Revision petitioner was convicted by the trial court for the offence under Section 326 of the Indian Penal Code. Dissatisfied with the conviction and sentence, he approached the learned Sessions Judge in appeal. In that appeal, the conviction was confirmed, but the sentence was reduced. Feeling aggrieved, the accused has come up in this revision. 2. Heard the learned counsel for the revision petitioner and learned Public Prosecutor.
3. The short facts are as follows :
At about 10 a.m. on 29.11.1998, the revision petitioner voluntarily caused grievous hurt to P.Ws.1 and 2, his own sisters by beating them with a piece of firewood. It is the prosecution case that, P.Ws.1 and 2 went to the house of one Kunhimohammed, where the revision petitioner was cutting logs. They questioned the revision petitioner for his selling away a co-ownership property and for that reason the revision petitioner/accused attacked them.
4. The trial court examined 12 witnesses and marked 7 documents. Exts. D1 and D2 are the contradictions marked by the defence.
5. The question to be decided in a criminal revision is about the legality, correctness or propriety of sentence or order passed by the court below.
6. I have gone through the oral evidence in this case.
P.Ws.1 and 2 are the injured witnesses, who suffered beating at the hands of the revision petitioner. Their version is that, on 29.11.1993 at about 10 a.m., they went to the house of one Kunhimohammed, where the revision petitioner was engaged as a coolie. He was cutting logs at that time. P.Ws.1 and 2 asked the accused as to why he sold away the property over which they also had a joint right. Suddenly the revision petitioner beat P.W.1 causing fracture of both bones of her right hand. Thereafter, when the P.W.2 meddled with the matter, she was also attacked causing a fracture on the occipital area of head. Ext.P2 is the wound certificate relating to P.W.2 and Ext.P3 is the wound certificate in respect of P.W.1. P.Ws.3 and 4 are the doctors examined to prove these documents.
7.P.W.3 deposed that P.W.1 sustained fracture on both bones of right forearm. The recitals in the would certificate made by P.W.3 would show that P.W.1, sustained injuries (viz; fractures) on account of beating by firewood by the accused. Similarly, wound certificate relating to P.W.2 also shows that the accused inflicted injury to her. These statements are the ones made first in point of time. Such statements, if not effectively challenged, can be accepted as the true version of the incident. P.W.2 was treated in District hospital, Manjeri.
The oral evidence of the injured witnesses coupled with the testimony of the doctors would show that the attack unleashed by the revision petitioner in both P.Ws. 1 and 2 caused the fractures.
8. The learned counsel for the appellant submitted that in the cross examination P.W.1 had stated that the revision petitioner hit her with a firewood and case of beating had been completely deviated. Considering the fact that, both P.Ws.1 and 2 were illiterate and rustic witnesses and also that they were aged, the consistent case of prosecution cannot be discarded only on the slip of tongue.
9. The learned counsel further contended that the offence under Section 326 IPC is not made out. If at all the prosecution case is taken as proved, it will only reveal the offence under Section 335 IPC. Section 335 IPC deals with voluntarily causing grievous hurt on provocation. The expression “provocation“ could be seen in Section 300 of IPC. Learned authors Ratanlal & Dhirajlal in their commentary on Law of Crimes shows that provocation in law consists mainly of three elements :
(i) the act of provocation;
(ii) the loss of self-control, both actual and reasonable; and
(iii) the retaliation proportionate to the provocation.
10. What is stated by P.Ws.1 and 2 is that, they went to question the revision petitioner about his unilateral act of selling away a co-ownership property. By no stretch of reasoning it can be stated that the retaliation of the revision petitioner was proportionate to the provocation, if at all one considers that demand for due shares can be treated as provocation. Therefore, I am of the view that the offence under Section 326 IPC is properly attracted in this case. I find no justification to interfere with the conviction of the revision petitioner under Section 326 of IPC.
11. The learned counsel for the revision petitioner submitted that the accused must be now 72 years going by calculation of time. Similarly, the injured witnesses also must be aged more than 80 as they are elder to the accused.
12. The learned counsel submitted that some leniency may be shown to the accused. In this case, learned Sessions Judge has reduced the sentence considerably. But I find no award of compensation made by the learned Sessions judge in this matter. The injured witnesses suffered fractures and considering the entire facts, I find that the sentence can be modified in the following manner :
13. In the result, revision petition is partly allowed. Conviction of the revision petitioner under Section 326 IPC is confirmed. He shall undergo simple imprisonment for a period of one month and pay a fine of `10,000/- under Section 326 of IPC. If fine is recovered, it shall be paid in moieties to P.Ws. 1 and 2 under Section 357(1) of Cr.P.C. Court below shall take steps to execute the sentence.
AMV/04/12/ Sd/- A.HARIPRASAD, JUDGE.
/TRUE COPY/ P.A.TO JUDGE