The court held that the conviction under Section 326 of IPC based on legally inadmissible evidence was a gross illegality.

ORDER :

This revision has been directed against the judgment dated 26.10.2010 in Crl.A.No.85/2008 on the files of the Additional Sessions Court (Adhoc) I, Kasaragod (for short “the appellate court”) confirming the judgment in C.C.No.381/1996 dated 15/2/2008 on the files of the Judicial First Class Magistrate-I, Kasaragod (for short “the trial court”).

2. The accused (three in numbers) at the courts below are the revision petitioners. They faced trial for offences punishable under Sections 341 and 326 read with Section 34 of IPC.

3. The prosecution case in short is that, on 8.3.1995 at 5 pm, the accused Nos. 1 to 3 in furtherance of their common intention wrongfully restrained PW1 at a place called Chala in Kasaba town and inflicted grievous injuries by beating with iron pipe and thus committed the offence. According to the prosecution, during the incident, PW1 lost 4 teeth from the upper jaw and 7 teeth from the lower jaw and further sustained fracture at maxilla. The accused appeared at the court below. After hearing both sides, charge was framed against the accused under Sections 341 and 326 read with Section 34 of IPC. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PW1 to PW11 were examined and Exts.P1 to P9 were marked. MO1 to MO3 were identified. No defence evidence was adduced. The trial court on appreciation of evidence found the accused guilty under Sections 341 and 326 read with Section 34 of IPC and they were convicted for the said offences. The accused were sentenced to undergo simple imprisonment for one month each under Section 341 read with Section 34 of the IPC and rigorous imprisonment for three years and to pay fine of Rs.10,000/-each, in default to suffer simple imprisonment for 1 year each, under Section 326 of IPC. The appellate court, in appeal, confirmed the conviction and sentence and dismissed the appeal. The conviction and sentence passed by both courts below are under challenge in this revision petition.

4. It is well settled that the revisional jurisdiction under Sections 397 and 401 of Cr.P.C. was to confer power upon superior courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence.

5. The court below relied on the evidence of PW1 to PW3 and PW5 to prove the incident and to fix the culpability on the accused. PW1 is the injured. PW2 is a relative of PW1 and an occurrence witness. PW3 is the wife of PW1. PW5 is another occurrence witness. PW1 to PW3 and PW5 gave consistent and credible version of the crime. Their evidence inspires confidence. Even though they were cross examined at length, nothing tangible has been extracted from their evidence to create any shadow of doubt that they are not truthful witnesses. No vital contradictions or material omissions were brought out in their evidence. They clearly deposed about the manner in which the accused attacked the victim, the nature of the weapon used by them and the part of the body of injured whereupon the injuries were inflicted by the accused. They have also identified MO1 iron pipe as the weapon used for the commission of offence. Therefore, both courts below rightly relied on their evidence to prove the incident. Their evidence would clearly establish that the accused wrongfully restrained PW1 and inflicted injuries on his body with MO1. I find no reason to upset the said finding of fact under the exercise of the jurisdiction vested with this Court under Section 397 and 401 of Cr.P.C.

6. The learned counsel for the revision petitioner Sri. Shaijan C. George vehemently argued that the offence under Section 326 of IPC would not be attracted on the evide