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Mathu Paily Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1962CriLJ652
AppellantMathu Paily
RespondentState of Kerala
Cases ReferredQueen Empress v. Vasta Chela
Excerpt:
.....him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under section 3 or section 4 and if the court passes any sentence of imprisonment on the offender it final record its reasons for doing so. section 3 refers to the power of the court to release certain offenders after admonition and section 4 deals with the release on probation of good conduct......would not be desirable to deal with him under section 3 or section 4 and if the court passes any sentence of imprisonment on the offender it final record its reasons for doing so. section 3 refers to the power of the court to release certain offenders after admonition and section 4 deals with the release on probation of good conduct.in the absence of any circumstances to show that it is undesirable to deal with him under section 4 it cannot be said that the learned sessions fudge has not properly exercised his discretion in invoking the provisions of section 4 of the probation of offenders act. sentence is purely in the discretion of the court and unless the sentence awarded is m grossly inadequate; the revisional; court will not interfere. on a consideration of the circumstances of.....
Judgment:
ORDER

P. Govinda Menon, J.

1. Cri. R.P. 273/60 is filed by the 2nd accused challenging his conviction under Section 324 IPC, and sentence of rigorous imprisonment for two months awarded to him by the Addl. First Class Magistrate of Ernakulam confirmed by the learned Sessions Judge in Criminal Appeal No. 28 of 1080. Cri. R.P. 420/60 is by P.W. 1 and 4 who are the injured in the case against the acquittal of the 1st accused Under Section 326 I.P.C. and convicting him only under Section 324 I.P.C. and releasing him under the Probation of Offenders Act. Notice was also issued by this Court to show cause why the sentence on the 1st accused should not be enhanced.

2. The third accused in the case was acquitted. She is the wife of the 2nd accused and the first accused is their son. They are related to P.W. 1 and are neighbouring cultivators. For some time past there were disputes and litigation regarding the varamba separating their properties. On 18.10.58 it is stated the accused dug up the bund and planted some arecanut saplings. This was removed by the complainant's people. On the next day the accused again planted are-canut plants and erected. Offence. P.W. 1 informed his brother P.W. 4 and together they proceeded to the scene at about 5 p.m.

3. When they reached the place they saw His accused standing in their property. P.W. 1 asked the third accused why they were troubling dim like that. The 3rd accused said that they were not troubling and immediately the 2nd accused beat P.W. 1 on the head with a stick M.O. 1 which he had with him. Then the 2nd accused caught him with both the hands and handed the stick to his wife. She also heat him with the stick. When P.W 1 was about to fall down their son the 1st accused came running and stabbed him On his back several times. P.W. 4 tried to intervene and then the 1st accused cut him also. He warded off the cut and got injured in his arm. The 2nd accused santched the stick from the third accused and beat Pw-4.

4. On hearing the cries P.W. 3 he son of P.W. 4 came, The injured were removed to the hospital-Pws-2 and 6 two of the neighbours who were present (there witnessed the incident. Pw-9 the Medical Officer examined Pw-1 and issued a certificate Ext. P-5. P.W. 1 had 9 injuries which have been correctly described in the certificate. P.W-4 was also examined and his wound certificate is Ext. P.W. 6, P.W. 12 is another Assistant Surgeon of the hospital who proved the discharge certificates Exts P 8 and P 9. P.W. 14 the Sub-Inspector of police came to the hospital and recorded the statement Ext. P-1 from P.W 1, The accused surrendered on 25.10.1958. The stick M.O. 1 was recovered from the house of the 1st accused and knife M.O. 2 was produced by the 2nd accused. Alter completing the investigation the accused were charge sheeted.

5. The 2nd accused admitted the incident, but according to him Pws-1 and 4 were the aggressors. He stated that the bund belongs to him, that it had been, surveyed and that they had planted are canut saplings on the bund. He denied having beaten or caused hurt to P.ws-1 and 4. The 1st accused admitted having inflicted the injuries on Pws-1 and 4, but he would have ft that he had done so because he found his father being attacked by Pws-1 and 4. The 3rd accuse denied participation in the incident.

6. On a consideration of the evidence the learned Addl. 1st Class Magistrate found that the prosecution has not succeeded in bringing home the guilt to the 3rd accused and acquitted her. The 1st accused was found guilty under Section 326 IPC., and sentenced to rigorous imprisonment for 6 months and the 2nd accused was convicted under Section 324, I.P.C. and sentenced the rigorous imprisonment for 2 months. On appeal the learned Sessions Judge of Ernakulam confirmed the conviction and sentence passed on the 2nd accused, He also found that the 1st accused had inflicted the stab injuries on P.ws-1 and 4, but he found that the offence committed was only one under Section 324 I.P.C. and since the accused was a boy aged only 19 he invoked the provisions of Section 4 of the Probation of Offenders Act and placed him under the supervision of the District Probation Officer.

