Michale vs State of Kerala

N.K. Balakrishnan, J.—The petitioner who was concurrently found guilty of the offence under Sec. 325 IPC and who was sentenced to undergo S.I. for one year and to pay Rs. 2,000/- as fine challenges the same in this revision.

The incident took place on 29.12.1990 at 7.30 PM. The injured (PW1) and also the petitioner/accused were engaged in unloading cement from the church premises. There was some exchange of words between PW1 and the accused. Both of them were on the top of the lorry. They got down. Because of previous enemity the accused beat on the left cheek of PW1. He fell down. When he rose up, again he was beaten by the accused. The accused also kicked on the left knee causing fracture of the patella. He was taken to the hospital. Police recorded Ext.P1 F.I. Statement. After conducting investigation charge sheet was laid against the petitioner under Sec. 325 IPC.

Before the court below PW1 to PW6 were examined and Exts.P1 to P4 were marked. One witness was examined on the side of the accused as DW1. The learned Magistrate accepted the evidence given by PW1, the injured which was supported by PW2 and PW3, the independent witnesses to hold the prosecution case true. Accepting the medical evidence it was found that the accused caused grevious hurt to PW1 and thus the petitioner was convicted and sentenced as mentioned above. The learned Sessions Judge after re-appreciation of the evidence concurred with the finding entered by the learned Magistrate and dismissed the appeal.

Learned counsel for the petitioner has argued at length challenging the prosecution version. Learned counsel would submit that there was no acceptable evidence regarding the light in which the incident could have witnessed. But the witnesses have stated that there was light at that place. Moreover PW1 and the accused were known to each other and were known to PW2 and PW3 also. The fact that PW1 had sustained injury as proved by PW6 cannot be now assailed at all.

The learned counsel for the petitioner would submit that even if the entire prosecution case is accepted, still the conviction under Sec. 325 IPC cannot be sustained. In support of that submission, the learned counsel would draw the attention of the court to the admission made by PW2 and PW3 that PW1 had abused the accused imputing something bad against PW1''s father and so it was quite natural the son (accused) suddenly got provoked and beat PW1. It was also in evidence that there was wordy altercation between PW1 and accused. PW1 abused the accused and his father. The accused had not used any weapon to inflict the injury. It is reasonable to infer that accused was suddenly provoked and it was because of that grave and sudden provocation he beat and kicked PW1. The evidence regarding the same given by PW2 and PW3 was not appreciated by the court below in that line and as such the learned counsel for the petitioner submits that the conviction of the offence under Sec. 325 IPC cannot be sustained.

I have gone through the evidences given by PW2 and PW3 and I am convinced that there was sufficient reason for the accused to have grave and sudden provocation and that the accused caused grevious hurt to PW1 because of that grave and sudden provocation and as such the offence would fall under Sec. 335 IPC. To that extent the finding is to be altered. If so, the conviction and sentence passed against the petitioner are to be set aside and he is to be convicted for the offence under Sec. 335 IPC.

In the result, this Crl. R.P. is allowed in part. The conviction and sentence passed against the petitioner for offence under Sec. 325 IPC are set aside. Instead, he is found guilty of the offence under Sec. 335 IPC and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs. 5,000/- as compensation to PW1, the injured and in default of payment of the same, the accused/petitioner will undergo S.I. for six months. The petitioner will surrender before the learned Magistrate on 7.3.2012 to undergo imprisonment till the rising of the court and to deposit Rs. 5,000/- as compensation payable to PW1.