MANAYATH SAIDALAVI v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939 Crl.Rev.Pet.No. 1676 of 2003 IN CRA 204/3000 of D.C.& SESSIONS COURT, MANJERI DATED 10-06-2003 IN CC 193/1997 of J.M.F.C.,TIRUR DATED 03-04-2000 ## REVISION PETITIONER(S)/APPELLANT/ACCUSED MANAYATH SAIDALAVI, S/O. KUNHIMOIDEEN, PERUMANNA AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA ## RESPONDENT(S)/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ds ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - ## Crl.R.P.No. 1676 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 05[th] day of January, 2018 ## **O R D E R** The revision petitioner herein is the sole accused in C.C.No. 193 of 1997 of the Judicial First Class Magistrate Court, Tirur. He faced prosecution before the court below under Section 326 of the Indian Penal Code on the allegation that at about 10.00 a.m. on 17.02.1990, he assaulted his neighbour, Muhammed, at the boundary of his property, and inflicted a grievous hurt on his body with a stone. The accused and the injured are next door neighbours, and they are close relatives too. The incident happened in connection with a boundary dispute between them. 2. The accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him under Section 326 IPC. The prosecution examined eight witnesses, and proved Exts. P1 to P4 documents in the trial court. The alleged weapon of offence **Crl.R.P.No. 1676 of 2003** **-2-** was also identified during trial as MO1. 3. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that the complainant in fact sustained injury in a fall. However, the accused did not adduce any evidence in defence. 4. On an appreciation of the evidence, the learned Magistrate found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs. 5,000/-, by judgment dated 03.04.2000. 5. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Manjeri with Crl.A.No. 103 of 2000. In appeal, the learned Sessions Judge confirmed the conviction, but modified and reduced the substantive sentence to simple imprisonment for two months. The fine sentence, with the default sentence thereon was maintained. Now the accused is before this **Crl.R.P.No. 1676 of 2003** **-3-** Court in revision, challenging the legality and propriety of the conviction and sentence. 6. Of the eight witnesses examined in the trial court, PW1 is the defacto complainant who sustained injuries in the alleged incident, and PW2 and PW3 are the incident witnesses. Of them, PW2 is the son of the injured. PW3 turned hostile during trial. Now what remains is the evidence of the complainant and his son. PW4 and PW7 are the doctors examined to prove the grievous hurt alleged by the prosecution. Ext.P2 wound certificate and Ext.P4 discharge certificate will prove the grievous injury sustained by PW1. It is fracture of his right tibia. On this aspect, there is no dispute. The material question is who inflicted this injury, and also whether the conviction under Section 326 IPC can be sustained. 7. PW1 and PW2 have given definite and consistent evidence proving the factual aspects. The incident was witnessed from a very short distance by PW2. **Crl.R.P.No. 1676 of 2003** **-4-** The evidence of PW1 is that his son was standing at the courtyard at the time of the incident. The incident happened when PW1 proceeded to put up a fence with the help of a labourer, at the boundary. The medical evidence well proves the grievous hurt. There is no reason to disbelieve PW1 and PW2, or to reject their evidence. Just because there is no independent evidence, or the only independent witness turned hostile, the court cannot disbelieve the injured and his son. The accused has no satisfactory explanation as to how the victim sustained fracture of his right tibia. Thus I find that on factual aspects, the case stands well proved. 8. One point raised by the defence is that the police officer who investigated the case is not examined as a witness. Non-examination of the investigating officer will not vitiate the prosecution in all circumstances. The question is whether any prejudice was caused to the accused by the non-examination of the investigating officer. **Crl.R.P.No. 1676 of 2003** **-5-** In this case, the factual aspects are well proved by the material witnesses. Seizure of the weapon of offence is also proved by PW6, who is one of the attestors to the scene mahazar. The stone was seized as per the scene mahazar by the police officer. On an examination of the evidence given by PW1 and PW2, I find that the defence has not brought out any material contradiction touching the merits of the factual aspects, to be proved by the investigating officer. In such a situation, non-examination of the investigating officer will not cause any sort of prejudice to the accused. 9. Now the question is whether the conviction in this case can be made under Section 326 IPC or under Section 325 IPC. It is well settled that a stone by itself cannot be said to be a dangerous weapon, or a deadly weapon. It depends upon the nature of the stone, the size of the stone, the force with which it is used, and also the part of the body where it is used. The prosecution has not **Crl.R.P.No. 1676 of 2003** **-6-** brought out anything on these essential aspects as regards the MO1 stone. The learned counsel cited **Joy v. State of Kerala** (2014 (1) KLT 588). In the absence of any evidence proving the essentials as regards the MO1 stone to make it a deadly weapon or a dangerous weapon, I find that the conviction in this case will have to be altered to one under Section 325 IPC. 10. Now the question of sentence. Though the trial court imposed a jail sentence of rigorous imprisonment for one year, the appellate court modified and reduced it to simple imprisonment for two months. The incident in this case happened in February, 1990. Nearly 27 years have elapsed. The parties are close relatives, and also next door neighbours. What actually led to the dispute is some property dispute. On a consideration of all the relevant aspects, I feel that the minimum possible sentence under the law will do justice in this case, and it will be the adequate sentence. On a consideration of the nature of the ## **Crl.R.P.No. 1676 of 2003** **-7-** injury, I feel the absolute necessity of granting some reasonable compensation to the complainant. For such a course, the fine sentence will have to be set aside. An amount of Rs.20,000/- will be the adequate compensation. In the result, the conviction against the revision petitioner in C.C.No. 193 of 1997 of the trial court, confirmed by the Court of Session, Manjeri, in Crl.A.No. 103 of 2000 is confirmed, subject to the alteration that it shall be under Section 325 IPC, and the revision petition is disposed of accordingly. However, the sentence imposed by the court below under Section 326 IPC will stand set aside, and instead, the revision petitioner is sentenced to undergo imprisonment till rising of the court under Section 325 IPC, and he is also directed under Section 357(4) Cr.P.C. to pay a compensation of Rs.20,000/- to PW1 with a default sentence of simple imprisonment for three months. The revision petitioner shall surrender before the trial court within a month from this date to serve out the sentence and to make **-8-** ## **Crl.R.P.No. 1676 of 2003** payment of the compensation amount, on failure of which steps shall be taken by the trial court to enforce the sentence and to realize the amount of compensation, or to enforce the default sentence. Sd/- **P.UBAID** **JUDGE** ds 05.01.2018 //True Copy// P.A. To Judge