Kerala High Court
Johny vs State Of Kerala on 7 March, 2025
CRL.REV.PET NO. 1341 OF 2014 1 2025:KER:19097
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
CRL.REV.PET NO. 1341 OF 2014
Crl.A NO.29 OF 2014 OF ADDITIONAL SESSIONS COURT-IV,
THODUPUZHA
CC NO.346 OF 2011 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, KATTAPPANA
REVISION PETITIONER/APPELLANT/ACCUSED:
JOHNY,
AGED 56 YEARS,
S/O. JOHN, CHEENKACHEL HOUSE, VALLAKKADAVU KARA,
VALLAKKADAVU P.O., PIN CODE-685533,
KATTAPPANA VILLAGE, IDUKKI DISTRICT.
BY ADVS.
SRI.K.C.ELDHO
SRI.JIJO THOMAS
SRI.M.REVIKRISHNAN
SRI.SURAJ.S
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031.
SMT.SEETHA S., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 19.02.2025, THE COURT ON 07.03.2025 DELIVERED
THE FOLLOWING:
CRL.REV.PET NO. 1341 OF 2014 2 2025:KER:19097
ORDER
The revision petitioner is the accused in C.C.No.346 of 2011
on the file of the Judicial First Class Magistrate, Kattappana, who
was convicted and sentenced to undergo rigorous imprisonment
for a period of three months for the offence under Section 323 of
Indian Penal Code, 1860 (‘IPC‘ for short) and rigorous
imprisonment for a period of three years and to pay fine of
Rs.5,000/-, and in default of payment of fine, to undergo simple
imprisonment of a period of one month for the offence under
Section 325 of IPC, as per the impugned judgment dated
27.01.2014 passed by the learned Magistrate. The appeal filed by
the petitioner/accused was dismissed as per the judgment dated
09.07.2014 passed by the Additional Sessions Judge-IV,
Thodupuzha, in Crl.Appeal No.29 of 2014. Hence the
petitioner/accused is now before this Court with the above revision
petition filed under Section 397 read with 401 of the Code of
Criminal Procedure.
2. The prosecution case is that on 27.05.2011, at about
10.30 a.m, at Kattappana Old Bus Stand, the accused voluntarily
caused grievous hurt to PW1, by beating on his left ear with hand
CRL.REV.PET NO. 1341 OF 2014 3 2025:KER:19097
resulting fracture of diaphragm and also voluntarily caused hurt
to PW1 by kicking on his hip.
3. Before the trial court, PWs 1 to 8 were examined and
Exts.P1 to P7 documents were marked. The accused was then
examined under Section 313 of Code of Criminal Procedure, 1908
(‘Cr.P.C‘ for short), who denied the incriminating evidence brought
out against him. From the side of the accused DW1 was examined
and Exts.D1 to D3 documents were marked. Though Ext.D2 was
marked during evidence, the learned Magistrate stated in the
impugned judgment that no such document is available for
marking. After analysing the evidence and hearing the learned
counsels appearing on both sides, the trial court convicted and
sentenced the accused which was confirmed in the appeal.
4. Heard the learned counsel for the petitioner/accused and
the learned Public Prosecutor.
5. The learned counsel for the petitioner/accused argued
that at the time of registration of the FIR, Section 323 of IPC alone
was there in the crime. But during the course of investigation,
Section 325 was incorporated in the case and the final report was
filed accordingly. But there is no evidence to attract Section 325
of IPC.
CRL.REV.PET NO. 1341 OF 2014 4 2025:KER:19097
6. The learned Public Prosecutor submitted that the courts
below correctly appreciated the evidence and hence no
interference is warranted to the impugned judgments of the trial
court as well as the appellate court.
7. In the instant case, the trial court as well as the appellate
court concurrently found the accused guilty of the offences
charged. The possibility of interference by the revisional court in
such circumstances is very limited. In State of Kerala v.
Jathadevan Namboodiri [AIR 1999 SC 981], the Apex Court
held thus:
“In its revisional jurisdiction, the High Court can call for
and examine the record of any proceedings for the
purpose of satisfying itself as to the correctness, legality
or propriety of any finding, sentence or order. In other
words, the jurisdiction is one of Supervisory Jurisdiction
exercised by the High Court for correcting miscarriage
of justice. But the said revisional power cannot be
equated with the power of an Appellate Court nor can it
be treated even as a second Appellate Jurisdiction.
