Madalan Subair vs State of Kerala

S. Siri Jagan, J.—The petitioner is the accused in C.C. No. 369/1993 before the Judicial First Class Magistrate''s Court, Payyannur. He

was prosecuted u/s 326 of the Indian Penal Code. The prosecution case is as follows:- On 5.3.1992 at about 7.30 a.m. at Thattummal near the

house bearing No. PVP. VIII/851 belonging to Puthanparambil Chacko, the petitioner, due to prior animosity towards the complainant on account

of a property dispute, attacked the complainant with a chopper with the intention to cause grievous hurt and cut off the left ear pinna of the

complainant with the weapon, thus committing an offence u/s 326 of the Indian Penal Code. The prosecution examined PWs 1 to 9 and marked

Exts. P1 to P6 documents. The petitioner did not adduce any evidence. After considering the evidence adduced by the prosecution, the Magistrate

convicted the petitioner u/s 324 of the Indian Penal Code instead of Section 326 of the Indian Penal Code and sentenced him to undergo simple

imprisonment for two years. The petitioner filed Crl. Appeal No. 323/1997 before the Additional Sessions Court, Thalassery. The Sessions Court,

while confirming the conviction, reduced the sentence to imprisonment for one year. The judgments of the courts below are under challenge in this

Criminal Revision Petition.

The contention of the petitioner is that there is no reliable evidence to prove the occurrence. According to the petitioner, the petitioner has been

convicted solely on the basis of the interested testimony of PW1. Although PWs 2 and 3 cited as the witnesses for proving the occurrence were

examined, they turned hostile and did not support the prosecution case. It is further submitted that the medical evidence also did not support the

prosecution insofar as the finding is that the left ear pinna was cut, whereas the medical evidence showed three injuries, which would point to the

improbability of the prosecution case. The petitioner, therefore, submits that the prosecution has not been able to prove the guilt of the petitioner

beyond a reasonable doubt and at least the petitioner is entitled the benefit of doubt. Hence the learned counsel for the petitioner argues for

acquitting the petitioner.

The learned Public Prosecutor would contend that there is no inviolable rule in criminal law that there cannot be any conviction on the basis of

the oral evidence of the injured alone. According to the learned Public Prosecutor, if the evidence of the injured is convincing enough and the

accused was not able to demolish the evidence in cross-examination, the same is more than sufficient to convict the accused. It is pointed out that

in this case, PW1, who was the injured in the incident, gave categoric evidence regarding the identity of the petitioner as the person who attacked

PW1 and caused injury to PW1. The injury is corroborated by medical evidence and, therefore, the evidence is more than sufficient to convict the

petitioner is the contention raised.

I have considered the rival contentions in detail.

PW1, who is the injured in the incident, has given categoric evidence that on the particular day on a push from behind he turned around and saw

the petitioner holding a chopper, with which, he attacked PW1 resulting in injury to his ear. The accused could not discredit this evidence in cross-

examination and he withstood the cross examination admirably. The medical evidence proves that the injuries sustained by PW1 can be caused as

stated by the prosecution. As such, the medical evidence corroborates the evidence of PW1. I do not find any merit in the contention of the

petitioner that since in the allegation there is only one injury and in the medical evidence three injuries are noted, the same will discredit the

prosecution case. All the three injuries were in and around the left ear of PW1. As such, it cannot be said that presence of two more wounds will

discredit the testimony of PW1. In the above circumstances, I do not find any merit in the challenge by the petitioner against the conviction entered

by the courts below. Accordingly, the conviction is confirmed. The learned counsel for the petitioner makes a fervent plea for reducing the

punishment to one of fine alone. He points out that the incident occurred 20 years ago and, therefore, it is unjust now to direct the petitioner to

undergo imprisonment. I am of opinion that if the people are to have continued confidence in the legal system, the perpetrators of crimes should

suffer punishment proportionately to the crime. If the petitioner is let off with fine alone, naturally, PW1 will lose confidence in the judicial system.

Likewise, all those persons who care for PW1 will also lose confidence in the criminal judicial system. Therefore, I am of opinion that the petitioner

cannot be let off with fine alone. However, taking lenient view, I reduce the punishment of imprisonment to six months instead of one year.

The Criminal Revision Petition is disposed of as above.