Revision petition by the accused in C.C No.231/1997 on the file of the Judicial First Class Magistrate Court, Adimaly, who lost the appeal filed against conviction and sentence before the Additional Sessions Court (Adhoc II), Thodupuzha. The appellant was charged with an offence under Section 326 I.P.C. During the course of trial, nine witnesses were examined and five documents were marked on the prosecution side. MO1 is the material object. Ext.D1 is the defence evidence. After considering the evidence, learned Magistrate convicted the revision petitioner on an altered charge under Section 324 I.P.C, instead of Section 326 I.P.C. Learned Sessions Judge on a reconsideration of the entire matter found that the conviction and sentence ordered by the court below were proper and dismissed the appeal. Challenging that finding, the revision petitioner has come up before this Court.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. Learned counsel for the revision petitioner submitted that the courts below misread the oral and documentary evidence. That caused a miscarriage of justice. That apart, the right of private defence of the revision petitioner was not properly considered by the courts below.
4. PW1 is the injured witness. On 06-03-1997, while he was plucking pepper from pepper vine, the revision petitioner trespassed into his property and attacked him with MO1 chopper causing an incised wound as revealed by Ext.P2 wound certificate. It is the case of PW1 that after inflicting the injury, the revision petitioner ran away to his compound with the chopper. He gave Ext.P1 F.I Statement to the police. PW1 subjected to cross examination. It came out in evidence that there was property dispute between the revision petitioner and PW1. Learned counsel for the revision petitioner submitted that PW1 suffered an injunction order directing not to enter the property of the revision petitioner. Knowing fully well, he trespassed into the property and plucked pepper from the vines. The revision petitioner was only exercising his right to private defence provided under Section 104 I.P.C. The case that the revision petitioner inflicted a cut injury by MO1 chopper is stoutly denied by the learned counsel for the revision petitioner. On going through the testimony of PW1, I find that in spite of cross examination, the case spoken to by him remains credible.
5. PW2 is wife of PW1, who came to the place of occurrence on hearing the cry of PW1. It is her version that she found her husband with a bleeding forehead and the revision petitioner ran away with MO1 chopper. Learned counsel for the revision petitioner contended that neither PW2 nor PW3 has as case that they had seen the incident. But these two witnesses speak of the happenings immediately after the incident. The courts below relied on the testimony of these witnesses to find that the appellant was the aggressor.
6. PW4 was the Assistant Surgeon attached to Government Hospital, Adimaly, who examined PW1 on the way to Medical College Hospital. Learned counsel for the revision petitioner contended that PW1 has no case that he was taken to any other hospital en route to Medical College Hospital. But, PW4 testified that he gave first aid to PW1 and he was moved to the Medical College Hospital. The records would show that the testimony of PW1 on this aspect is not correct. But that is not a reason to repel the entire case of PW1, which is found to be otherwise credit worthy.
7. MO1 chopper was recovered at the instance of the revision petitioner. It is proved through the Investigating Officer PW9. According to PW9, the chopper used for causing injury on PW1 was handed over by the revision petitioner from his house to PW9. Even though the independent witness cited to prove recovery of MO1 chopper under Section 27 of the Evidence Act turned hostile, from the reliable evidence of PW9, the courts below found that the revision petitioner used MO1 chopper against PW1.
8. Regarding the case of private defence, it will be apposite to refer to Section 104 I.P.C. It reads as follows :
“ 104. When such right extends to causing any harm other than death- If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.”
9. In this context, Section 99 I.P.C is also relevant.
There is a specific provision in Section 99 I.P.C that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In this regard, learned counsel for the petitioner would argue that the revision petitioner has only engaged in scuffle with PW1. There is no admission by the revision petitioner at any stage of evidence that he used MO1 chopper to repel PW1 from illegally plucking pepper. However, the parole evidence relied on by the court below show that he attacked PW1 with a chopper and that clearly exceeded the exercise of the right of private defence.
10. From the totality of evidence, I find no illegality, incorrectness or impropriety in the conviction of the appellant under Section 324 I.P.C. However, considering the fact that the incident was in the year 1997, I find that some leniency can be shown in the matter of sentence. The court below imposed rigorous imprisonment on the revision petitioner for a period of one year alone. Considering the entire facts and circumstances, I find that the imprisonment can be suitably modified.
In the result, the revision petition is partly allowed. The conviction of the revision petitioner under Section 324 I.P.C is confirmed. The sentence imposed is reduced to six months of rigorous imprisonment and he shall pay a sum of Rs.5,000/- as compensation to PW1 under Section 357(3) Cr.P.C, failing which he shall undergo simple imprisonment for a period of one month. The trial court shall issue appropriate process to see that the appellant is serving the sentence and paying the compensation. Notice shall be issued to PW1 informing his entitlement to claim compensation.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, amk JUDGE.
//True copy// P.A to Judge