2025:KER:30969 Crl.R.P.No.1860/2006 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE G.GIRISH THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 CRL.REV.PET NO. 1860 OF 2006 AGAINST THE JUDGMENT DATED 07.09.2005 IN Crl.A NO.164 OF 1998 OF ADDITIONAL SESSIONS COURT-II,THIRUVANANTHAPURAM IN CC NO.711 OF 1994 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL DATED 31.03.1998 REVISION PETITIONER/1ST APPELLANT/1ST ACCUSED: SHIBU, S/O. SEKHARAN, HOUSE NO.10/217, MANJAPPARA, VAMANAPURAM, PULIMATH, THIRUVANANTHAPURAM. BY ADV SRI.C.R.SIVAKUMAR RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. SANGEETHARAJ N.R., PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.04.2025, THE COURT ON 10.04.2025 PASSED THE FOLLOWING: 2025:KER:30969 Crl.R.P.No.1860/2006 2 O R D E R The revision petitioner is the first accused in C.C.No.711/1994 on the files of the Judicial First class Magistrate Court-II, Attingal. He, along with three other accused, were found guilty of commission of offence under section 324 and 326 I.P.C read with Section 34 I.P.C and convicted thereunder by the learned Magistrate. A sentence of simple imprisonment for two years under section 324 I.P.C, and simple imprisonment for two years and fine Rs.1,000/- under Section 326 I.P.C, were awarded as punishment to all accused. In the appeal preferred before the Sessions Court, Thiruvananthapuram as Crl.A.No.164/1998, the learned Additional Sessions Judge-II, Thiruvananthapuram set aside the conviction and sentence of accused Nos.3 and 4. However, the Appellate Court confirmed the conviction of the petitioner and the second accused for the offence under section 326 and 324 I.P.C read with Section 34 I.P.C. The sentence was limited to simple imprisonment for two years and fine Rs.1,000/- which the Trial Court awarded for the offence under section 326 I.P.C. The Appellate Court found that there was no need to award a separate sentence for Section 324 I.P.C. It is aggrieved by the aforesaid 2025:KER:30969 Crl.R.P.No.1860/2006 3 judgment dated 07.09.2005 in Crl.A.No.164/1998, that the petitioner (first accused) has approached this Court in this revision. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala. 3. The prosecution case is that on 19.07.1994, at about 05:15 p.m, the accused Nos.1 to 4, in furtherance of their common intention, inflicted voluntary hurt and grievous hurt upon PW1; with accused Nos.1 and 2 hacking with choppers and the third accused beating with a cudjal stick. The fourth accused is alleged to have encouraged and abetted the commission of the above crime. PW1 sustained severe cut injuries in addition to fracture of his right shoulder as a result of the said incident. 4. Before the Trial Court, the prosecution examined six witnesses as PW1 to PW6 and marked six documents as Exts.P1 to P6. The choppers used by the accused Nos.1 and 2 to inflict injuries upon PW1 were marked as MO1 series. The petitioner and the other accused denied the incriminating circumstances in their statements given under Section 313 Cr.P.C. No defence evidence was adduced from the part of the accused. 5. PW1 to PW3 are the witnesses who testified before the Trial Court about the criminal acts committed by the petitioner and the other 2025:KER:30969 Crl.R.P.No.1860/2006 4 accused. Among the above witnesses, PW1 stated about the assault perpetrated upon him by the accused. The act of the petitioner hacking him with a chopper has been clearly narrated by PW1 in his evidence. PW2 and PW3 are the other eye witnesses who had the occasion to see the incident involved in this case. They also testified before the Trial Court in clear and consistent terms about the act of the petitioner inflicting cut injuries upon PW1 with a chopper which they identified as MO1. The doctor who treated PW1 testified before the Trial Court as PW4 and confirmed the likelihood of the injury suffered by PW1 being inflicted with MO1 chopper. It is by relying on the aforesaid evidence that the Trial Court found the petitioner guilty of commission of the offences under Sections 324 and 326 I.P.C. 6. The learned counsel for the petitioner would contend that the evidence adduced by the prosecution is liable to be eschewed since there was no proper recovery of the material objects involved in the crime. It is stated that the contention of the prosecution that the accused Nos.1 and 2 had voluntarily handed over the choppers (MO1 series) to the police on the next day of the incident, is liable to be discarded as a cock and bull story. Thus, it is argued that the Trial Court as well as the Appellate Court relied on inadmissible evidence. 