Kerala High Court
Priyesh vs State Of Kerala on 30 October, 2024
Crl. R.P 191/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.REV.PET NO. 191 OF 2016
AGAINST THE JUDGMENT DATED 30.11.2015 IN CRA NO.92 OF
2012 OF ADDITIONAL SESSIONS COURT -IV, THRISSUR ARISING OUT
OF THE JUDGMENT IN CC NO.572 OF 2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, KODUNGALLUR
REVISION PETITIONERS/APPELLANTS/ACCUSED:
1 PRIYESH
AGED 30 YEARS, S/O.DEVAN, MANNATHARA (H),
KARA DESOM, EDAVILANGU VILLAGE.
2 VIBEESH
AGED 27 YEARS, S/O.DEVAN, MANNATHARA (H),
KARA DESOM, EDAVILANGU VILLAGE.
BY ADVS.
SRI.K.B.PRADEEP
SRI.MILESH.V.PAVIYALA
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
SMT. MAYA. M.N, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 28.10.2024, THE COURT ON 30.10.2024, DELIVERED THE
FOLLOWING:
Crl. R.P 191/2016
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ORDER
Dated this the 30th day of October, 2024
This Criminal Revision Petition was filed by the appellants in Criminal
Appeal No.92 of 2012 on the file of the Additional Sessions Judge, Thrissur
against the judgment confirming the judgment of Judicial First Class
Magistrate, Kodungallur in CC. No.572 of 2010, convicting and sentencing
them under Section 341, 323, 325 r/w 34 of IPC.
2. The prosecution case is that the accused 1 and 2 had the common
intention to assault PW1 and in furtherance of the common intention, on
5.5.2010 at about 7 p.m., the first accused wrongfully restrained him, beat on
his face and pushed him down. As a result of the same, PW1 lost a teeth. It
is also alleged that when PW1 fell down, the 2 nd accused kicked on his both
thigh.
3. The evidence in the case consists of oral testimonies of PWs 1 to 7
and Exhibits P1 to P7. No evidence was adduced by the accused persons.
After analysing the evidence on record, the trial court found both the accused
persons guilty of the offences punishable under Sections 341, 323 and 325
r/w section 34 IPC and sentenced them to undergo various punishments
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including simple imprisonment for a a period of four months and fine of
Rs.1,000/- under Section 325 IPC. In appeal, the Additional Sessions Judge,
Thrissur confirmed the findings of the learned Magistrate and dismissed the
appeal. Dissatisfied with the above judgment of the learned Sessions Judge,
they preferred this revision raising various contentions.
4. Now, the point that arise for consideration are the following:
1. Whether the conviction of the revision petitioners under
Sections 341, 323 and 325 r/w 34 of IPC as confirmed by the
Sessions Judge is liable to be interfered with, in the light of
the grounds raised in the revision petition?
5. Heard Sri. K.B. Pradeep, learned counsel for the Revision
Petitioner and Smt. Maya M.N, learned Public Prosecutor.
6. The point: The learned counsel for the revision petitioner would
argue that the evidence of PWs 1, 2 and 4 relied upon by the trial court as
well as the Appellate Court are contrary to each other on several material
points and as such, it was argued that, the judgment of conviction sustained
by the learned Sessions Judge is liable to be interfered with. On the other
hand, the learned Public prosecutor would argue that there is no ground to
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interfere with the judgment of the trial court as well as the Appellate Court.
7. One of the grounds raised by the learned counsel for the revision
petitioner is that according to PW1, when the 1 st accused pushed him, he fell
on the road on his back, while according to PW3, PW1 fell down on the
nearby 'cana' (drainage). Further according to him, during the cross
examination, PW1 deposed that PW4 came to the scene of occurrence after
the accused persons went away from there, while according to PW4, he came
there before the accused persons left the place. It was further argued that
there is no corresponding injuries on the body of PW1 if he had actually fell
down on the road or on the drainage as claimed by PWs 1 and 3. Another
argument is that if PW1 fell down on his back, there is no chance for lose of
teeth.
