Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE23D DAY OF JANUARY20143RD MAGHA, 1935 Crl.Rev.Pet.No. 1017 of 2003 ( ) --------------------------------- CRL.A.NO. 3/2001 OF III ADDL.SESSIONS COURT, THRISSUR CC.NO. 78/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, CHALAKUDY ------------------------------------------ REVISION PETITIONER/APPELLANT/ACCUSED : ------------------------------------------------------------------------- SASI, S/O.PADMANABHAN, THENGUMPILLY PARAMBA, THRIUMKULAM VILLAGE, KOCHUKADAVU. BY ADVS.SRI.C.A.CHACKO SRI.P.RAKESH RESPONDENT/RESPONDENT/COMPLAINANT : --------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON2301-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts K. HARILAL, J.
-------------------- Crl.R.P. No. 1017 of 2003 ------------------------------ Dated this the 23rd day of January, 2014 ORDER
The revision petitioner is the accused in C.C.No.78/1995 on the files of the Judicial First Class Magistrate's Court, Chalakudy. He was charge sheeted, tried and convicted for the offences punishable under Sections 341, 323 and 326 of the IPC. After trial, he was sentenced to undergo simple imprisonment for one month under Section 341 and 323 of the IPC and simple imprisonment for 3 months under Section 326 of the IPC. Feeling aggrieved, though he had preferred Crl. Appeal No.3/2001 before the III Addl. Sessions Judge, Thrissur, after re-appreciating the evidence on record, the learned Sessions Judge also confirmed the conviction and sentence as such, without any interference. The legality, propriety and correctness of the concurrent findings of Crl.R.P. No. 1017 of 2003 2 conviction and sentence are under challenge in this Revision Petition.
2. The prosecution case, in brief, is that on 6.3.1995 at 7 p.m. when P.W.2 along with his wife P.W.3 was walking through the road at Kochukadavu in front of the grocery shop of one Hamsa, due to previous enmity with P.W.2 and with the intention to cause grievous hurt to him, the accused wrongfully restrained P.W.2 by catching his shirt and fisted him on his face and when P.W.2 fell down, he was beaten by the accused at his right leg knee and on the left leg with a wooden stick and, thereby, causing fracture to his right leg knee and thus committed the offence alleged against him.
3. The learned counsel for the revision petitioner submits that the courts below miserably failed to appreciate the facts and evidence in its correct perspective. The courts below went wrong by relying on the evidence of P.Ws.2 and 3, the injured and his wife. P.W.1, the independent witness, was turned hostile. Crl.R.P. No. 1017 of 2003 3 P.W.5 was also turned hostile. In short, there is no independent corroboration of the occurrence. The courts below failed to appreciate Ext.P1 in its correct perspective. In short, the prosecution failed to prove the charge against the accused beyond reasonable doubt.
4. Per contra, the learned Public Prosecutor advanced arguments to justify the verdict of guilty arrived at concurrently by the courts below. The evidence given by P.W.2 gets support from the evidence of P.W.3 and the evidence of P.W.3 cannot be brushed aside as the evidence of an interested witness and a mere relationship alone cannot be taken as a factor to disbelieve the evidence of P.Ws.1 and 2. According to him, the prosecution has successfully proved the charge against the accused beyond reasonable doubt.
5. Coming to the evidence on record, it is seen that P.W.2, the injured, deposed that on 7.3.1995 at 7 p.m., when he reached in front of the shop of one Hamsa, he was assaulted by the accused without any provocation. Crl.R.P. No. 1017 of 2003 4 The accused had asked whether P.W.2 could make coffin. Then he replied in the negative and on getting provoked by his negative answer, P.W.2 caught hold of his shirt and fisted him on his face. When he fell down, he was beaten with M.O.1 stick at the knee of both his legs. According to him, he had sustained fracture on the right leg knee and he had been an inpatient at the Mala Hospital for two days. He identified M.O.1 as the wooden stick which the accused had used for beating him. After analysing the evidence of P.W.2, the injured, the courts below found that he has given evidence in terms with Ext.P1 F.I.Statement and nothing brought out to discredit his evidence in cross-examination. Further, the evidence of P.W.2 is corroborated by the evidence of P.W.3 his wife, who accompanied him at the time of occurrence. There is no circumstance to suspect the evidence of P.W.3. The settled legal position is that the conviction can be entered on the basis of the solitary evidence of the injured alone provided that the evidence of the Crl.R.P. No. 1017 of 2003 5 injured is believable and trustworthy. Corroboration is not the rule of law or evidence. It is the rule of prudence only. The learned Magistrate who had occasion to witness the demeanour of the witness appreciated the evidence and reposed his confidence in the evidence of the injured and his wife. Subsequently, the appellate court also re- appreciated the entire evidence and concurred with the verdict of guilty.