7. The learned Counsel appearing for the accused took me through the entire evidence as he is entitled to do under Section 439 Clause 6 Cri. P.C. The incident is amply proved by the evidence of the disinterested witnesses and the admission of the accused. The plea of private defence has been rightly negatived. I do not fine any good reason to differ from the concurrent finding of the courts below that the offence as been brought home to the accused free from doubt.

8. The next question is as to what is the offence that they have committed. The 1st accuse as stated already has been found guilty under Section 324 I.P.C. only by the learned Sessions Judge. He has discussed fully the question whether the offence committed by the 1st accused would amount to an offence under Section 326 I.P.C. in paragraphs 16 to 20 of the judgment. No doubt P.ws 1 and 4 have stated that they were in-patient is the hospital for more than 20 days as require under Section 320 Clause 8. But curiously the doctor has not been questioned whether the hurt causecj the sufferer to be during the space of 20 days in severe bodily pain or unable to follow his ordinary pursuits. It is only if there is such proof that it would be safe to conclude that the injury would come in under the description of grievous injury. P.W. 9 the doctor was asked about injury No. 4 sustained by P.W. 1 whether it was a grievous or a simple injury and his answer was 'I do not know.'

9. The mere fact that the sufferer did not attend to his duty for the statutory period or that he remained in the hospital for that period is no indication of his inability to do go. As wan observed in Queen Empress v. Vasta Chela ILR 19 Bom 247:

An injured man may be quite capable at following his ordinary pursuits long before twenty days are over and yet for the sake of permanent recovery or greater ease or comfort be willing to remain as a convalescent in a hospital, especially if he is fed at the public expense.

When the patient is treated in a hospital, the opinion of the Medical Officer attending on him on the point of his disability is very important. Unfortunately that is lacking in this case.

10. Injury No. 4 in Ext. P 5 will not also firing it under Clause (6) of Section 320 as it docs not involve permanent disfiguration of the head or face. To disfigure is to do a man some external Injury which detracts from his personal appearance. P.W. 1 was present in court and on looking at the scar of the injury, I am not prepared to they that the injury has disfigured his face. Similarly injury No. 2 sustained by P.W. 4 also would not amount to a grievous injury because as a result of that injury the finger of P.W. 4 was not permanently incapacitated. There is no such Evidence in the case. Neither the doctor nor P.W. 4 says that his finger was permanently incapacitated.

11. The learned Counsel who appeared for the injured in Cri R.P. 420/60 has strenuously contended that there is sufficient evidence to warrant a finding that the injuries were grievous and he pointed out that the evidence of P.Ws 1 and 4 remain unchallenged in cross-examination. But as stated earlier being in the hospital for twenty days' is not the sole test. Even otherwise revisional jurisdiction of this Court when invoked by a private party would be exercised only in exceptional cases where the interests of public Justice require interference for correction of a manifest illegality or the prevention of gross miscarriage of justice and the jurisdiction will not ordinarily be used even if it could be said (that the court had misappreciated the evidence or taken a wrong view of the law. I am unable to agree that this is a case for interference in revision.

12. Then the question is regarding the sentence awarded to the accused. Under Section 6 of the Probation of Offenders Act when arty person under twenty one years' of age is found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under Section 3 or Section 4 and if the court passes any sentence of imprisonment on the offender it final record Its reasons for doing SO. Section 3 refers to the power of the court to release certain offenders after admonition and Section 4 deals with the release on probation of good conduct.

In the absence of any circumstances to show that it is undesirable to deal with him under Section 4 it cannot be said that the learned Sessions Fudge has not properly exercised his discretion in invoking the provisions of Section 4 of the Probation of Offenders Act. Sentence is purely in the discretion of the court and unless the sentence awarded is m grossly inadequate; the revisional; court will not interfere. On a consideration of the circumstances of this case. I do not find any ground to interfere with the discretion exercised by the learned Sessions Judge. Cri. Revision Petition 420 of 1960 has only to be dismissed.

13. The learned Counsel for the 2nd accused contends that the stick M.O. 1 cannot be considered as a weapon of offence likely to cause death and therefore the offence committed by him would only be one under Section 323 IPC, and it h submitted that in any view of the case it is not necessary in the interests of justice that the 2nd accused should be sent to jail. It was pointed out that he had already been in jail for a few days till he was released on bail by this Court and that it is unnecessary to send him back to jail. Without deciding whether the offence would only be one Under Section 323 IPC., I think the interests of justice will be met by awarding a heavy sentence of fine on the 2nd accused.

In the result the conviction of the 2nd accused under Section 324 IPC, 1st confirmed but his sentence is altered to one of a fine of Rs. 200/-in default to undergo rigorous imprisonment for two months'. Out of the fine, if collected, a sum of Rs. 75/- will be paid to each of the injured persons Pws-1 and 4 as compensation for the injuries sustained by them under Section 545(1) Cri. P.C. With this modification the revision petitions are dismissed. Time for payment one month from this date.


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