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SAJI v. STATE - Crl Rev Pet No. 2401 of 2006 [2006] RD-KL 237 (14 July 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 2401 of 2006()

1. SAJI, S/O. KUTTAPPAN,
... Petitioner

Vs

1. STATE - S.I. OF POLICE, S. BATHERY,
... Respondent

For Petitioner :SRI.GRASHIOUS KURIAKOSE

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :14/07/2006

O R D E R

R. BASANT, J.


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Crl.R.P.No. 2401 of 2006
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Dated this the 14th day of July, 2006

O R D E R

This revision petition is directed against the concurrent verdict of guilty, conviction and sentence in a prosecution, under Section 325 I.P.C.

2. The crux of the allegations against the petitioner/accused is that at 1.30 p.m. on 4.8.1998 on account of prior animosity he had an altercation with PW1. She was pushed down and stabbed with a knife. She suffered injuries including a fracture. The prosecution alleged that the petitioner has committed the offence under Section 325 I.P.C. Investigation commenced with Ext.P1 F.I. statement lodged by PW1. Ext.P4 F.I.R. was registered on the basis of Ext.P1. Investigation culminated with the final report submitted by PW9.

3. Consequent to the plea of not guilty raised by the accused, prosecution examined PWs. 1 to 9 and proved Exts. P1 to P5. PWs . 1 to 3 are the victim, aged about 70 years, her daughter and her grand Crl.R.P.No. 2401 of 2006 2 daughter, who all had allegedly witnessed the occurrence. PW4 is the doctor, to whom PW1 was taken immediately after the incident. He examined her at 4 p.m. on 4.8.98 and issued Ext.P2 wound certificate, in which the allegation that the petitioner had attacked the victim with a knife is unambiguously stated. PW5 is an attester to Ext.P3 scene mahazar. PW6 recorded and registered Ext.P4 F.I.R. PW7 doctor was examined to prove Ext.P5 discharge certificate and to confirm the fracture. PWs. 8 and 9 are police officials who had roles to play in the registration of the crime and its investigation.

4. The accused took up a defence of total denial. A suggestion is raised that PW1 must have suffered the injury when she was tying a cow and she was taking advantage of the injury suffered by her to raise false allegations against the petitioner. The petitioner did not adduce any defence evidence. The courts below concurrently came to the conclusion that safe reliance can be placed on the oral evidence of PW1. They further relied on PWs. 2 and 3 as also Ext.P2 wound certificate issued by PW4 and the contents of Ext.P1 F.I. statement lodged on 5.8.98 to draw inspiration for the oral evidence of PW1. Accordingly the courts proceeded to pass the Crl.R.P.No. 2401 of 2006 3 impugned concurrent judgments.

5. The petitioner now faces a sentence of R.I. for two years and to pay a fine of Rs.5,000/- under Section 325 I.P.C. Out of the fine amount, if realised, an amount of Rs.2,500/- is directed to the released to the victim as compensation under Section 357(1) Cr.P.C.

6. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner contends that the courts below erred grossly in placing reliance on the oral evidence of PW1. PWs. 1 to 3 are inter se related closely and admittedly there is prior animosity also. In these circumstances in the absence of independent ocular corroboration, the evidence of PWs. 1 to 3 should have been discarded. It is further contended that there is an incongruity between the case of the prosecution and the version of the witnesses. The injury was suffered on the hand on the forearm by PW1. The situs of the fracture is different from the situs of the external injury. The prosecution has alleged that the fracture was suffered in the course of a fall, whereas, the witnesses asserted that the fracture was suffered because of the stab. This is an irreconcilable incongruity and the Crl.R.P.No. 2401 of 2006 4 benefit of doubt must be conceded to the accused, it is contended. The learned counsel further contended that, at any rate, benefit of doubt must be conceded to the accused and leniency may be shown on the question of sentence.

