Ajithamma @ Ajithamol d/o Gowri v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** ## **CRL.A.No.342 OF 2003** **AGAINST THE ORDER/JUDGMENT IN CC 811/1997 DATED 18-11-2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** ## **APPELLANT/S:** **AJITHAMMA @ AJITHAMOL D/O. GOWRI, ALAKKADAVIL VEEDU, AROOR MURI, AROOR VILLAGE, CHERTHALA.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/S:** |**1**|**SARAVANAN**| |---|---| ||**S/O. SANKARAN,**| ||**ALAKKADAVIL VEEDU,**| ||**AROOR MURI,**| ||**AROOR VILLAGE,**| ||**CHERTHALA.**| |**2**|**RENJITH**| ||**S/O. SARAVANAN**| ||**-DO- -DO-.**| |**3**|**SANDHYA**| ||**D/O. SARAVANAN**| ||**-DO- -DO-.**| |**4**|**LATHEESH**| ||**S/O. SARAVANAN**| ||**-DO- -DO-.**| |**5**|**SELVARAJAN**| ||**S/O. SARAVANAN**| ||**-DO- -DO-.**| |**6**|**LEELA**| ||**W/O. SARAVANAN**| ||**-DO- -DO-.**| Crl.A.No.342/2003 & Conn.Cases. 2 **7 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.P.M.JOSHI PUBLIC PROSECUTOR R2 BY ADV. SRI.K.N.BALACHANDRAN KARTHA** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-102020, ALONG WITH CRL.REV.PET.221/2005(C), CRL.REV.PET.420/2005(B), CRL.REV.PET.1625/2016, THE COURT ON 1011-2020 DELIVERED THE FOLLOWING:** Crl.A.No.342/2003 & Conn.Cases. 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** **Crl.Rev.Pet.No.221 OF 2005** **AGAINST THE ORDER/JUDGMENT IN CRA 357/2002 DATED 14-12-2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CC 803/1997 DATED 18-11-2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** ## **REVISION PETITIONER/S:** |**1**|**LEKSHMANAN**| |---|---| ||**S/O KUTTAN**| ||**PANAKKATHARAKADAVIL,**| ||**THOOMPUNKAL HOUSE,**| ||**WARD NO.8,**| ||**AROOR PANCHAYAT.**| |**2**|**DHARMAJAN**| ||**S/O. KUTTAN**| ||**PANAKKATHARAKADAVIL,**| ||**THOOMPUNKAL HOUSE,**| ||**WARD NO.8,**| ||**AROOR PANCHAYAT.**| |**3**|**SHINE**| ||**S/O. DHARMAJAN**| ||**PANAKKATHARAKADAVIL,**| ||**THOOMPUNKAL HOUSE,**| ||**WARD NO.8,**| ||**AROOR PANCHAYAT.**| |**4**|**SHIBU**| ||**S/O. DHARMAJAN**| ||**PANAKKATHARAKADAVIL,**| ||**THOOMPUNKAL HOUSE,**| ||**WARD NO.8,**| ||**AROOR PANCHAYAT.**| |**5**|**ABHAYARAJ**| ||**S/O. RAGHAVAN**| Crl.A.No.342/2003 & Conn.Cases. 4 **PANAKKATHARAKADAVIL, THOOMPUNKAL HOUSE, WARD NO.8, AROOR PANCHAYAT.** **BY ADV. SRI.P.N.SUKUMARAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, AROOR POLICE STATION, REPRESENTED BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-10-2020, ALONG WITH CRL.A.342/2003, CRL.REV.PET.420/2005(B), CRL.REV.PET.1625/2016, THE COURT ON 1011-2020 PASSED THE FOLLOWING:** Crl.A.No.342/2003 & Conn.Cases. 5 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** **Crl.Rev.Pet.No.420 OF 2005** **AGAINST THE ORDER/JUDGMENT IN CRA 362/2002 DATED 14-12-2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CC 803/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** ## **REVISION PETITIONER/S:** **AJITHAMMA ALAKKADAVU, WARD NO.VIII, AROOR PANCHAYATH, AROOR VILLAGE.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/S:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-10-2020, ALONG WITH CRL.A.342/2003, CRL.REV.PET.221/2005(C), CRL.REV.PET.1625/2016, THE COURT ON 1011-2020 PASSED THE FOLLOWING:** Crl.A.No.342/2003 & Conn.Cases. 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** **Crl.Rev.Pet.No.1625 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CRA 357/2002 DATED 14-12-2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CC 803/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** ## **REVISION PETITIONER/S:** **RENJITH SARAVANAN AGED 29 YEARS S/O SARAVANAN, AROOR MURI, AROOR VILLAGE, CHERTHALA TALUK BY ADVS. SRI.P.M.JOSHI SRI.K.N.BALACHANDRAN KARTHA** ## **RESPONDENT/S:** |**1**|**LAKSHMANAN,**| |---|---| ||**S/O KUTTAN**| ||**PANAKKATHARAKADAVIL (FROM THOOMPUNKAL),**| ||**WARD NO 8,**| ||**AROOR PANCHAYAT**| |**2**|**DHARMAJAN,**| ||**S/O KUTTAN**| ||**PANAKKATHARAKADAVIL (FROM THOOMPUNKAL),**| ||**WARD NO 8,**| ||**AROOR PANCHAYAT**| |**3**|**SHINE**| ||**S/O DHARMAJAN**| ||**PANAKKATHARAKADAVIL (FROM THOOMPUNKAL),**| ||**WARD NO 8,**| ||**AROOR PANCHAYAT**| Crl.A.No.342/2003 & Conn.Cases. 