Kerala High Court
Subramanian vs State Of Kerala on 30 October, 2024
Crl.R.P.No.284 of 2018 1 2024:KER:81065
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.REV.PET NO. 284 OF 2018
AGAINST THE JUDGMENT DATED 16.12.2017 IN CRL.A NO.300
OF 2015 OF SESSIONS COURT, PALAKKAD ARISING OUT OF THE
JUDGMENT DATED 28.10.2015 IN CC NO.697 OF 2008 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM
REVISION PETITIONER/APPELLANT/ACCUSED:
SUBRAMANIAN
AGED 46 YEARS
S/O. MANI, 'SRUTHI NILAYAM' KAVALAPARA,
KARAKKAD, SHORNUR, PALAKKAD DISTRICT.
BY ADV SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 31.
BY SMT.MAYA.M.N.-PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 9.10.2024, THE COURT ON 30.10.2024 DELIVERED THE
FOLLOWING:
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M.B.SNEHALATHA, J
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Crl.R.P.No.284 of 2018
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Dated this the 30th day of October, 2024
ORDER
Revision Petitioner herein assails the judgment in Crl.A.
No.300/2015 of Sessions Court, Palakkad by which the learned
Sessions Judge confirmed the conviction and sentence against
him in C.C.No.697/2008 for the offences punishable under
Sections 341, 323, 324 and 326 of Indian Penal Code (for short
'IPC').
2. Prosecution case is that on 7.8.2008 at around 3.30
pm the accused who is the husband of the defacto complainant
wrongfully restrained her in the courtyard of their residential
house at Karakkad, Shornur Village and manhandled her and
thereafter attacked her with an iron pipe and voluntarily caused
grievous hurt to her.
3. Accused pleaded not guilty to the accusation and
claimed to be tried.
4. To substantiate the charge levelled against the accused,
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prosecution examined PWs 1 to 9, marked Exts.P1 to P8 and
MO1. No defence evidence was adduced by the accused.
5. After trial, the learned Magistrate found the accused
guilty of the offences punishable under Sections 341, 323, 324
and 326 of IPC and he was convicted and sentenced for the said
offences. In the appeal preferred by the accused as Crl.A
No.300/2015, the learned Sessions Court, Palakkad confirmed
the conviction and sentence, which is under challenge in this
revision petition.
6. The learned counsel for the revision petitioner/accused
contended that there are material discrepancies and
inconsistencies in the versions of the prosecution witnesses
regarding the incident; that the trial court and the appellate
court went wrong in appreciating the evidence in its correct
perspective and therefore the impugned judgment of conviction
and sentence against the accused are to be set aside by allowing
the revision.
7. Per contra, the learned Public Prosecutor supported the
findings of the trial court and the appellate court and submitted
that there are no grounds at all to interfere with the impugned
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judgment.
8. The point for consideration in this revision petition is
whether the impugned judgment of conviction and sentence
needs any interference by this Court.
9. PW1 is the injured and she is the defacto complainant.
Accused is none other than her husband. According to her, on
7.8.2008 at 2.45 pm, she had gone to Shornur to purchase
books for her school-going daughter and when she came back
home, accused caught hold of her by her hair and manhandled
her by asking why she left the home without his permission.
When she tried to escape from his clutches by running to the
courtyard, accused chased her, caught hold of her and beat her
with MO1 iron pipe. She has also testified that accused
indiscriminately beat her with MO1 iron pipe on her lower and
upper limbs and she sustained fracture on her left hand. Her
further version is that after sustaining injuries, she escaped from
the clutches of her husband by running into the neighbouring
house of PW2 Sulochana and with the assistance of said
neighbour, she contacted her mother who in turn took her to the
Government Hospital, Shornur and from there to Medical College
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Hospital, Thrissur. According to PW1, she sustained fracture on
her wrist, contusion on her left leg and contusion all over her
body. PW1 has further testified that accused used to assault her
frequently after consuming alcohol. She has further testified that
her daughter who was present at the time of the incident had
witnessed the incident. Though PW1 was thoroughly cross-
examined by the counsel for the accused, her version regarding
the alleged incident on 7.8.2008 withstood the test of cross-
examination. Ext.P1 is the first information statement given by
her and Ext.P5 is the FIR. Ext.P2 is the wound certificate.
10. PW7 is the daughter of PW1. She too deposed in the
same line as that of PW1. PW7 testified that on the date of
incident when her mother came back home after buying books
for her, her father caught hold of PW1, manhandled PW1
and thereafter beat PW1 with MO1 iron pipe. She has further
testified that her mother sustained fracture on the left hand and
was treated at Medical College Hospital, Thrissur. She too
testified that her father used to assault her mother frequently
after consuming alcohol.
11. PW2 Sulochana is a neighbour of PW1. The version
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of PW1 that after receiving injuries at the hands of the accused,
she escaped from the clutches of the accused and took rescue in
the house of her neighbour Sulochana receives support from the
version of PW2 who in her evidence testified that on the date of
incident, at around 3.30 pm. she heard a sound from the house
of PW1 and shortly thereafter, PW1 came running to her house
and on enquiry PW1 told her about the physical assault
committed by her husband. PW2 has further testified that PW1
had made a request to inform the incident to her parents. The
above version of PW2 corroborates the version of PW1 and PW7.
