Joy vs State Of Kerala

G.Girish, J.

The petitioner has preferred this revision, challenging his conviction and sentence for the offence under Section 326 I.P.C upheld by Additional Sessions Judge, Thodupuzha in Crl.Appeal No.36/2004.

The prosecution case is that on 17.12.1997 at about 12 p.m., the petitioner inflicted voluntary grievous hurt upon PW1 by hitting him with the handle of a spade. As a result of the above assault, PW1 is said to have sustained injuries including fracture of his right forearm.

The Sub-Inspector of Police, Rajakkad registered crime No.163/1998 in respect of the above crime, and after investigation, filed the final report before the Judicial First Class Magistrate, Adimali against the petitioner, for the commission of offence under Sections 324 and 326 I.P.C.

In the full trial, with the examination of seven witnesses as PW1 to PW7, and the marking of five documents as Exts.P1 to P5, the learned Magistrate recorded the statements of the petitioner under Section 313 Cr.P.C., and afforded opportunity for him to adduce defence evidence. The petitioner did not adduce any oral evidence from his part. However, seven documents were marked as Exts.D1 to D7 through the prosecution witness, who was examined as PW3. Upon evaluation of the above evidence, and hearing both sides, the learned Magistrate convicted the petitioner for the commission of the offences under Sections 324 and 326 I.P.C and sentenced him to undergo simple imprisonment for four months under Section 324 I.P.C and rigorous imprisonment for one year and fine Rs.5,000/- under Section 326 I.P.C with the direction that the sentences shall run concurrently. Out of the above fine amount, Rs.3,000/- was directed to be paid as compensation to PW1. A default clause of simple imprisonment for one month was also incorporated in that judgment.

In the appeal preferred by the petitioner as Crl.A.No.36/2004, the learned Additional Sessions Judge, Thodupuzha set aside the conviction and sentence under Section 324 I.P.C, and upheld the conviction awarded by the court below under Section 326 I.P.C, and modified the sentence to simple imprisonment for six months and fine Rs.5,000/-. The appellate court directed payment of the entire fine amount as compensation to PW1. It was further directed that the petitioner has to undergo simple imprisonment for six months in the event of non-payment of fine.

It is aggrieved by the above conviction and sentence for the offence under Section 326 I.P.C, awarded by the Additional Sessions Court, Thodupuzha, that the petitioner has preferred this revision.

Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

It has to be stated at the outset that the scope of interference in a revision proceedings upon the concurrent findings of conviction by the trial court and the appellate court is very limited. In the absence of glaring illegality or manifest irregularity and impropriety brought out from the records, it is not possible for this Court to displace the findings arrived by the courts below upon a meticulous analysis of the evidence.

The proposition of law upon the scope of interference in revision, is well settled by a catena of decisions of the Hon'ble Supreme Court.

In State of Kerala v. Jathadevan Namboodiri : AIR 1999 SC 981, the Hon'ble Supreme Court held as follows:

Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr : 2015 (3) SCC 123, it has been held by the Hon'ble Supreme Court as follows:

Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.

Referring the above dictums, the Apex Court has observed in Kishan Rao v. Shankargouda : 2018 (8) SCC 165 as follows:

Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14:

”14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”

As far as the present case is concerned, it is borne out of the records that the courts below relied on the evidence tendered by PW1 to PW3 and PW6 towards arriving at the finding that the petitioner inflicted voluntary grievous hurt upon PW1 by hitting with the handle of a spade. The evidence tendered by PW2, PW3 and PW6 who witnessed the act of the petitioner thrashing PW1 with the handle of a spade resulting in injuries including fracture of right forearm, is in consonance with the evidence tendered by PW1 who is the injured in this case. There is absolutely no material inconsistency which would render the said evidence unacceptable.

The learned counsel for the petitioner would contend that the failure of the prosecution to examine the investigating officer, has to be taken as a fatal aspect which would defeat the prosecution case. I find no merit in the above argument since it is well settled that there cannot be an acquittal as a matter of course in cases where the investigating officer has not been examined. There is absolutely nothing which prevents the court from arriving at the finding of guilt of the accused and convicting him for the commission of offence charged against him, even in the absence of examination of investigating officer, if the evidence adduced by the other witnesses would clearly bring out the offence charged against him.

Another argument advanced by the learned counsel for the petitioner is that, even if it is taken as granted that the evidence adduced by the prosecution brought out the act of the petitioner inflicting voluntary hurt upon PW1, it has to be taken as an act done in exercise of his private defence, since the documents marked as Exts.D1 to D7 from the part of the accused would reveal that there was a counter case registered against PW1 and others in connection with physical assault upon the petitioner. Here also, I am not inclined to accept the argument of the learned counsel for the petitioner since the plea of exercise of right of private defence is a matter which has to be brought out by convincing evidence which include the whole circumstances which compelled the accused to resort to the crime, and also that the accused had taken recourse to the minimum acts of counter attack to prevent the crime being perpetrated upon him by the assailants. As far as the present case is concerned, it is not possible to discern the above circumstances from Exts.D1 to D7, which the petitioner claims to be the records of a counter case registered in connection with the same incident. Hence it is not possible to accept the contention of the revision petitioner that the courts below committed grave error in finding the petitioner guilty of the offence under Section 326 I.P.C by relying on the prosecution evidence.

Therefore, there is absolutely no reason to interfere with the findings of the courts below leading to the conviction of the petitioner for the commission of offence under Section 326 I.P.C. However, taking into account of the fact that the proceedings are pending against the petitioner in connection with the commission of an offence, which took place more than a quarter of a century ago, I feel that the sentence of rigorous imprisonment for six months imposed by the appellate court has to be modified to a sentence of simple imprisonment for three months, while enhancing the fine imposed by the courts below to Rs.10,000/- with a default clause of simple imprisonment for three more months.

In the result, the revision petition is allowed in part as follows:

(1) The conviction of the petitioner for the commission of offence under Section 326 I.P.C, is confirmed.

(2) In supersession of the sentence imposed by the appellate court, the petitioner is sentenced to undergo simple imprisonment for three months and fine Rs.10,000/- (Rupees ten thousand only) for the commission of offence under Section 326 I.P.C.

(3) Out of the fine amount, if realised, an amount of Rs.8,000/- (Rupees eight thousand only) shall be paid as compensation under Section 357(1)(b) Cr.P.C to PW1 or his legal heirs.

(4) In default of payment of fine, as directed above, the petitioner will undergo simple imprisonment for a further term of three months.

Transmit a copy of this order, along with the case records to the trial court, for immediate enforcement of the sentence.