7 **4 SHIBU, S/O DHARMAJAN PANAKKATHARAKADAVIL (FROM THOOMPUNKAL), WARD NO 8, AROOR PANCHAYAT 5 ABHAYARAJ S/O RAGHAVAN THOOMPUNKAL, WARD NO 8, AROOR R1 BY ADV. SRI.AKHIL S.VISHNU R1 BY ADV. SRI.P.N.SUKUMARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-10-2020, ALONG WITH CRL.A.342/2003, CRL.REV.PET.221/2005(C), CRL.REV.PET.420/2005(B), THE COURT ON 10-11-2020 PASSED THE FOLLOWING:** Crl.A.No.342/2003 & Conn.Cases. 8 **P.V.KUNHIKRISHNAN, J ======================== Crl.A.No.342 of 2003, Crl.R.P.Nos.221 of 2005, 420 of 2005 and 1625 of 2016** **======================== Dated this the 10[th] day of November, 2020** ## **COMMON JUDGMENT** These three revisions and the appeal are connected and therefore, I am disposing these four cases together by a common judgment. Accused and the injured in these cases are very close relatives. Alleged incident in these cases happened about 23 years back. But eventhen the enmity between the parties are continuing with great vigour! 2. Crl.R.P. No.221/2005 is filed by accused Nos.1 to 4 and 6 and the Crl.R.P.No.420/2005 is filed by the 7[th] accused in C.C. No. 803/1997 on the file of Judicial First Class Magistrate Court-II, Cherthala. Crl.R.P.1625/2016 is filed by the prosecution witness No.1 in the above case for Crl.A.No.342/2003 & Conn.Cases. 9 enhancement of sentence. Crl.A.No.342/2003 is an appeal filed against the acquittal in the counter case to C.C.No.803/1997. Therefore, I am deciding this four cases together. 3. C.C. No. 803/1997 is a case charge sheeted by the Sub Inspector of Police, Aroor Police Station against 7 accused alleging offences punishable under Sections 143, 147, 148, 447, 323, 324, 326 r/w section 149 of the IPC. 4. The prosecution case is that on 06.07.1997 at about 9.30 a.m., accused in this case formed themselves into an unlawful assembly armed with deadly weapons like iron road, oar etc., with the common object to attack CW 1 to CW 8 and in furtherance of their common object, trespassed into the courtyard of the house of CW2, situated in the 8[th] ward of Aroor Panchayat Alakkadavil house, and committed rioting. The prosecution alleged that, the 1[st] accused beaten on the left hand muscle of CW1 with an iron rod, 2[nd] accused beaten CW7 on his head with an iron rod, 3[rd] accused beaten CW1 on his right cheek with an iron rod Crl.A.No.342/2003 & Conn.Cases. 10 causing fracture of a teeth, 4[th] accused has beaten CW8 on her left wrist causing fracture of ulna bone, 5[th] accused had fisted CW1 on his back with hands, 6[th] accused had beaten CW4 on his head with an iron rod, 7[th] accused had beaten CW4 and CW5 on their back with wooden reaper. It is also alleged that the 1[st] accused fisted CW2 with hands. Hence it is alleged that CWs 1 to 8 sustained injuries. Hence it is alleged that the accused committed offences. 5. To substantiate the case prosecution examined 10 witnesses. Exts.P1 to P14 are the Exhibits. One witness was examined on the side of defence as DW1. D1 and D1(a) are the Exhibits on the side of the defence. 6. Ongoing through the evidence and documents the trial court found that accused Nos.1 to 4 and 6 are guilty under Section 447, 323, 324, 326 r/w 34 of IPC. They are found not guilty under Sections 143, 147, 148 r/w 149 of IPC. The 7[th] accused was found guilty under Sections 324 IPC, but 7[th] accused was found not guilty for the offences under Sections 143, 147, 148, 323, 447, 326 r/w 149 of Crl.A.No.342/2003 & Conn.Cases. 11 IPC. As far as 5[th] accused is concerned the trial court acquitted him from all charges. Separate sentence was also imposed on the accused Nos. 1 to 4, 6 and 7. 