6. Going by the impugned judgment, it could be seen that both in the lower court and in the appellate court, the main contention raised by the accused was that the fracture was sustained in a motor accident and to prove the same, Ext.D1 was produced. Ext.D1 is the copy of the original petition filed before the Motor Accidents Claims Tribunal seeking compensation. Apparently, the trial court found that the Ext.D1 cannot be relied on to prove that the fracture was sustained in a motor accident said to have been occurred. The date of the occurrence in the instant case was on 06/03/1995; but in Crl.R.P. No. 1017 of 2003 6 Ext.D1 the date of occurrence was on 09/07/1992. As per Ext.D1 the injured PW2 sustained only abrasions in the right knee in 1992. PW2 had not sustained fracture from the said motor vehicle accident which happened on 09/07/1992. But in the instant case Ext.P2 wound certificate proves that the fracture was sustained on 06/03/1995. Therefore, I also concur with the findings of the court below rejecting the argument that the injury was sustained in a motor accident.
7. The evidence of injured witness gets support from medical evidence given by PW4 the doctor who had examined at the hospital when he was brought to hospital immediately after the occurrence. In examination, he stood by the injuries noted in Ext.P2 wound certificate which includes the fracture on his right patella. It is needless to say that offence under Section 326 is made out through Ext.P2 wound certificate.
8. Re-appreciation of the entire evidence is impermissible under revisional jurisdiction unless it is Crl.R.P. No. 1017 of 2003 7 shown that the inferior courts who have arrived at such findings or formed such opinion on the basis of the materials on record or the findings are so perverse or unacceptable. In the absence of any such perversity in the appreciation of evidence, I concur with the verdict of guilty and conviction thereunder.
9. Coming to the sentence, the learned counsel for the revision petitioner submits that the incident was occurred in the year 1995 and now 17 years have been elapsed after the incident. The learned counsel in the above view urged for taking a lenient view in the matter of sentence. But I am of the view that prison term can be imposed to secure the interest of deterrency and for conveying a message to the society. But deterrency does not necessarily depend upon the length of the term the offender spends behind the Bar. The courts below erred in discarding the grievance of the victim in the matter of sentence. Victimology is a concept developed in the administration of criminal justice by the passage of time. Crl.R.P. No. 1017 of 2003 8 Therefore, I am of the view that in the instant case though the trial court has already taken a lenient view, the prison term can be reduced to some extent by giving compensation to the victim. It is to be remembered that misplaced sympathy cannot also have any place in the criminal adjudicatory process. On a proper balancing of the above aspects, I am inclined to reduce the substantive sentence of simple imprisonment in lieu of granting compensation to the victim by him.
10. In supersession of the sentence imposed by the trial court and confirmed by the appellate court the revision petitioner will stand sentenced to undergo simple imprisonment for 15 days each for the offences under Sections 341 and 323 of IPC and he is further sentenced to undergo simple imprisonment for one month and to pay a compensation of 20,000/- to PW2 under Section 357 (3) of Cr.P.C for the offence under Section 326 of the IPC. In default, he shall undergo simple imprisonment for 20 days. Set off is also allowed. The sentence shall run Crl.R.P. No. 1017 of 2003 9 concurrently. This revision petition is disposed of accordingly. Sd/-K.HARILAL JUDGE OKB/MJL