessions Judge, Irinjalakuda arising out of CC No.1721/2007 of the Court of the Judicial First Class Magistrate, Chalakudy.

The prosecution alleged that on 01.09.2007, at about 10.50 pm the accused committed criminal trespass into the residential property of the de facto complainant in Kuttichira Village and voluntarily caused grievous hurt to the de facto complainant by cutting his right elbow using chopper as a dangerous weapon due to the previous enmity towards him. The de facto complainant (CW1) sustained grievous hurt in the incident and was taken to St. James Hospital, Chalakudy for treatment. On the basis of the statement given by CW1 to the police, a crime was registered. The Sub Inspector of Police, Vellikulangara, on completion of the investigation, preferred chargesheet under Sections 447 and 326 IPC. The petitioner pleaded not guilty.

The prosecution examined PWs 1 to 7 and marked Exts.P1 to P5 documents. Exts.D1 to D3 CD statements were marked on the side of the defence.

On analysis of evidence, the JFCM Court held that PW1 convincingly established that on 01.09.2007 while a Ganamela program was going on near the residence of PW1, the accused made some nuisance at the ladies sector who were watching the music program. PW1, who was a Volunteer for conducting the program, removed the petitioner from the said place. The infuriated petitioner inflicted cut injury on the right elbow of PW1 with a chopper while PW1 was taking soda from his residence to supply to the music party. The learned Magistrate found that the evidence of PW1 stands fully corroborated by the oral testimony of PW2 and PW5. The evidence of PW4-Doctor established that the injury inflicted is grievous one. PW7, who recorded the Ext.P1 FI Statement of PW1 at the Hospital at Chalakudy on the next day itself also supported the prosecution case.

On consideration of the afore, the learned Magistrate held that the petitioner is liable to be proceeded and sentenced under Sections 447 and 326 IPC. The petitioner was sentenced to undergo rigorous imprisonment for a period of three months under Section 447 IPC and rigorous imprisonment for a period of three years and to pay a fine of ₹10,000/- under Section 326 IPC with a default sentence for a period of one year. The substantive sentence and the default sentence were to run consecutively.

In Criminal Appeal No.677/2011 filed by the petitioner in the Court of the Additional Sessions Judge, Irinjalakuda, the learned Sessions Judge noted that the evidence of PW1 is supported by the evidence of PW2 who identified MO1 weapon. PW5 is an eye witness who supported the prosecution case. The presence of PW5 at the spot was deposed by PW1 as well. The Sessions Judge held that the prosecution has proved that the appellant had attacked PW1 with MO1 knife and caused injury to him.

The Sessions Judge noted that the appellant is not a habitual offender. Consequently, the rigorous imprisonment for the period of three years imposed on the appellant for the offence under Section 326 IPC was substituted imposing a sentence of rigorous imprisonment for a period of eight months. The Sessions Judge enhanced the compensation imposed from ₹10,000/- to ₹20,000/-. The substantive sentence of three months imposed for the commission of the offence under Section 447 IPC was reduced to simple imprisonment for a period of 15 days with a fine of ₹500/-. If there is default in payment of fine, it was ordered that the appellant shall suffer simple imprisonment for a period of seven days. The substantive sentence imposed was to run concurrently.

The counsel for the petitioner argued that the judgment of the trial court and the court of appeal are erroneous both on facts and in law. The courts below ought to have found that the prosecution has not shown the weapon allegedly used for the commission of offence to PW4-Doctor. The courts below further ought to have noted that all independent witnesses examined in the case were relatives and friends of PW1.

The counsel for the petitioner argued that the petitioner is not a habitual offender and even according to the Sessions Court, the facts revealed that the incident had happened in the heat of a moment in retaliation of an altercation between PW1 and the petitioner. Therefore, the offence is liable to be converted to one under Section 335 IPC. The counsel for the petitioner further pointed out that PW4-Doctor had not made any specific statement to the effect that the cut injury was inflicted using MO1 chopper. There is discrepancy in the matter of recovery of MO1. As per the version given by PW1, the chopper was found near a coconut tree in the residence of PW1. However, the materials available with the court would show that there is no coconut tree in the residence of PW1. MO1 chopper is evidently a planted one. The petitioner should therefore be acquitted, contended the counsel for the petitioner.

The Public Prosecutor resisted the revision petition. The Public Prosecutor submitted that the evidence of PW1 convincingly established that the revision petitioner inflicted cut injury on the right elbow of PW1 using a chopper. The evidence of PW4-Doctor, who examined PW1 immediately after the incident, established that PW1 sustained a lacerated deep cut wound on the right elbow. The injury is grievous in nature. The contradictions pointed out by the petitioner have not materially affected the veracity of the evidence adduced by the prosecution.

The Public Prosecutor also pointed out that when a Magistrate can impose fine only upto an amount of ₹10,000/-, the Sessions Judge could not have legally enhanced the fine amount to ₹20,000/- in appeal.

I have heard the learned counsel for the petitioner and the learned Public Prosecutor representing the respondents.

PW1 is the injured eye witness. PW1 gave Ext.P1 statement. PW1 stated that while a celebration / musical program was going on in a nearby Church, PW1 went to his house for distributing soda to the performers. While PW1 was getting out from his house, the accused came from behind and struck PW1 with a chopper. The petitioner was neighbour of PW1 and hence he could identify the petitioner.

The evidence of PW5 supported the statements of PW1. Ext.P3 wound certificate in respect of PW1 would corroborate prosecution evidence. The presence of PW5 at the site was deposed by PW1 as well. For all the afore reasons, I do not find any reason to unsettle the finding of facts entered into by the courts below. In the facts of the case, the offence cannot be brought under Section 335 as one cannot say there was grave and sudden provocation.

At the same time, I note that the incident happened during a Church festival. The petitioner is not a habitual offender. As stated by the learned Sessions Judge, the incident had happened in the heat of a moment in retaliation of an altercation between PW1 and the petitioner. The revision petitioner was young when the incident took place. Taking into account all the afore aspects, while upholding the conviction and sentence imposed by the courts below, I am inclined to modify the sentence awarded on the petitioner. The sentence imposed by the Sessions Court is set aside.

The petitioner is imposed with a sentence of simple imprisonment for a period of one month for the offence under Section 326 IPC. He is imposed with a compensation of ₹10,000/- under Section 357(3) Cr.P.C. The compensation if paid shall be given to PW1. If there is default in payment of compensation, then the petitioner shall suffer simple imprisonment for a period of two weeks. The substantive sentence imposed by the Sessions Court for the commission of offence under Section 447 IPC for a period of 15 days is confirmed. The petitioner is imposed with a fine of ₹500/- for the offence under Section 447 IPC. If there is default in payment of fine, the petitioner shall suffer simple imprisonment for a period of seven days. The substantive sentence imposed shall run concurrently.

Crl.R.P. is disposed of as above.