7. Aggrieved by the conviction and sentence, accused Nos.1 to 4 & 6 filed Crl.A.No.357/220 before the Sessions Court, Alappuzha. The 7[th] accused filed a separate appeal as Crl.A.No.362/2002. Both the appeals were considered by the Additional Sessions Judge (Fast Track-II) Alappuzha. The learned Additional Judge confirmed the conviction and sentence and dismissed the appeals. Aggrieved by the above conviction and sentence Crl.R.P.No.221/2005 and Crl.R.P.No.420/2005 are filed by the accused. Crl.R.P.No.221/2005 is filed by accused Nos. 1 to 4 and 6. Crl.R.P.No.420/2005 was filed by the 7[th] accused. Crl.R.P.No.1625/2016 was filed by the prosecution witness No.1 challenging the inadequacy of the sentence imposed on the accused. When these cases came up for consideration the learned counsel who is appearing in Crl.R.P.No.221/2005 submitted that 2[nd] revision petitioner in his revision is no more. Anyway it is a revision against Crl.A.No.342/2003 & Conn.Cases. 12 conviction and sentence and hence there is no abatement. Therefore, this Court has to considered the case on merits itself. 8. Heard the learned counsel for the appellant, the learned counsel appearing for the revision petitioners and the learned Public Prosecutor. 9. The learned counsel for the revision petitioners in Crl.R.P.No.420/2005 and Crl.R.P.No.221/2005 raised common contentions. The learned counsel submitted that the prosecution miserably failed to prove the case against the accused in these cases. The learned counsel submitted that the medical evidence in this case is contradictory to the ocular evidence available. The counsel also submitted that there are serious contradictions in the evidence of the witnesses, and that itself will show that they are not trustworthy witnesses. The counsel also submitted that, when the prosecution case is considered along with the defence case, the defence case is more probable. 10. The counsel for the 7[th] accused specifically contended that the only overtact attributed against the 7[th] Crl.A.No.342/2003 & Conn.Cases. 13 accused is that, she assaulted PW5 using a wooden reaper. The learned counsel submitted that there is no corresponding injury to PW5 to show that 7[th] accused attacked PW5 on his back. The counsel submitted that even in the version to the Doctor, PW5 has no case that 7[th] accused attacked her. In addition to the general contention raised by the revision petitioners in Crl.R.P.No.221/2005, the counsel specifically contended that as far as the 4[th] revision petitioner is concerned he is an employee in KSRTC. According to the counsel the specific allegation against the 4[th] accused who is the 4[th] petitioner in Crl.R.P.No.221/2005 is that he attacked CW8 Bhama. Bhama is not examined. In such situation it is clear that injury on Bhama is not proved by the prosecution. Simply because there is some hearsay evidence that Bhama sustained injury, the 4[th] petitioner cannot be convicted, the counsel contended. 11. The learned counsel who appeared for the prosecution witness No.1 in Crl.R.P.No.1625/2016 argued the case in detail. He narrated the entire prosecution case in detail, after taking me through the oral and documentary Crl.A.No.342/2003 & Conn.Cases. 14 evidence adduced by the prosecution. The counsel submitted that this is a case in which the accused trespassed into the courtyard of PW2 with dangerous weapons and inflicted grievous hurt to several persons. The injuries sustained to PW1 and Bhama (CW8) are grievous in nature. The counsel submitted that there is oral evidence of injured witnesses which is supported by the evidence of an independent witness. The counsel submitted that, even if there is any minor contradiction in the ocular and medical evidence, the ocular evidence is to be accepted by this Court. The counsel also submitted that the accused used 4 iron rods, 1 oar and a wooden reaper. The counsel submitted that these are dangerous weapons. The counsel also relied on illustration **s** of Section 6 of the Evidence Act to support his contentions. The counsel also submitted that there is absolutely no provocation on the side of the prosecution witnesses. The accused trespassed into the courtyard and attacked the injured witnesses in this case mercilessly. In such situation this Court may not show any leniency to the petitioners. The counsel relied on the judgment of the Apex Crl.A.No.342/2003 & Conn.Cases. 