Ordinarily, therefore, it would not be appropriate for the
High Court to reappreciate the evidence and come to its
own conclusion on the same when the evidence has
already been appreciated by the Magistrate as well as
the Sessions Judge in appeal, unless any glaring feature
CRL.REV.PET NO. 1341 OF 2014 5 2025:KER:19097is brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice.”
8. In Munna Devi vs State of Rajasthan [AIR 2002 SC
107] the Apex Court in paragraph 3 held thus:
“3. We find substance in the submission made on behalf
of the appellant. The revision power under the code of
Criminal procedure cannot be exercised in a routine and
casual manner. While exercising such powers the High
Court has no authority to appreciate the evidence in the
manner as the trial and the appellate courts are
required to do. Revisional powers could be exercised
only when it is shown that there is a legal bar against
the continuance of the criminal proceedings or the
framing of charge or the facts as stated in the First
Information Report even if they are taken at the face
value and accepted in their entirety do not constitute
the offence for which the accused has been charged.”
9. In Sanjaysinh Ramrao Chavan v. Dattatray
Gulabrao Phalke & Others [2015 (3) SCC 123], it has been
held by the Hon’ble Supreme Court thus:
“Revisional power of the court under S.397 to 401
of Cr.PC is not to be equated with that of an appeal.
Unless the finding of the court, whose decision is sought
to be revised, is shown to be perverse or untenable in
CRL.REV.PET NO. 1341 OF 2014 6 2025:KER:19097law or is grossly erroneous or glaringly unreasonable or
where the decision is based on no material or where the
material facts are wholly ignored or where the judicial
discretion is exercised arbitrarily or capriciously, the
courts may not interfere with decision in exercise of
their revisional jurisdiction”.
10. From the judgments referred to above, it is clear that a
Court exercising revisional jurisdiction will interfere with orders or
judgments of the courts below only if those orders and judgments
are suffering from incorrectness, illegality or impropriety. Unless
the judgment passed by the learned Magistrate or by the Appellate
Court is perverse or the view taken by the Court is unreasonable
or there is non-consideration of any relevant material, or there is
palpable misreading of records, the revisional Court will be not
justified in interfering with the judgment. The revisional Court
cannot act like an Appellate Court.
11. While going through the impugned judgments, it could
be gathered that the oral evidence adduced by the witnesses
before the trial court was analysed by the trial court as well as the
appellate court and reached a conclusion that the PW1 suffered
physical injury by the act of the accused. At the same time, the
courts below failed in properly appreciating the nature of the injury
CRL.REV.PET NO. 1341 OF 2014 7 2025:KER:19097
caused to PW1. By relying on the evidence PW6, the Doctor, who
had subsequently examined PW1 on the next day of the incident
and issued Ext.P4 medical certificate, the trial court reached to a
conclusion that the injury caused to PW1 will fall under the
category of grievous hurt defined under Section 320 of IPC. But
while going through the evidence of PW6 and Ext.P4 medical
certificate issued by him, it could be gathered that PW1 has
suffered minimal hearing loss of left ear by perforation of left
tympanic membrane. However, PW6 did not depose before the
trial court that this injury is a permanent destruction or impairing
of the hearing capacity of PW1, so as to fall under fifth kind of
grievous hurt enumerated under Section 320 of IPC, as found by
the trial court. In such circumstances, I hold that the injury caused
to PW1 can only be treated as a simple hurt, which will fall under
Section 323 IPC alone. Therefore, the conviction of the accused
under Section 325 IPC is liable to be set aside.
12. PW1 is the driver of a bus and the accused is a person
who announces the trip timings of the bus in the bus stand.
Prosecution has no case that the accused has any criminal
antecedents. While analysing the facts and circumstances of the
case, I am of the view that the substantive imprisonment for a
CRL.REV.PET NO. 1341 OF 2014 8 2025:KER:19097
period of three months imposed by the trial court for the offence
under Section 323 of IPC is on the higher side.
In the result, the revision petition is allowed in part, by
setting aside the conviction and consequent sentence imposed on
the petitioner/accused under Section 325 of IPC and he is
acquitted on that charge. The conviction of the petitioner/accused
of the offence under Section 323 IPC is confirmed and the
sentence imposed on him is modified as imprisonment till the
rising of court and payment of compensation of Rs.10,000/- to
PW1. In default of payment of the compensation, the
petitioner/accused shall undergo a default sentence of simple
imprisonment for a period of fifteen days. The petitioner/ accused
shall appear before the trial court on 10.04.2025, to undergo the
modified sentence hereby imposed.
Sd/-
MURALEE KRISHNA S., JUDGE
DSV/-
