PRADEEP Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner is the accused 1 to 4 in C.C. No.159/1994 who stands convicted for the offences under sections 323, 324, 326 and 341 r/w Section 34 of the Indian Penal Code and sentenced, as modified by the appellate court, to undergo rigorous imprisonment for nine months each for the offence under section 326 IPC.The rest of the sentence awarded by the trial court i.e., rigorous imprisonment for three months for the offence under section 323 IPC and rigorous imprisonment for six months for the offence under section 324 IPC, stand confirmed. No separate sentence has been awarded for the offence under section 341 IPC.

(2.) The prosecution case is that on 04.06.1994 at about 12.30 p.m. the accused in furtherance of their common intention restrained PW1 who wasridinga motorcycleand attacked him with weapons like iron pipe and nunjak.The evidence adduced in the matter consisted of the testimony ofPWs 1 to 9, Exts. P1 to P7 and MOs 1 and 2.In support of the prosecution version PW1, the injured and PW2, the occurrence witness has testified. The rest of the witnesses turned hostile to the prosecution. It is pointed out that it can be found from the evidence of PW9, the doctor who proved Ext.P7, wound certificate the only major injury is the loss of one tooth. The other injuries are only lacerated wounds.As per the prosecution allegations, he has been beaten with the iron pipe and beaten repeatedly with the nunjak. As pointed out by the counsel for the revision petitioner the injuries would have been more serious had it been the case of beating with an iron pipe and nunjak.There is no other injuries over the lipor face whichwouldhave resulted hadhebeenbeaten with the nunjak on the face and as a result of which he lost one tooth. In the circumstances, it appears that the prosecution version as such cannot be said to have beenestablished beyond reasonable doubt.In the circumstances, it appears that the loss of tooth as such cannot be the result of blow on the face with a weapon like nunjak as alleged.I find that the conviction for the offence under section 326 IPC, in view of the above evidence, cannot be sustained. Hence, the conviction for the offence under section 326 is set aside.

(3.) All the same, in view of the evidence of the injured witness and PW2, the occurrence witness the assault stand proved. In the circumstances, the convictions for the rest of the offences are upheld.