12. PW4, The Assistant Surgeon, Government Hospital,
Shornur testified that she examined PW1 on 7.8.2008 at 5.15
pm. and issued Ext.P2 wound certificate. In Ext.P2 the doctor
has noted a contusion of the left elbow joint 10x3 cm and
multiple abrasions almost same size on the left leg and thigh
with suspected fractures in both bones of left forearm and left
leg. In Ext.P2 wound certificate the doctor has also noted nail
print abrasion on the left side of neck and tenderness all over the
body. The medical records would further reveal that the injured
was referred to Orthopedic consultation and treated by PW6,
Crl.R.P.No.284 of 2018 7 2024:KER:81065
Lecturer in Orthopedics, Government Medical College Hospital,
Thrissur. It is evident that the X-ray and other special
investigations revealed fractured ulna lower third left and the
injured was treated as an inpatient at Government Medical
College Hospital, Thrissur from 7.8.2008 to 15.8.2008.
13. The versions of PWs 1 and 7 that on 7.8.2008 at
around 3.30 pm. PW1 sustained injuries due to the attack of the
accused receive support from the medical evidence namely
Ext.P2 wound certificate, Ext.P4 discharge certificate and the
evidence of the doctors who were examined as PWs 4 and 6.
Absolutely there are no reasons to disbelieve the versions of PW1
and 7. The evidence on record would show that on 7.8.2008 at
around 3.40 pm when PW1 came back home after purchasing
books for her daughter, accused who is her husband caught hold
of her by her hair, manhandled her and when she ran to the
courtyard, accused chased her and beat her with MO1 iron pipe
and voluntarily caused grievous hurt by causing fracture of ulna.
14. The learned Magistrate found the accused guilty of the
offences punishable under Sections 341, 323, 324 and 326 IPC
and he was convicted and sentenced for the said offences.
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15. The learned counsel for the accused contended that
since the accused was convicted and sentenced for the offence
under Section 326 IPC, there cannot be any further conviction
and sentence for the offences under Sections 323 and 324 IPC.
In support of the said contention, he placed reliance on the
decisions reported in Kuttappan v. State of Kerala (1988(1) KLT
606) wherein it was held that when accused is convicted for a
more serious offence, eg. under Section 307 IPC for having done
certain acts against a particular individual with the requisite
intention or knowledge, he cannot again be convicted and
sentenced for having done some of those acts against that
individual which constitute an offence under Section 324 IPC. In
the decision cited supra it was held that conviction for the
offence under Section 307 IPC includes offence under Section
324 IPC also and Section 71 of IPC prohibits separate
punishment.
16. In the case at hand, there is only one accused and
one victim. In such a case when the accused was already found
guilty of the offence under Section 326 IPC and he was convicted
and sentenced for the offence under Section 326 IPC, the
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conviction and sentence for the offence under Sections 323 and
324 IPC is unwarranted. Hence, I find that the conviction and
sentence against him for the offence under Sections 323 and 324
IPC are liable to be set aside while confirming the conviction
under Sections 341 and 326 IPC.
17. For the offence under Section 326 IPC, the trial court
has sentenced the accused to simple imprisonment for two years
and to pay a fine of ₹10,000/- and in default of payment of fine,
to undergo simple imprisonment for two months. Regard being
had to the facts and attending circumstances and the nature of
the injuries sustained by the injured, I am of the view that
substantive sentence of imprisonment for six months and fine of
₹20,000/- with default custodial sentence of two months for the
offence under Section 326 IPC would meet the ends of justice.
In the result, this Criminal Revision Petition allowed in part
as follows:
i) The conviction and sentence of the accused
for the offences under Sections 323 and 324 IPC set
aside.
ii) The conviction of the accused for the
offence under Sections 341 and 326 IPC stands
confirmed.
Crl.R.P.No.284 of 2018 10 2024:KER:81065
iii)The sentence awarded by the trial court
and confirmed by the Sessions Court for the
offences under Sections 341 and 326 IPC is
confirmed and the sentence awarded for the offence
under Section 326 IPC is modified and the accused
is sentenced to undergo simple imprisonment for six
months and to pay a fine of ₹20,000/- for the
offence under Section 326 IPC. In default of
payment of fine, he has to undergo simple
imprisonment for two months. If the fine amount is
realised, it shall be paid to PW1 as compensation
under Section 357(1) Cr.P.C (Section 395(1) of The
Bharatiya Nagarik Suraksha Sanhita, 2023).
iv) The sentence for the offences under
Sections 341 and 326 IPC shall run concurrently.
v) Accused is entitled to set off as provided
under Section 428 Cr.P.C. (Section 468 of The
Bharatiya Nagarik Suraksha Sanhita, 2023)
The trial court shall take steps to execute the sentence.
Registry shall transmit the records to the trial court
forthwith.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