15 Court in _**State of UP v. Kishan (2005 Criminal Law Journal 333) and State of Madhya Pradesh v. Ghanshyam Singh (2003 Criminal Law Journal 4339).**_ The counsel submitted that simply because CW8 Bh _a_ ma is not examined, that will not show that the injury on Bhama is not true. The counsel also submitted that there is adequate evidence in this case to show that the accused committed the offence under Section 326 IPC. The counsel submitted that the maximum punishment that can be imposed under Section 326 IPC is life imprisonment. In this case the lower court imposed a flee bite sentence. The counsel submitted that, this Court may kindly impose adequate substantive sentence along with compensation so that the grievance of PW1 and others can be redressed. The counsel submitted that this Court may kindly allow the revision filed by PW1, which is filed challenging the sentence imposed by the lower court. 12. The learned Public Prosecutor also supported the contentions of the revision petitioner in Crl.R.P.No.1625/2016. The learned Public Prosecutor Crl.A.No.342/2003 & Conn.Cases. 16 submitted that there is adequate oral and documentary evidence to prove the offences, and the trial court and the appellate court perfectly justified in convicting and sentencing the revision petitioners in Crl.R.P.No.221/2005 and Crl.R.P.No.420/2005. 13. The point for consideration in this case are the following:- (i) Whether the conviction and sentence imposed on the revision petitioners in Crl.R.P.No.221/2005 and Crl.R.P.No.420/2005 are sustainable. (ii) Whether the sentence imposed by the lower court is sustainable and whether any interference is possible based on Crl. R.P. No. 1625/2016 which is filed by the victim. (iii) Whether the judgment of acquittal passed by the lower court in C.C.No.811/1997 by the Judicial First Class Magistrate Court-II, Cherthala, which is a counter case to C.C.No.803/1997 of the same case is sustainable. 14. Point No- (I) & (ii):- These two points can be Crl.A.No.342/2003 & Conn.Cases. 17 considered together. This is an incident happened about 23 years back. The 7[th] accused is the sister of PW2. Admittedly, there were some civil dispute between the parties. It is an admitted fact that all the accused are some how or other related and neighbours to PW2. To substantiate the case prosecution examined 10 witnesses. Among these 10 witnesses PW1 is the defacto complainant and injured. PW2 is the father of PW1. He is also an injured witness. PW3 and PW4 are brothers of PW1. PW5 is the sister of PW1. PW6 and PW7 are cited as independent witness, but PW6 turned hostile to the prosecution. PW8 is the Doctor through whom Exts. P2 to P9 wound certificates are marked. PW9 is the Head Constable who recorded the FIS. PW10 registered the FIR and conducted the investigation. 15. According to the prosecution on 06.09.1997 at 9.30 a.m., PW2 and 7[th] accused were engaged in a wordy quarrel regarding the apportionment of a property. At that time, accused Nos.1 to 6 criminally trespassed into the courtyard of his house, and A1 has beaten him with an iron rod on his hand muscle. When he cried aloud his brother Crl.A.No.342/2003 & Conn.Cases. 18 PW3 came out from house and prevented the accused, at that time A1 has beaten PW3 on his head with iron rod. A3 has beaten him on his cheek with an iron rod causing fracture on his left incisor. According to the prosecution, A5 has fisted on his face and on the buttock. When Alakesan, who was not examined before the lower court tried to prevent the accused, the 2[nd] accused has beaten him on his head with an iron road. Seeing this another injured witness CW8 Bhama tried to prevent the accused, at that time A4 has beaten on her. The 6[th] accused has beaten PW4 with an oar on the right side of his head. He also beaten on the left hand of PW4. A1 has fisted PW2 father of PW1 on his back and kicked on the buttock. On seeing this attack when PW5 his sister and mother Leela tried to prevent the accused, A4 and A1 have beaten and fisted PW5 and Leela. The allegation against the 7[th] accused is that he has beaten PW5 and Leela with wooden reaper. On hearing the hue and cry of the injured, the neighbours gathered there and at that time the accused left the place. This is the crux of the prosecution case. Crl.A.No.342/2003 & Conn.Cases. 