Revision petitioner is challenging the conviction under Section 326 I.P.C imposed on him by the trial court, which was later confirmed in appeal by the learned Sessions Judge.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
3. Case against the revision petitioner, in short, is that on 01-10-1995 at about 12.30 p.m., he caused grievous hurt to PW1 by cutting on his left wrist with a sword. The incident happened from the courtyard of PW2. At the time of trial, prosecution examined eight witnesses and marked six documents. DW's 1 and 2 are the defence witnesses. Ext.D1 is the document marked by the defence.
4. Learned counsel for the revision petitioner contended that the evidence in this case was misread by the courts below, which resulted in miscarriage of justice. According to him, the evidence was wrongly appreciated and therefore the revisional powers of this Court have to be invoked to correct the mistake. Per contra, learned counsel for the revision petitioner contended that the conviction and sentence are proper in this case and it is based on the evidence on record. Both the lower appellate court and the trial court relied on the testimony of PW's1 to 3.
5. PW1 is the injured witness. According to him, on 01-10-1995 at about 12.30 p.m., the revision petitioner attacked him with a sword from the courtyard of PW2. It is the case that the revision petitioner inflicted a cut injury with a sword, while PW1 was talking to PW2. The blow was directed against his neck. Luckily, he warded off the cut with his left hand. In the attack, his left wrist was severely damaged. Immediately after receiving the injury, he fell down and became unconscious. He was taken to Medical College Hospital and treated there for 13 days. Motive for the incident alleged by PW1 is that the revision petitioner had come to his wife's pan shop and purchased a cigarette. Thereafter, he picked up quarrel with PW1's wife. The pan shop was in front of his house. On hearing the altercation, PW1 came out and sent the revision petitioner away. Infuriated by this act of PW1, he attacked him.
6. PW2 is the owner of the property. The incident happened from the courtyard of PW2. She also testified in support of the prosecution case. In spite of cross examination conducted on PW's 1 and 2, in all material particulars they supported each other.
7. PW3 was a passerby, who had occasions to see the incident. It is his case that he saw PW1 lying on the floor in a pool of blood. At that time, the revision petitioner was running towards west with a sword. Testimony of this witness also lends support to the prosecution case.
8. Court below placed reliance on the testimony of PW5, the Doctor, who treated PW1. Ext.P2 is the wound certificate. PW5 examined the accused at about 1.30 p.m on the same day. It is shortly after the incident. It is the recitals in Ext.P2 wound certificate that the left wrist of PW1 was cut and palm was hanging on the skin. X-ray confirmed fracture of bones. It is evident that a sharp weapon was used to cut the left wrist of PW1, which caused extensive injury.
9. Testimony of PW7, the Investigating Officer was also considered by the court below. Totality of evidence adduced by the prosecution would clearly show the involvement of the revision petitioner in the offence. Learned counsel for the revision petitioner contended that glaring incongruity in the testimony of PW's 1 to 3 would weaken the prosecution case. It is to be borne in mind that this is a case, wherein, direct oral evidence regarding the incident was adduced by the prosecution. If all the witnesses uniformly deposed the same fact in a same fashion, then, as observed by the Apex court in many decisions, that itself would be a doubtful reason to accept their evidence. Minor contradictions cannot be taken as a reason to throw away the reliable testimony. I find no material to discard the oral evidence adduced by the prosecution witnesses cited to prove the incident.
10. Learned counsel for the revision petitioner contended that non recovery of weapon weakens the prosecution case. According to him, the weapon allegedly used by the revision petitioner was not recovered. Also, the doctor, who issued Ext.P2 wound certificate was not questioned regarding the nature of weapon. It is true that non recovery of weapon may be fatal in some cases. But it cannot be stated as a universal rule that in all cases, where the weapon of oppression could not be recovered in the course of investigation, the case should end in an acquittal. It depends on the facts and circumstances of each case. Here, the oral evidence adduced by the prosecution witnesses emphatically show that the revision petitioner attacked PW1 with a sword stick causing injury. The Investigating officer has stated a reason that the accused could not be taken to custody as he surrendered before the court and obtained bail. It may appear that it is not a convincing answer. But then, it is axiomatic that non recovery of weapon cannot be treated as a vital flaw in the prosecution case. I find in the light of the convincing oral evidence that the accused cannot get any benefit for this reason. Learned Public Prosecutor relied on a decision in Rajinder and Others v. State of Haryana (AIR 2004 SC 4352) to contend that non recovery of the weapon is not a reason to acquit the accused.
11. On going through the oral and documentary evidence adduced in this case, I am of the view that conviction of the appellant by the courts below is perfectly legal and it should be upheld.
12. Learned counsel for the revision petitioner contended that elapse of time after the incident and the agony of prolonged prosecution will make the revision petitioner entitled to request for leniency in the matter of sentence. It is true that the sentence can be suitably modified in this case.
In the result, the revision petition is partly allowed. Conviction of the revision petitioner under Section 326 I.P.C is confirmed. The sentence is reduced and he shall undergo rigorous imprisonment for a period of one year and pay a fine of Rs.25,000/- (Rupees twenty five thousand only). If the fine amount is recovered, it shall be paid as compensation to PW1 under Section 357(1) Cr.P.C. If fine is not paid, the revision petitioner shall undergo simple imprisonment for a further period of six months.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD, amk JUDGE.