8. On the other hand, the learned Public Prosecutor would argue that
the 1st accused hit on the face of PW1 and as such lose of teeth can only be
because of the hit on the face and not due to fall. Therefore, it was argued by
the learned Public Prosecutor that the offence under Section 325 IPC stands
proved through the evidence of PWs 1 to 3.
9. According to PW1, when the accused persons caught hold on the
neck of his son (PW3), he intervened to save his son. At that time, the 1 st
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accused hit on his face and he fell down on the road. When he spat, there was
blood in his saliva. He was taken to Kodungallur Government Hospital. The
specific case of PW1 is that he fell down on his back.
10. PW2 was the Assistant Surgeon, Taluk Hospital, Thrissur, who had
examined PW1 and issued Exhibit P2 certificate. According to him, the
injuries noted are lose of incisor teeth and internal injury inside the upper lip.
There was no other injuries on his body.
11. When the son of PW1 was examined as PW3, he deposed that
the accused persons wrongfully restrained him, abused him and pushed him
down. When his father came near him, the 1 st accused hit on his face and he
fell down in the drainage, on his back. At that time, the 2 nd accused kicked on
the leg of PW1. According to PW3, in the incident, half portion of a teeth of
PW1 was broken and lost and the remaining portion was removed by the
Doctor when he was taken to the hospital.
12. PW4, one of the witnesses examined by the prosecution would
swear that when he reached the place of occurrence, PW1 was lying in the
drainage, with bleeding from his mouth.
13. As argued by the learned counsel for the revision petitioner, PW1
has no case that he fell down in the drainage. However, his case is that he fell
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down on the road. It is true that according to PWs 1 and 3, PW1 fell down on
his back and therefore, there is no chance for breaking or lose of teeth on
account of fall. However, from the evidence of PW1 and 3, it is revealed that
1st accused hit on the face of PW1. PW2, the doctor, who had examined PW1
also deposed that PW1 lost an incisor teeth and sustained injury inside his
upper lip. The above evidence of PW2 substantiates the evidence of PWs 1
and 3 that because of the hit on the face by the 1 st accused, PW1 lost an
incisor teeth and as such the above act of the 1 st accused amounts to grievous
hurt as defined under Section 320 IPC, punishable under section 325 IPC. In
this case, there are no other injuries on the body of PW1 and as such the
charge under Section 323 IPC stands not proved. In other words, the
conviction under Section 323 IPC is liable to be set aside.
14. From the evidence of PWs1 and 3, it is further revealed that the
accused persons wrongfully restrained PW3 and as such the above act of the
accused persons amounts to wrongful restraint, punishable under Section 341
IPC. From the conduct of accused 1 and 2 in waiting for the arrival of PW3
and wrongfully restraining him and then assaulting PW1, when he tried to
save his son, it can be presumed and concluded that they have done those acts
in furtherance of their common intention and as such they are liable to be
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punished for the offences proved, by invoking section 34 IPC.
15. The learned counsel for the revision petitioner prayed for taking a
lenient view in favour of the revision petitioner considering the fact that the
overt acts from their side are not serious in nature. He also submitted that he
has no objection in awarding some compensation to PW1, after reducing the
term of imprisonment to the minimum possible.
16. Considering the fact that the overt acts alleged against the revision
petitioners are not so serious and also considering the efflux of time, I hold
that, for doing justice to both sides, the substantive sentence of imprisonment
for the offences under section 341 and 325 r/w section 34 IPC can be reduced
to imprisonment till the rising of the court each, with a further direction to
pay a total compensation of Rs.5,000/- to PW1.
17. In the result, this Criminal Revision Petition is allowed in part as
follows:
Conviction under Section 341 and 325 IPC are sustained. Sentence under
Section 341 r/w 34 IPC is reduced to imprisonment till rising of the court
each. The punishment under Section 325 r/w 34 IPC is reduced to
imprisonment till rising of the court and to pay a compensation of Rs.2500/-
each (Total Rs.5000/-) to PW1. In case the compensation awarded to PW1 is
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not paid, they shall undergo imprisonment for a further period of one month
each. The sentence shall run concurrently.
18. The conviction under Section 323 IPC is set aside. The revision
Petitioners are acquitted of the offence under Section 323 IPC, under Section
386 (b)(i) Cr.P.C.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
