Revision petition challenging the concurrent findings of the courts below wherein the petitioner was convicted for an offence under Section 326 of the Indian Penal Code (in short, “IPC”) and imposed simple imprisonment for one year and directed to pay a fine of `1,000/-.
2. Heard Shri M.T.Suresh Kumar, learned counsel for the revision petitioner and Shri K.K.Rajeev, learned Public Prosecutor.
3. Prosecution case, in short, is that on 10.10.1996 at about 1.00 p.m., the revision petitioner/accused attacked PW2 and inflicted a cut injury on his left hand causing fracture of ulna and radius and also caused a gapping wound on the left wrist. Prosecution contended that there was a civil dispute between the parties and the incident occurred when the disputed property was being measured with the help of a Surveyor.
4. 14 witnesses were examined on the prosecution side and five documents were marked. DWs 1 and 2 are the defence witnesses. Exts.D1 and D2 were marked on the defence side. MO1 is the weapon of oppression alleged to be used by the revision petitioner against PW2.
5. Learned counsel for the revision petitioner submitted that wrong appreciation of evidence caused miscarriage of justice. According to him, the courts below did not consider the oral evidence correctly. The defence has a case that the accused is a epileptic patient. That apart, the defence case is that there was a scuffle between PW3 and the accused, in which PW2 meddled with and sustained injuries. Learned counsel for the revision petitioner also contended that if at all there was any injury inflicted by the accused on PW2, that was in the fit of sudden provocation. Therefore, the conviction, if at all sustainable, should have been under Sec.335 IPC.
6. Per contra, learned Prosecutor contended that the evidence tendered by the prosecution witnesses clearly indicated that the accused attacked PW2 with the intention to inflict a cut injury with MO1 chopper on the left wrist, which almost severed the palm. PWs 1, 3 and 4 are the eye witnesses to the incident. PW2 is the injured witness. All of them deposed that the accused attacked PW2 with MO1 chopper and there was no provocation either from PW2 or any other witness. The cross-examination on these witnesses could not make out any dent or discredit in their versions. PW10, Dr. Peter Anthraper, treated PW2 from Specialist Hospital, Ernakulam and he issued Ext.P2 wound certificate. The injuries noted in Ext.P2 are as follows:
“Incised wound across the left dorsum through wrist joint hand is attached to forearm by skin and flexor tendons only extending from medial to lateral aspect extensor aspect of forearm.
Open fracture left wrist distal end of radius and ulna.”
It can be seen from Ext.P2 and the testimony of PW10 that the victim suffered grievous injuries in the incident. The case that the accused inflicted the injuries on PW2 on a sudden provocation is not established either by direct evidence or from the cross-examination of material witnesses. I find no irregularity or illegality in the matter of appreciation of evidence at the hands of the courts below. Therefore, the conviction of the revision petitioner under Sec.326 IPC is legal and to be upheld. I do so.
7. Learned counsel for the revision petitioner contended that the revision petitioner and the injured are near relatives. That apart, the revision petitioner/accused is an epileptic patient. He is looking after a handicapped sister. He is a farmer by profession. He has to support a family consisting of wife and two girl children. Reckoning the entire facts, the learned counsel submitted that imprisonment awarded to the revision petitioner may be reduced. It is pertinent to note that the courts below have given only a moderate sentence. That apart, no compensation was directed to be paid to PW2 in spite of the fact that he sustained very grievous injuries and he was treated in a private hospital. Considering the entire facts and circumstances, I am of the view that the sentence has to be modified in the following manner.
In the result, the revision petition is partly allowed. Conviction of the revision petitioner under Sec.326 IPC by the courts below is confirmed. The imprisonment awarded by the courts below is reduced to simple imprisonment for a period of three months. Revision petitioner shall also pay a fine of `25,000/- (Rupees twentyfive thousand only) and the fine, if realised, shall be paid as compensation to PW2/injured under Section 357(1) of the Code of Criminal Procedure. If the fine amount is not paid or if it is not recovered from the revision petitioner, he shall undergo simple imprisonment for a period of six months as default sentence. The revision petitioner is entitled to get set off under Sec.428 of the Code of Criminal Procedure. Court below shall take steps to execute the sentence on receipt of records from this Court.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
cks A.HARIPRASAD, J.
Crl.R.P. No.1512 of 2003 ORDER 4th November, 2014