Unsuccessful accused in C.C.No.148/03 on the file of the Judicial First Class Magistrate Court, No-II, Thiruvananthapuraum is the revision petitioner herein.
2. The revision petitioner was charge sheeted by the Additional Sub Inspector of Police, Peroorkada police station in Crime No.420/2002 under Section 323 and 324 of Indian Penal Code.
3. The case of the prosecution in nutshell was that on 16.11.2002 at about 10.45 p.m at Thuruthummoola muri, Indira Nagar Road of Peroorkada village, the revision petitioner on account of his enmity with the de facto complainant after consuming alcohol trespassed into his residential compound and beat him with a wooden log a dangerous weapon and inflicted injuries to his testicles with an iron rod and thereby, he had committed the offence punishable under Sections 323 and 324 of Indian Penal Code.
4. When the revision petitioner appeared before the court below, charge under Sections 323 and 324 of Indian Penal Code was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 7 were examined and Ext.P1 to P5 were marked on their side. After closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure, but, he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he is innocent of the same and he has been falsely implicated in the case. The de facto complainant was attacked by somebody else who is having enmical terms with him and he has been falsely implicated. In order to prove his case, DWs 1 and 2 were examined and Ext.D1 was marked.
5. After considering the evidence on record, the trial court found the revision petitioner guilty under Section 323 and 324 of Indian Penal Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month under Section 323 of Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for three months under Section 324 of Indian Penal Code and directed the substantive sentence to run concurrently. It is further ordered that if the fine amount is realised, the same was directed to be paid to the de facto complainant as compensation under Section 357 (1) (b) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.89/09 before the Sessions Court, Thiruvananthapuram which was made over to Additional Sessions Court, No-II, Thiruvananthapuram for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction, but, reducing the sentence as follows:
He was sentenced to undergo rigorous imprisonment for three months and also to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months under Section 323 of Indian Penal Code and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of Rs.10,000/- in default to undergo simple imprisonment for three months more and further directed to pay the fine if realised to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. Dissatisfied with the same, the present revision has been filed by the revision petitioner-accused before the court below.
6. Since records have been received and this court has already suspended the sentence without admitting the revision, this court felt that the revision can be admitted and heard and disposed of on merit. So, the revision is admitted and heard and disposed of today itself after hearing both sides.
7. The Counsel for the revision petitioner submitted that there is difference in version regarding the place of occurrence as stated by PW2 in the wound certificate and at the time of evidence. Further, the weapon of offence alleged to have been used for the commission of offence has not been recovered. The appellate court had disbelieved the evidence of PW1 and relied on the interested testimonies of PWs 2 and 4 alone to prove the incident and it cannot be said that their evidence is sufficient to prove the case against the revision petitioner beyond reasonable doubt and he is entitled to get acquittal.
8. On the other hand, the learned Public Prosecutor supported the concurrent findings of the court below on this aspect.
9. The case of the prosecution has emerged from the prosecution witnesses was as follows:
10. On 16.11.2002 at about 10.45 p.m, when PW2 came to close down his gate of the compound, he saw the accused urinating on the side of the compound and when it was questioned, enraged on account of the same, he came to the gate and attacked him with the wooden log and on account of that, he fell down and when he was about to get up he was beaten with an iron rod which caused injuries to his testicles. When PW4 came there, he left the place throwing the weapon in the hospital compound. Thereafter, he was taken to hospital and he was seen by PW5 Doctor who issued Ext.P3 wound certificate. On getting intimation regarding the admission of PW2 in the hospital, PW3 Head Constable attached to Peroorkada Police Station went to hospital and recorded Ext.P1 statement of PW2 and prepared Ext.P1(a) body mahazar and came back to police station and registered Ext.P2 First Information Report as Crime No.420/02 of Peroorkada police station against the revision petitioner under Section 323 and 324 of Indian Penal Code. The investigation in this case was undertaken by PW7 who went to the place of occurrence and prepared Ext.P4 scene mahazar in the presence of PW3 and another. He questioned the witnesses and recorded their statement, he filed Ext.P5 report showing the name and address of the accused. He completed the investigation and submitted the final report.
11. PW1 was examined as an independent witness.
But, the appellate court had disbelieved his evidence relying on the evidence of DWs 1 and 2 and Ext.D1 copy of the I.P register which will go to show that no person by Babukuttan for whom he stood as by stander in the hospital and happened to see the incident was not admitted in that hospital as there is no possibility for him to come to the place as claimed by him. It was on that sole ground that the evidence of PW1 was disbelieved by the appellate court. However, I am not going into that question in this revision. PW2 is the injured in this case. He had categorically stated that on the date of incident, while he came to close down the gate of the compound, he saw the revision petitioner standing outside and urinating from there and he asked whether it was Ramakrishnan Nair and at that time, the revision petitioner came and beaten with him with a wooden log and when he fell down and he was about to get up, he was stabbed with a iron rod and he sustained injuries to his testicles and on seeing this, PW4 rushed to the spot and on seeing PW4, the revision petitioner left the place throwing the weapon of offence alleged to have been used for the commission of offence. It is true that in Ext.P3 wound certificate, the place of occurrence was noted as from the house. But, PW2 had categorically stated that he had not given the cause of injury to the Doctor. Further, the Doctor has stated that it could have been given by the injured. But, it was brought out in evidence that he sustained injuries to his testicles and he was accompanied by PW4 and an identified person. So, the possibility of cause of injury being given to some other person cannot be ruled out. So, under the circumstances, court below was perfectly justified in discarding the place of occurrence mentioned in the wound certificate as a ground to disbelieve the case of the prosecution in view of the oral testimony given by PWs 2 and 4 regarding the incident.