19 16. There is oral evidence of PW1 to PW5 who are the injured also in this case to support the prosecution case. PW7 is an independent witness. He also supported the prosecution case. In such circumstances the incident is proved by the prosecution through the evidence of PW1 to PW5 and PW7. Crl.R.P.No.221/2005 and Crl.R.P.No.420/2005 are the revisions filed against the conviction and sentence. These revisions are filed challenging the concurrent finding of conviction and sentence imposed on the revision petitioners. The jurisdiction of this Court to interfere with the concurrent finding of conviction and sentence imposed on the revision petitioners in a revision is limited. As I said earlier there is evidence of PW1 to PW5 and PW7 is there to prove the occurrence. I see no reason to disbelieve these witnesses regarding the occurrence as stated by the prosecution on 06.07.1997 at 9.30 a.m. PW1 to PW5 are injured witnesses. Their evidence is supported by the independent witness PW7 and the medical evidence adduced by PW8. Therefore, it is proved by the prosecution that an incident happened on Crl.A.No.342/2003 & Conn.Cases. 20 06.07.1997 in which PW1 to PW5 sustained injuries. The next question is who committed the offence. 17. I will take Crl.R.P.No.420/2005 first. The revision petitioner in this case is the 7[th] accused. The specific overtact attributed against the 7[th] accused, who is the revision petitioner in Crl.R.P.No.420/2005 is that she attacked PW5 using a wooden reaper. She was convicted and sentenced under Section 324 IPC. Admittedly, the wooden reaper is not seized. According to the prosecution witnesses A7 attacked PW5 using the wooden reaper on her back side. Ext.P7 is the wound certificate of PW5. As per Ext.P7 the version to the Doctor by the injured is extracted hereunder:- "രരാഘവന, മണണിക്കുട്ടന, മണണി, അഭയരരാജജ, ലക്ഷണന, ധര്‍മ്മജന, ഷഷൈന, ഷൈണിബു എനണിവര്‍ ചചേര്‍നജ ഇരുമ്പുവടണികകരാണജ അടണിക് **ക** ുയയും ഷകകകരാണജ മര്‍ദണിക് **ക** ുയയും കചേയ. _”_ 18. Admittedly the name of the 7[th] accused, who is the revision petitioner in Cr. R.P. 420/2005 is not mentioned by the injured to the doctor. Moreover, the overt act attributed to the 7[th] accused is that, she assaulted PW5 using a wooden reaper on the back side of PW5. The injuries noted Crl.A.No.342/2003 & Conn.Cases. 21 by the doctor in Ext. P7 are two contusions and a pain on chest. The 1[st] contusion was on left side of face and the 2[nd] contusion was on right side of fore head. These are the three injuries noted in Ext. P7 wound certificate. Absolutely no injury or even a pain is there on the back side of PW5 as per the wound certificate. Therefore, this is a case in which there is allegation that the 7[th] accused assaulted PW5 on her back side using a wooden reaper. But, absolutely no medical evidence to prove the same. Moreover PW5 who is the injured in this case has no case to the doctor that, the 7[th] accused attacked her even in her 1[st] version to the doctor. In such circumstances, I am not in a position to accept the case of the prosecution that, the 7[th] accused committed the offence under Section 324 IPC. Therefore, I think the 7[th] accused, who is the revision petitioner in Crl. R.P. No. 420 of 2005 is entitled the benefit of doubt. 19. What remains is Crl. R.P. No. 221/2005. In this case the revision petitioners are accused Nos. 1 to 4 and 6. As far as the 4[th] accused, who is the 4[th] revision petitioner is concerned the specific overt act attributed is that he Crl.A.No.342/2003 & Conn.Cases. 