2025:KER:30969 Crl.R.P.No.1860/2006 5 7. It is not possible to accept the aforesaid argument advanced by the learned counsel for the petitioner. The mere fact that the accused Nos.1 and 2 themselves had handed over the weapons of offence to the Investigating Officer at the police station on the day succeeding the date of crime, cannot be taken as a circumstance showing the falsity of the prosecution case. It is true that if any confession had been made by the accused Nos.1 and 2 to the police while handing over the above weapons, such confession is liable to be discarded as inadmissible evidence. However, the evidence adduced by the prosecution through PW1 to PW3 about the use of MO1 series by the accused Nos.1 and 2 to inflict injuries upon PW1, cannot be eschewed for the sole reason that the above weapons were voluntarily handed over to the police by the accused Nos.1 and 2 on the day after the date of incident. As far as the present case is concerned, it cannot be said that the evidence adduced by the prosecution about the use of MO1 series choppers by accused Nos.1 and 2 while mounting physical assault upon PW1 is vitiated since there was no recovery coming under the purview of Section 27 of the Evidence Act. The Trial Court as well as the Appellate Court have rightly appreciated the evidence on record and arrived at a correct finding regarding the commission of offence under Sections 324 and 326 I.P.C by the petitioner 2025:KER:30969 Crl.R.P.No.1860/2006 6 herein. It is not possible to unsettle the aforesaid concurrent findings on fact by the courts below in the absence of manifest illegality or impropriety perpetrated by the above courts. Accordingly, I find that the conviction of the petitioner by the Trial Court, which has been upheld in appeal by the Appellate Court, is not liable to be interfered with in this revision. 8. As regards the sentence awarded by the courts below, it seems that the tenure of simple imprisonment for two years is somewhat excessive at present, after the elapse of more than three decades from the date of crime. Having regard to the facts and circumstances of the case, I am of the view that the sentence awarded by the courts below is liable to be modified to simple imprisonment for six months and fine Rs.5,000/- with a default clause of simple imprisonment for three months. Out of the fine amount, if realised, an amount of Rs.4,000/- shall be given to PW1 as compensation under section 357(1)(b) Cr.P.C. Thus, the sentence awarded by the Appellate Court is liable to be modified to the above extent. In the result, the revision stands allowed in part as follows: 2025:KER:30969 Crl.R.P.No.1860/2006 7 i) The concurrent findings of conviction of the petitioner by the Trial Court and the Appellate Court for the commission of offence under section 324 I.P.C and 326 I.P.C are hereby upheld. ii) The sentence awarded by the Appellate Court under section 326 I.P.C is modified to simple imprisonment for six months and fine Rs.5,000/- (Rupees five thousand only). The finding of the Appellate Court that there need not be a separate sentence for the commission of offence under section 324 I.P.C, is upheld. iii) In default of payment of fine, as directed above, the petitioner will undergo simple imprisonment for a further term of three months. iv) Out of the fine amount, if realised, Rs.4,000/- (Rupees four thousand only) shall be paid to PW1 as compensation under section 357(1)(b) Cr.P.C. Transmit a copy of this order, along with the case records to the Trial Court, for immediate enforcement of the sentence, as directed above. (sd/-) G. GIRISH, JUDGE jsr 2025:KER:30969 Crl.R.P.No.1860/2006 8 APPENDIX OF CRL.REV.PET 1860/2006 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF THE MEDICAL CERTIFICATE 13/05/2006.