High Court of KeralaSingle Judge2014-12-15Partly allowed; conviction confirmed; sentence ...

OUSEPH JERRY, VINEETHA LAND VEEDU, VETTUTHURA, VETTUTHURA DESOM, KADINAMKULAM VILLAGE v. STATE OF KERALA

Case / Petition Number:Crl.Rev.Pet.No.1953 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2014-12-15
Court Decision / Holding: In the result, the revision petition is partly allowed. Conviction of the revision petitioner under Section 326 I.P.C is confirmed. The sentence is reduced and he shall undergo rigorous imprisonment for a period of one year and pay a fine of Rs.25,000/-. If the fine amount is recovered, it shall be paid as compensation to PW1 under Section 357(1) Cr.P.C. If the fine is not paid, the revision petitioner shall undergo simple imprisonment for a further period of six months. All pending interlocutory applications will stand dismissed.
Final Disposition: Partly allowed; conviction confirmed; sentence reduced; interlocutory applications dismissed.

Parties to the Case

Appellants / Petitioners

OUSEPH JERRY
VINEETHA LAND VEEDU
VETTUTHURA
VETTUTHURA DESOM
KADINAMKULAM VILLAGE

Respondents

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.V.N.ACHUTHA KURUP (SR.)

Counsels for Respondents

• SMT.MADHU BEN

Case Synopsis & Summary

This is a criminal revision petition by Ouseph Jerry and co-accused challenging a conviction under Section 326 IPC for grievous hurt inflicted with a sword on 1 October 1995 at the courtyard of PW2 in Attingal. The trial court convicted; this was upheld by the Sessions Court in Crl.Appeal No.261/1998 (dated 28-11-2002). The prosecution relied on the testimonies of PW1 (injured), PW2 (property owner), PW3 (passerby), and PW5 (doctor) with Ext.D1 defense exhibit. The doctor reported a deep wound to PW1's left wrist with a fracture; the weapon used was a sword. The revision petition argued misreading of evidence by the courts below; that the weapon was not recovered; that minor inconsistencies in PW1–PW3 testimony should not undermine credible evidence; that the revisional court should correct alleged errors. The State countered, maintaining the conviction and that non-recovery of weapon is not a fatal flaw. The High Court observed that the aggregate evidence is convincing; while conceding some inconsistencies, it held that they do not undermine the core facts. Considering the delay and the exercise of revisional powers, the court partly allows the petition: the conviction stands; the sentence is reduced to one year rigorous imprisonment with a Rs 25,000 fine; default imprisonment for six months; the fine, if paid, to PW1 as compensation under Cr.P.C. 357(1).

Provisions of Law Cited

Section 326 I.P.C.Section 357(1) Cr.P.C.

Legal Doctrines & Maxims

Minor contradictions cannot be taken as a reason to throw away the reliable testimony.
Non-recovery of weapon cannot be treated as a vital flaw in the prosecution case.
If all witnesses uniformly deposed the same fact in the same fashion, that would itself be a doubtful reason to accept their evidence.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the evidence was misread by the courts below, resulting in miscarriage of justice. The argument is that the trial and appellate courts relied on the testimonies of PW1–PW3 and accepted circumstantial aspects that require re-evaluation. The defense emphasizes that non-recovery of the weapon weakens the prosecution case, a gap not fatal in suitably supported cases. Defence notes that Ext. P2 wound certificate and the doctor’s testimony were not fully probed, and that minor contradictions in the witnesses’ accounts should not justify conviction absent consistent corroboration. The petitioner seeks invocation of revisional powers to correct alleged mis-readings and to reassess the evidence; requests leniency in sentencing given the time elapsed since the incident, and argues that the sentence may be tempered while maintaining conviction.

Contentions of Respondents

The State contends that the conviction and sentence are well-founded on the evidence on record. It relies on PW1–PW3’s testimonies, the wound certificate, and medical testimony to show that the petitioner caused a grievous injury with a sword. It argues that non-recovery of the weapon is not a fatal flaw per se and cites precedents such as Rajinder v. State of Haryana (AIR 2004 SC 4352) to support the principle. It requests sustaining the conviction and an appropriate sentence, highlighting the severity of the offence and the need for deterrence and justice for the injured party.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajinder and Others v. State of Haryana	AIR 2004 SC 4352	Mentioned Only	The case is cited by the prosecution to support the proposition that non-recovery of the weapon is not a fatal flaw; the High Court does not adopt it as binding precedent but uses the principle to justify its own finding.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY, THE 15TH DAY OF DECEMBER 2014/24TH AGRAHAYANA, 1936** ## **Crl.Rev.Pet.No. 1953 of 2003 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN Crl.Appeal No.261/1998 of SESSIONS COURT, TRIVANDRUM DATED 28-11-2002.** **AGAINST THE JUDGMENT IN CC 148/1996 of J.F.C.M.-I,ATTINGAL DATED 16-06-1998.** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **-----------------------------------------------------------------------** **OUSEPH JERRY, VINEETHA LAND VEEDU, VETTUTHURA, VETTUTHURA DESOM, KADINAMKULAM VILLAGE.** **BY ADV. SRI.V.N.ACHUTHA KURUP (SR.).** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT :** **---------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OR KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.MADHU BEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **amk** ## **A.HARIPRASAD, J.** ## **------------------------------------------------** ## **Crl.R.P No.1953 of 2003** **-----------------------------------------------Dated this the 15[th] day of December, 2014.** ## **O R D E R** Revision petitioner is challenging the conviction under Section 326 I.P.C imposed on him by the trial court, which was later confirmed in appeal by the learned Sessions Judge. 2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 3. Case against the revision petitioner, in short, is that on 01-10-1995 at about 12.30 p.m., he caused grievous hurt to PW1 by cutting on his left wrist with a sword. The incident happened from the courtyard of PW2. At the time of trial, prosecution examined eight witnesses and marked six documents. DW's 1 and 2 are the defence witnesses. Ext.D1 is the document marked by the defence. 4. Learned counsel for the revision petitioner contended that the evidence in this case was misread by the courts below, which resulted in miscarriage of justice. According to him, the **Crl.R.P No.1953 of 2003 2** evidence was wrongly appreciated and therefore the revisional powers of this Court have to be invoked to correct the mistake. Per contra, learned counsel for the revision petitioner contended that the conviction and sentence are proper in this case and it is based on the evidence on record. Both the lower appellate court and the trial court relied on the testimony of PW's1 to 3. 5. PW1 is the injured witness. According to him, on 01-10-1995 at about 12.30 p.m., the revision petitioner attacked him with a sword from the courtyard of PW2. It is the case that the revision petitioner inflicted a cut injury with a sword, while PW1 was talking to PW2. The blow was directed against his neck. Luckily, he warded off the cut with his left hand. In the attack, his left wrist was severely damaged. Immediately after receiving the injury, he fell down and became unconscious. He was taken to Medical College Hospital and treated there for 13 days. Motive for the incident alleged by PW1 is that the revision petitioner had come to his wife's pan shop and purchased a **Crl.R.P No.1953 of 2003 3** cigarette. Thereafter, he picked up quarrel with PW1's wife. The pan shop was in front of his house. On hearing the altercation, PW1 came out and sent the revision petitioner away. Infuriated by this act of PW1, he attacked him. 6. PW2 is the owner of the property. The incident happened from the courtyard of PW2. She also testified in support of the prosecution case. In spite of cross examination conducted on PW's 1 and 2, in all material particulars they supported each other. 7. PW3 was a passerby, who had occasions to see the incident. It is his case that he saw PW1 lying on the floor in a pool of blood. At that time, the revision petitioner was running towards west with a sword. Testimony of this witness also lends support to the prosecution case. 8. Court below placed reliance on the testimony of PW5, the Doctor, who treated PW1. Ext.P2 is the wound certificate. PW5 examined the accused at about 1.30 p.m on the **Crl.R.P No.1953 of 2003 4** same day. It is shortly after the incident. It is the recitals in Ext.P2 wound certificate that the left wrist of PW1 was cut and palm was hanging on the skin. X-ray confirmed fracture of bones. It is evident that a sharp weapon was used to cut the left wrist of PW1, which caused extensive injury. 9. Testimony of PW7, the Investigating Officer was also considered by the court below. Totality of evidence adduced by the prosecution would clearly show the involvement of the revision petitioner in the offence. Learned counsel for the revision petitioner contended that glaring incongruity in the testimony of PW's 1 to 3 would weaken the prosecution case. It is to be borne in mind that this is a case, wherein, direct oral evidence regarding the incident was adduced by the prosecution. If all the witnesses uniformly deposed the same fact in a same fashion, then, as observed by the Apex court in many decisions, that itself would be a doubtful reason to accept their evidence. Minor contradictions cannot be taken as a reason to throw away **Crl.R.P No.1953 of 2003 5** the reliable testimony. I find no material to discard the oral evidence adduced by the prosecution witnesses cited to prove the incident. 10. Learned counsel for the revision petitioner contended that non recovery of weapon weakens the prosecution case. According to him, the weapon allegedly used by the revision petitioner was not recovered. Also, the doctor, who issued Ext.P2 wound certificate was not questioned regarding the nature of weapon. It is true that non recovery of weapon may be fatal in some cases. But it cannot be stated as a universal rule that in all cases, where the weapon of oppression could not be recovered in the course of investigation, the case should end in an acquittal. It depends on the facts and circumstances of each case. Here, the oral evidence adduced by the prosecution witnesses emphatically show that the revision petitioner attacked PW1 with a sword stick causing injury. The Investigating officer has stated a reason that the accused could not be taken to **Crl.R.P No.1953 of 2003 6** custody as he surrendered before the court and obtained bail. It may appear that it is not a convincing answer. But then, it is axiomatic that non recovery of weapon cannot be treated as a vital flaw in the prosecution case. I find in the light of the convincing oral evidence that the accused cannot get any benefit for this reason. Learned Public Prosecutor relied on a decision in _**Rajinder and Others v. State of Haryana (AIR 2004 SC 4352)**_ to contend that non recovery of the weapon is not a reason to acquit the accused. 11. On going through the oral and documentary evidence adduced in this case, I am of the view that conviction of the appellant by the courts below is perfectly legal and it should be upheld. 12. Learned counsel for the revision petitioner contended that elapse of time after the incident and the agony of prolonged prosecution will make the revision petitioner entitled to request for leniency in the matter of sentence. It is true that the sentence **Crl.R.P No.1953 of 2003 7** can be suitably modified in this case. In the result, the revision petition is partly allowed. Conviction of the revision petitioner under Section 326 I.P.C is confirmed. The sentence is reduced and he shall undergo rigorous imprisonment for a period of one year and pay a fine of Rs.25,000/- (Rupees twenty five thousand only). If the fine amount is recovered, it shall be paid as compensation to PW1 under Section 357(1) Cr.P.C. If fine is not paid, the revision petitioner shall undergo simple imprisonment for a further period of six months. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD,** amk **JUDGE.**