22 attacked CW8 Bhama. The trial court found that, the 4[th] accused is not guilty under Sections 143, 147, 148, read with Section 149 of IPC. Admittedly, CW8 Bhama is not examined in this case. As far as, the injury sustained to CW8 Bhama is concerned there is only hearsay evidence from the other witnesses. When the injured is available and not examined before the Court and he is deliberately kept back by the prosecution, whether the prosecution can succeed is the question to be decided. According to the prosecution, the 4[th] accused, who is the 4[th] revision petitioner in Crl. R.P. No. 221/2005 attacked CW8 Bhama using an iron rod. As I stated earlier, Bhama is not examined. It is true that, the wound certificate of Bhama is marked as Ext. P9. A perusal of Ext.P9 will show that, there is a fracture of the ulna bone of her left hand. The learned counsel for the revision petitioner seriously argued that, if iron rod is used to attack CW8 Bhama and if she sustained a fracture like this, there will be a corresponding injury to the fracture. There is absolutely no corresponding external injury. In such situation, the learned counsel for the 4[th] Crl.A.No.342/2003 & Conn.Cases. 23 revision petitioner submitted that, the non examination of Bhama is vital because he is not able to cross examine her about the infliction of the particular injury, especially when there is no corresponding external injury. The learned counsel submitted that, it will prejudice the interest of the 4[th] revision petitioner. I see some force to the argument of the learned counsel for the 4[th] revision petitioner. According to the prosecution, CW8 Bhama sustained a grievous hurt on her left hand. Bhama is not examined. Ext.P9 is the wound certificate. It is true that, there is a fracture sustained on the left hand of Bhama. But it is a fact that, there is no external injury. Whether such a fracture is possible without an external corresponding injury is to be proved by the prosecution. The Court cannot presume the same. In that situation, according to me, the examination of CW8 Bhama is important. The non examination of Bhama is vital, as far as the 4[th] revision petitioner is concerned because he was not able to cross examine that particular witnesses regarding the injury sustained to her, especially when the wound certificate says that, there is no external Crl.A.No.342/2003 & Conn.Cases. 24 corresponding injury in this case. More over, the weapon of the alleged offence is not seized in this case. I perused the evidence of PW10 the Investigation officer also. He simply says that, when he searched the house of A1, he was not able to recover the weapon. No serious efforts were taken by PW10 the Investigation officer to seize the weapon of the alleged offence. While convicting an accused under Section 326 IPC, the weapon used for committing the alleged offence is important because the prosecution has to establish that, it is a dangerous weapon. At least the prosecution has to explain the nature of the weapon like the length and breadth of weapon. If the weapon is not recovered, in this case, absolutely no such evidence from the side of prosecution. Therefore, according to me, the offence under Sections 323, 324, and 326 IPC is not proved against the 4[th] accused, who is the 4[th] revision petitioner in Crl. R.P No. 221/2005. As far as accused Nos. 1, 2, 3 and 6, who are the revision petitioners in Crl.R.P. No. 221/2005, there is ample evidence to prove the offence under Sections 447, 323 and 324 IPC. There is clinching evidence from the Crl.A.No.342/2003 & Conn.Cases. 25 injured witnesses in this case, who are examined as PW1 to PW5 to prove the same. The oral evidence of these injured witnesses are corroborated by the independent witness, who is examined by PW7. Therefore, the evidence of PW1 to 5 along with the evidence of PW7, it is clearly proved that, the accused Nos. 1, 2, 3, and 6 committed the offences under Sections 447, 323 and 324 IPC. 20. The question is whether the offence under Section 326 IPC is made out against these accused. It is true that, PW1 sustained a grievous hurt. Ext.P2 is the wound certificate of PW1. The main injury noted is that, the left incisor has broken and lost. The first version to the doctor by the injured witnesses is extracted hereunder; "രരാഘവന, മണണിക്കുട്ടന, മണണി, അഭയരരാജജ, ലക്ഷണന, ധര്‍മ്മജന, ഷഷൈന, ഷൈണിബു എനണിവര്‍ ചചേര്‍നജ ശരാരീണികമരായണി മര്‍ദണിക് **ര ക** ുയയും ഇരുമ്പുവടണികകരാണജ അടണിക് **ക** ുയയും കചേയ. _”_ 21. PW1 while examined before the Court deposed that the 1[st] accused attacked him using an iron rod on the left hand muscle. Further the case of PW1 is that, the 1[st] accused attacked Latheesh on his head. Further the witness deposed that, the son of 2[nd] accused, who is the 3[rd] accused Crl.A.No.342/2003 & Conn.Cases. 26 herein attacked him using an iron rod on his cheek and he sustained fatal injury. He also stated that, he sustained injury on his cheek also. The alleged incident happened on 06/07/1997 at 9.30 a.m. He reached the hospital on the same at 10.35 a.m. But in the wound certificate absolutely no injury is seen on the cheek of PW1. It is true that, there is a contusion on the upper lip. But the specific case of PW1 is that, the 3[rd] accused assaulted him using an iron rod on his cheek and he sustained injury on his cheek and grievous hurt on his tooth. But when the doctor examined PW1 within one hour after the incident, no corresponding injury is seen on the cheek. In such situation, I am not in a position to accept the case of the prosecution that, PW1 sustained grievous hurt because of attack of the 3[rd] accused using an iron rod. It is true that, the learned counsel for PW1 vehemently argued that, when there is clear evidence from the injured witnesses in this case that PW1 sustained grievous hurt, the medical evidence is to be ignored. It is true that when there is ocular evidence to prove the incident, the medical evidence need not be look into by the Court Crl.A.No.342/2003 & Conn.Cases. 27 always. But, to find out the truthfulness of the witnesses the medical evidence is important according to me. The injured witness says that, he was attacked by one of the accused using an iron rod and he attacked on his cheek. There is absolutely no injury on his cheek. How PW1 sustained the grievous hurt need not be proved by the accused. If the 3[rd] accused attacked PW1 using a dangerous weapon like iron rod on his cheek, definitely there will be a corresponding injury on the cheek of PW1. As I stated earlier, a perusal of Ext.P2 wound certificate will not show that, there is any injury on the cheek of PW1. In the evidence, PW1 specifically stated that, he sustained injury on his cheek. In such situation, I am not in a position to accept the case of the prosecution that, the accused committed the offence under Section 326 read with Section 34 IPC. But there is ample evidence to show that Accused Nos.1 to 3 and 6 committed the offence under sections 447, 323 and 324 IPC. As far as the 4[th] accused is concerned, there is evidence to show that he committed the offence under section 324 IPC. But he is not guilty for the other offences alleged against him. Crl.A.No.342/2003 & Conn.Cases. 28 22. Crl. R. P. No. 1625/2016 is filed by challenging the sentence imposed by the lower court. As far as the offence under Section 326 IPC is concerned, I already set aside that conviction and sentence imposed on the accused. What remains now is the conviction and senctence under Section 324 IPC. Moreover this revision petition is filed against the judgment dated 14/12/2004 in Crl. A. No. 357/2002 on the file of additional Session Judge Fast track Court-II, Alappuzha. This is an appeal filed by the accused challenging the conviction and sentence imposed by the trial court. The appellate court confirmed the conviction and sentence. According to me, the revision petitioner ought to have challenged the sentence imposed by the learned magistrate by filing a separate revision. No such revision is filed. Even then, I perused the sentence imposed by the lower court. I see no reason to interfere with the sentence imposed by the lower court. 