12. The evidence of PW2 regarding the incident was supported by the case of PW4 his wife. It may be mentioned here that the incident occurred at about 10.45 p.m and it was from near the gate of the house of PW2. So, one cannot expect that there will be independent witnesses available at that time to see the incident. So, probably, the inmates of the house or the husband and wife alone will be the persons who will be available to depose about the incident which happened near their house. Further, it is settled law that merely because the independent witnesses did not support the case of the prosecution or only the interested and related witnesses were available to prove the prosecution case alone is not sufficient to disbelieve the prosecution version. If the evidence of those witnesses are trustworthy and believable, then, there is nothing for the court to rely on their evidence and base conviction on the basis of that evidence. But, court must be cautious while evaluating such evidence before basing conviction on the basis of such evidence alone. In this case, there is no enmity brought out for PW2 and PW4 to falsely implicate the revision petitioner in a case like this. Further, the fact that he sustained injuries has not been disputed as well. So, under the circumstances, the courts below were perfectly justified in relying on the evidence of PWs 2 and 4 to come to the conclusion that the prosecution has proved the case against the revision petitioner beyond reasonable doubt that he had committed the offence of causing injury to the injured PW2 with dangerous weapon. It is true that the weapon of offence has not been recovered. But, that alone is not sufficient to come to the conclusion that the prosecution case is not believable. Any laches on the part of the investigating agency in discharging their duty of recovering the weapon or not giving any explanation for the same is not a ground for acquittal. Further, the Doctor has deposed that the injuries could be possible by using such weapon. One cannot say that a wooden log and an iron rod cannot be said to be a dangerous weapon as as mentioned in Section 324 of Indian Penal Code. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that the appellant had committed the offence punishable under Section 323 and 324 of the Indian Penal Code and rightly convicted him for the said offence and the concurrent findings of the court below do not call for any interference.
13. As regards the sentence is concerned, the trial had sentenced him to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month under Section 323 of Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.10,000/- in default to undergo imprisonment for three months under Section 324 of Indian Penal Code and it is further ordered that the fine amount if realised be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure and directed the substantive sentence to run concurrently. But, the appellate court had reduced the substantive sentence to three months under Section 323 of Indian Penal Code and one year under Section 324 of Indian Penal Code but, retained the fine and default sentence and direction to pay compensation.
14. The Counsel for the revision petitioner submitted that the revision petitioner was aged 62 years at the time of commission of the crime and the incident happened in the year 2002 and he is much more older now. It is true that serious injury has been caused to the testicles of PW2 and dangerous weapon also used for that purpose. But, considering the age of the revision petitioner, this court feels that directing him to pay compensation instead of sending to jail will be sufficient punishment and considering the principles of victimology, it is always necessary that sufficient provision for compensation has to be provided to the victim also where he sustained some injuries and sending the revision petitioner to jail alone will not serve any purpose. The courts below were perfectly justified in not invoking the provisions of Probation of Offenders Act in this case.
15. So, under the circumstances, this court feels that sentencing the revision petitioner to pay fine of Rs.1,000/- in default to undergo simple imprisonment for one month under Section 323 of Indian Penal Code and further sentenced to undergo imprisonment till rising of court and also to pay a compensation of Rs.25,000/- in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure for the offence under Section 324 of Indian Penal Code will be sufficient and that will meet the ends of justice considering the peculiar circumstances of the case. So, the sentence imposed by the court below is set aside and the same is modified as follows:
The revision petitioner is sentenced to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month under Section 323 of Indian Penal Code and further sentenced to undergo imprisonment till rising of court and also to pay a compensation of Rs.25,000/- to the complainant PW2 in default to undergo simple imprisonment for three months under Section 357(3) of Code of Criminal Procedure for the offence under Section 324 of Indian Penal Code. If any amount has been remitted before the court below towards the fine as directed by this court while suspending the sentence, then, that can be given credit to the compensation awarded by this court. One month time can be granted to the revision petitioner to pay the amount and serve the sentence. Till then, the execution of sentence is directed to be kept in abeyance. If the amount is deposited by the revision petitioner before the court below, then, court below is directed to pay the same to the de facto complainant PW2 as compensation to the complainant as per rules.
With the above modification of the sentence alone, the revision is allowed in part and disposed of.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge