## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE P.D.RAJAN**
**FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938 Crl.Rev.Pet.No. 1338 of 2005 ( ) ---------------------------------**
**Crl.APPEAL 207/2000 of ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 28-02-2005**
**CC 548/1998 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT, RANNI DATED 06-10-2004**
**REVISION PETITIONER/APPELLANT/ACCUSED::**
**---------------------------------------**
**PANKAJAKSHAN, S/O.KESAVAN, KOCHUPARAMBIL, POOTENMOOZHY, PERINAD.**
**BY ADVS.SRI.N.V.KURIAKOSE SRI.T.K.DEVARAJAN**
**RESPONDENT/RESPONDENT/COMPLAINANT::**
**-----------------------------------**
**STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY PUBLIC PROSECUTOR SMT.M.G.LISHA**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**DSV/1/10/16**
## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.1338 of 2005 ---------------------------------Dated this the 17[th] day of June, 2016**
## **O R D E R**
This revision petition is preferred by the accused against the judgment in Criminal Appeal No.207 of 2000 of the Additional Sessions Judge, Adhoc, Fast Track-II, Pathanamthitta. He was charge sheeted in C.C. No.548 of 1998 before the Judicial First Class Magistrate Court, Ranni for having committed the offence punishable under Sec.324 of the Indian Penal Code (hereinafter referred to as IPC for short). The learned Magistrate convicted the accused under Sec.324 IPC and sentenced him to rigorous imprisonment for one year. Against that, he preferred the above Criminal Appeal before the Additional Sessions Judge, Adhoc, (Fast Track-II), Pathanamthitta, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition.
2. The charge against the accused is that on 01.08.1998 at 10 o' clock in the night, the accused
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inflicted a cut injury with a chopper on the left side of the head of PW2 while he was participating in a music performance in the courtyard of house No.VIII/462 Pottanmoozhi Chembakkara in Peerunadu Panchayath. The accused also assaulted PW1, while he intervened in the incident as a result, they sustained serious injuries and both of them were removed to the hospital. Peerunadu police registered the crime and after completing investigation, Sub Inspector, Peerunadu laid charge before the Judicial First Class Magistrate Court, Ranni. During trial prosecution examined PW1 to PW7 and marked Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence.
3. Learned counsel appearing for the revision petitioner submitted that there is no proper identity about the accused. The vague statement made by PW2 before the court cannot be treated as a substantive evidence. The chopper used for inflicting injury was not
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recovered. The place of occurrence also was not specifically mentioned.
4. The learned Public Prosecutor strongly opposed the above arguments and contended that no serious questions were asked by the accused in the trial court, therefore the above contention is not sustainable at this revision stage and she prays to dismiss the revision petition.
5. In order to prove the occurrence, prosecution examined PW1 in the trial court. The evidence of PW1 shows that on the date of incident, he sustained injury but he do not remember the date. He admitted that on 01.08.1998, there was a Bhajan in the Kollamparambil house in connection with the death anniversary and he did not see the accused assaulting PW2 with the chopper. These witnesses were declared hostile. He sustained injury on his hand, but did not identify the assailant.
6. PW2, another injured, gave Ext.P1 statement to the Police. According to PW2 on 01.08.1998 at 10.30 p.m., he was participating in the 41[st] death
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ceremony of Kollamparambil Balan, where there was a music concert. PW1 rectified a mistake committed by the accused while singing Bhajans. Being provoked by this, the accused took a chopper and assaulted him and cut on the back side of his left ear. When PW1 intervened, the accused also assaulted him. After the incident, he ran away from that place with the chopper. Immediately after the incident, PW1 was removed to General hospital. From there, he was taken to the Pushpagiri hospital, Pathanamthiatta. When PW1 was cross examined by the defence counsel, he stated that he saw the accused in the light of petromax. Nothing has been asked about the identity of the accused in the trial court. It is true that PW2 did not mention the name of the accused but he stated that the accused assaulted him. No serious questions were asked by the defence counsel to disbelieve his version. Since the identity was not challenged in the trial court, as a new fact, he cannot raise that fact in the revisional jurisdiction. No illegality is committed by the trial court in this aspect.
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7. The other witness PW3 did not support the prosecution case. But the above oral evidence of PW2 shows that the accused assaulted him. The injured were examined by PW4 at General hospital, Pathanamthitta and issued Exts.P2 and P3 wound certificates. The injuries are specifically mentioned in Exts.P2 and P3. Both injured sustained incised wound. The medical evidence is corroborating the prosecution case. PW5 arrested the accused and released him on bail. PW4 attested Ext.P4 scene mahazar. PW7 recorded Ext.P5 First Information Report. Exts.P1(a) and (b) are the body notes. The investigation was completed by the Sub Inspector. A perusal of the above evidence it is clear that the trial court considered the oral and documentary evidence. Since no dispute was raised with regard to recovery of weapon and the identity of the accused in the trial court, I am of the view that the evidence of PW2 itself is sufficient to prove the prosecution case. Even though, the learned counsel relied on the decision **Vayalali Girishan and others** v. **State of Kerala**
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**[2016 (1) KLD 536 (DB)]** , considering the facts of the case that decision is not applicable in this case. Since the sole accused was identified by the injured in the presence of petromax light, I cannot discard the oral evidence of PW2. The sole accused is present before this court, non mentioning of the name before this court itself will not ruin the prosecution case. If the court believed the oral evidence of PW2 as true, the court can rely the evidence of PW2, the injured, even without mentioning the name. Therefore, the conviction under Sec.324 IPC is confirmed.
7. The learned counsel appearing for the revision petitioner submitted that the revision petitioner is now living a peaceful life with his wife and two children. His elder son passed Plus two and younger son is studying in the 3[rd] standard. He is the only breadwinner of the family and no previous criminal antecedents were reported against the revision petitioner. Sending him to jail will affect his family, so he prays for leniency. Considering the nature of injury and the character and conduct of the accused, I am of the view that the
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sentence imposed by the trial court on the revision petitioner is modified as follows:
8. The revision petitioner is sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.15,000/- (Rupees fifteen thousand only) in default, the learned Magistrate shall issue non bailable warrant against him. Petitioner is directed to surrender in the trial court forthwith.
Revision petition is partly allowed as above.
Sd/-
**P.D. RAJAN, JUDGE**
/ True Copy /
NS/23/06/2016
P.A. To Judge