23. Now I already found that accused Nos. 1 to 3 and 6 committed the offences under Sections 447, 323 and 324 IPC. As far as the accused No. 4 is concerned he is guilty for Crl.A.No.342/2003 & Conn.Cases. 29 the offence under Section 447 of IPC alone. The other offences are not proved against him. 24. What is the sentence to be imposed is the next question. It is reported that the second accused is no more. It is a fact that the accused in this case trespassed into the courtyard of PW1. They attacked PW1 to 5 using dangerous weapons. It is true that, they sustained injury. In such situations this Court cannot ignore the facts that, there are 5 injured persons in this case. But it is also to be noted that, the accused and the injured in this case are very close relatives. PW2 is the direct sister of the 7[th] accused. All the accused are relatives of the injured witnesses in this case. The incident in this case happened about 23 years back. In such situation, I think, it will be injustice, if I send these accused to jail at this distance of time. But the injured in this case should be compensated properly. Therefore, by imposing heavy compensation, I think these revisions against conviction can be disposed. 25. Point No(iii):- As far as Crl. A. 342/2003 is concerned, according to me, there is nothing to interfere Crl.A.No.342/2003 & Conn.Cases. 30 with the acquittal order passed by the trial court. This is an appeal against the acquittal. The trial court after considering the entire oral and documentary evidence came to a definite conclusion that, the accused is not quilty. In such circumstances, I see no reason to interfere with the acquittal order passed by the trial court in C.C. No. 811/1997. The presumption of innocence is strengthened, if an accused is acquitted by the lower court. That is a settled position. As I stated earlier, I see no reason to interfere with the acquittal order passed by the learned Magistrate in C.C. No. 811/1997. Therefore, these cases are disposed with the following directions. _1. Crl. R.P. No. 420/2005 is allowed. The conviction and sentence imposed on the 7[th] accused, who is the revision petitioner is set aside._ _2. Crl. R. P. No. 221/2005 is allowed in part. The conviction and sentence imposed on revision petitioners 1, 2,3 and 6 under Sections_ Crl.A.No.342/2003 & Conn.Cases. 31 _447, 323 and 324 IPC is confirmed. The conviction and sentence imposed on them under Section 326_ _IPC is set aside. The conviction and sentence imposed on the 4[th] revision petitioner, who is the 4[th] accused under Sections 323, 324 and 326 are set aside. But he is convicted under Section 447 of IPC._ _3. The accused Nos. 1, 3, 4 and 6, who are the revision petitioners 1, 3, 4 and 6 in Crl. R.P. 221/2005 are sentenced to pay a fine of Rs. 500/under Section 447 IPC. In default of payment of fine the accused are directed to undergo simple imprisonment for seven days._ _4. Accused Nos. 1, 3 and 6 who are the revision petitioners 1, 3 and 6 in Crl. R.P. 221/2005 are sentenced to pay a fine of Rs. 1000/- under Section 323 IPC. In default of payment of fine the accused are directed to undergo simple imprisonment for ten days._ _5. The Accused Nos. 1, 3 and 6, who are_ Crl.A.No.342/2003 & Conn.Cases. 32 _the revision petitioners 1, 3 and 6 in Crl. R.P. 221/2005 are sentenced to undergo simple imprisonment, till rising of Court and to pay a compensation of Rs. 30,000/- to the injured in this case under Section 324 IPC. In default of payment of compensation they will undergo simple imprisonment for 6 months. If compensation amount is realized the entire compensation amount should be disbursed to PW1 to PW5 equally._ _6. The conviction on revision petitioner No. 2 in Crl.R.P. No. 221/2005 under Sections 447, 323, and 324 IPC is confirmed. Since the 2[nd] revision petitioner is no more no sentence is imposed._ _7. Crl. A. 342/2005 and Crl.R.P. No. 1625/2005 are dismissed._ **(Sd/-) P.V.KUNHIKRISHNAN JUDGE** VPK/LU