7. PWs. 2 and 3 are interested undoubtedly. The victim is their mother/grand mother. PW1, the victim, is also interested because she is the one who had suffered the injury. Prior animosity is also indicated. I shall for a moment assume that the oral evidence of PWs. 2 and 3 need not be considered at all. Even then we have the evidence of PW1 about the circumstance under which she, a woman aged about 70 years, had suffered the injuries. There was an altercation. She had fallen on the ground. There was a stab injury also. This is the allegation made by her. She is not an expert on medicine and her explanation as to whether she had suffered the fracture because of the fall or because of the stab injury cannot be given undue significance.

8. The prosecution did not make a specific allegation that the fracture was suffered because of the stab injury and that explains why the offence charged against the accused is only under Section 325 I.P.C. and Crl.R.P.No. 2401 of 2006 5 not under Section 326 I.P.C. PW1's version that she had suffered injuries is indicated convincingly by the injury found on her person by the doctor, PW4, which is recorded in Ext.P2 wound certificate. As to how she suffered the injury, we have the prompt version coming forth from her, which is recorded in Ext.P2, which shows the place, the manner and the person who inflicted the injury. Ext.P2 affords convincing assurance for the oral evidence of PW1. Even if one were to assume that the evidence of PWs. 2 and 3 need not be accepted the verdict of guilty and conviction is eminently supported by the oral evidence of PW1 as also the contents of Exts. P1 and P2. The learned counsel for the petitioner submits that in all probability the injury was suffered in a fall. There may have been an altercation. The weapon having not been recovered the accused cannot be said to have inflicted the injury with any weapon. Benefit of doubt on this aspect may be given to the petitioner it is alleged. I note that the conviction is not entered under Section 326 I.P.C. An injury inflicted by a knife is convincingly indicated by the injury noted in Ext.P2 and the oral evidence of PW4. The fact that PW4 stated that the injury could have been suffered by a fall is no reason to assume that the oral evidence of PW1 on that aspect Crl.R.P.No. 2401 of 2006 6 cannot be believed. The inability of the prosecution to trace the weapon cannot in a case like the instant one deliver any advantage to the indictee or help him to succeed in the plea for benefit of doubt. I do not in these circumstance find any merit in the challenge raised against the impugned verdict of guilty and conviction. The challenge must and does fail.

9. Coming to the question of sentence, the learned counsel for the petitioner prays that leniency may be shown on the question of sentence. The petitioner is at present aged 29 years and he is shown to have caused injuries to the victim, a woman aged about 70 years. The counsel prays that maximum leniency may be shown in favour of the petitioner and he may be saved of a deterrent substantive sentence of imprisonment. I am unable to agree with the learned counsel. I have already found that the allegations have been established satisfactorily. Leniency can,of course, be shown in as much as the petitioner is not shown to be having any criminal antecedents. But a deterrent substantive sentence of imprisonment is certainly necessary and warranted. Deterrence in a case like the instant one does not depend on the length of the term which the offender spends behind the bars. Substantive sentence of imprisonment can be reduced, but cannot Crl.R.P.No. 2401 of 2006 7 be avoided altogether. I am further satisfied that an appropriate direction for payment of compensation, which will ensure the interests of adequate compensation of the victim, must also be imposed. The sentence can be modified to the above extent.

10. In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction of the petitioner under Section 325 I.P.C. are upheld. ) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo S.I. for a period of six months. He is further directed to pay an amount of Rs.15,000/- as compensation and in default to undergo S.I. for a period of three months. If realised the entire amount shall be released to the complainant.

8. The petitioner shall appear before the learned Magistrate on or before 1.9.2006 to serve the modified sentence hereby imposed. The sentence shall not be executed till that date. If the petitioner does not so appear, the learned Magistrate shall thereafter proceed to take necessary Crl.R.P.No. 2401 of 2006 8 steps to execute the modified sentence hereby imposed. (R. BASANT) Judge tm


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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