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2024 DIGILAW 981 (KER)

CHINNAPPAN S/O MUTHUSWAMI v. STATE OF KERALA

2024-08-05

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Revision Petition has been filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, challenging the judgment in Crl. Appeal No. 137/2018 on the files of Additional Sessions Court, Thodupuzha, dated 06.05.2024, arising out of the judgment in C.C. No. 245/2013 on the files of the Judicial Magistrate of First Class-II, Peerumedu, dated 28.09.2018. 2. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor on admission. 3. In this matter, the prosecution case is that on 07.11.2012 at 10.00 a.m., the accused criminally trespassed into the veranda of PW1's residence bearing building No. 174, Ward No. 18 of Vandipperiya Panchayat, which forms part of a layam building with an iron pipe, after making preparation to commit offence on account of his previous enmity towards PW1 and his wife Devaki, a deaf and dumb lady and voluntarily caused grievous hurt to PW1 and his wife Devaki by striking with the iron pipe, causing fracture of bone on the right forearm of PW1 and fracture of both bones of the left forearm of Devaki and thus the accused had committed offence punishable under Sections 452 and 326 of the Indian Penal Code. 4. On completing the pre-trial formalities, the trial court recorded the evidence of PW1 to PW8 and Exhibits P1 to P8 as well as MO1 were marked. Later, the trial court completed trial and heard the matter on merits. Accordingly, the trial court convicted and sentenced the accused as under: “1. The accused is found guilty for the offence punishable U/s. 326 IPC and he is convicted for the said offence U/s. 248(2) Cr.P.C. The accused is sentenced to undergo: Simple imprisonment for a period of two years and with fine of Rs. 1,000/- (Rs. One Thousand only) for the offence punishable U/s. 326 IPC. If the fine amount is not paid the accused will undergo Simple Imprisonment further for a period of 10 days. Set off allowed. 2. The accused is found not guilty for the offence punishable U/s. 452 IPC and he is acquitted for the said offence.” 5. Thus the accused was convicted and sentenced for the offence punishable under Section 326 of IPC, while acquitting him from the offence punishable under Section 452 of IPC. 6. Set off allowed. 2. The accused is found not guilty for the offence punishable U/s. 452 IPC and he is acquitted for the said offence.” 5. Thus the accused was convicted and sentenced for the offence punishable under Section 326 of IPC, while acquitting him from the offence punishable under Section 452 of IPC. 6. Challenging the trial court judgment, appeal was filed before the Sessions Court and the Additional Sessions Court heard the appeal and concurred with the finding of conviction while modifying the sentence for the offence under Section 326 of IPC as under: (i) Conviction of the appellant/accused in CC 245/2013 by the Judicial Magistrate of the First Class-II Peer made for the offence punishable u/s. 326 of IPC is hereby confirmed. (ii) In suppression of the sentence imposed by the trial court, accused/appellant is sentenced to undergo simple imprisonment for 6 months and to pay fine of Rs.1,000/- in default, to undergo simple imprisonment for 10 days. Set off allowed by the trial court shall be available to the accused/appellant. (iii) Accused/appellant is directed to surrender before the trial court to receive the modified sentence on 14.6.2024. On his failure, trial court shall execute the modified sentence as per law. Return the trial court records at the earliest. 7. While assailing the -concurrent7- verdict of conviction for the offence punishable under Section 326 of IPC and the modified sentence imposed on the appellant by the appellate court, the learned counsel for the petitioner pointed out that during cross examination, PW1 stated that the Investigating Officer shown MO1 weapon before start of trial and the same is a serious anomaly to disbelieve the entire prosecution. In fact, this challenge was raised before the appellate court and in paragraph No. 9, the appellate court considered the same and found that MO1 pipe was in the court custody after it was produced by the Investigating Officer as per Ext.P7 property list on 07.01.2013 and there was nothing on record to show that the said pipe was returned to the Station House Officer for keeping in safe custody or given to the Prosecutor or any other person when PW1 was present in court for giving evidence. Therefore, the learned Additional Sessions Judge after re-appreciating the evidence of PW1 and PW2 held that the prosecution succeeded in proving that the accused herein attacked the PW1 by using MO1 pipe and the same caused grievous hurt to her and thereby the accused committed offence under Section 326 of IPC, while confirming the finding of conviction. 8. Coming to the ingredients to attract offence under Section 326 of IPC, reference to Section 326 of IPC is necessary and the same is extracted hereunder: 326. Voluntarily causing grievous hurt by dangerous weapons or means - Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance or be means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 9. Therefore, the ingredients to attract offence under Section 326 of IPC are voluntarily causing grievous hurt by means of any instrument used as a weapon of offence or likely to cause death or by other means except in the case provided for by Section 335 of IPC. Section 320 of IPC deals with grievous hurt. As per the 7th item in Section 320 of IPC, fracture or dislocation of a bone or tooth by the act of the accused would attract grievous hurt for the purpose of Section 326 of IPC. In the instant case, the specific allegation of the prosecution is that the accused beat on the right and left forearms of PW1, his wife, by using an iron pipe and accordingly, she suffered fracture on the bone of the right forearm as well as both bones of the left forearm. Thus the available evidence would suggest that the accused voluntarily caused grievous hurt to PW1 and thereby, the ingredients to attract offence punishable under Section 326 of IPC are proved by the prosecution, beyond reasonable doubt. Thus the available evidence would suggest that the accused voluntarily caused grievous hurt to PW1 and thereby, the ingredients to attract offence punishable under Section 326 of IPC are proved by the prosecution, beyond reasonable doubt. Therefore, the trial court as well as appellate court rightly found that the accused committed offence punishable under Section 326 of IPC. 10. On perusal of the concurrent verdicts, nothing substantiated to warrant interference, in so far as the conviction, imposed against the accused, for the offence punishable under Section 326 of IPC is concerned. 11. Coming to the sentence, the appellate court reduced the sentence of imprisonment for a period of six months and payment of fine of Rs.1,000/-. In default of payment of fine, ten days imprisonment also was imposed. The said sentence is very reasonable and the same also does not require any interference. In such view of the matter, the verdicts impugned do not require any interference. 12. Accordingly, this Criminal Revision Petition fails and is dismissed.