Non-recovery of the weapon used in an offense is not fatal to the prosecution's case when reliable ocular eyewitness testimony is corroborated by medical evidence of the injuries sustained.

ORDER :

1. This criminal revision petition has been filed under Section 397 and 401 of the Code of Criminal Procedure, challenging the judgment dated 29.08.2005 in Criminal Appeal No.310/1997 on the file of the Additional Sessions Court-II, Thiruvananthapuram, which arose out of C.C. No.381/1995 on the file of the Judicial First Class Magistrate Court-III, Neyyattinkara. The revision petitioners herein are the first and second accused in the above case.

2. The prosecution case is that on 30.03.1995, at about 6:45 p.m., in front of the shop of one Kuttan at Kanjiramkulam Junction, the accused, in furtherance of their common intention, attacked CW1 (PW1). It is alleged that the first accused stabbed CW1 on the head with a knife, while the second accused struck CW1 on the right leg with a cycle chain, causing injuries. When CW2 (PW2) intervened, the third accused stabbed CW2 on the head with a knife, and the second accused hit CW1 on the backside with an idikatta, thereby causing injuries. The third accused also destroyed the front glass of the autorickshaw of CW1 and caused damage of Rs.10,000/-. Thus, the accused are alleged to have committed offences punishable under Sections 324 and 427 r/w 34 of the Indian Penal Code.

3. During the trial, from the side of the prosecution, eight witnesses were examined as PW1 to PW8 and marked Exts.P1 to P5. Finally, the learned Magistrate found all the accused guilty of the offences punishable under Sections 324, 427 r/w 34 of the IPC and were convicted. The accused were sentenced to undergo simple imprisonment for a period of one year for the offence under Section 324 and to pay a fine of Rs.1,000/- each for the offence punishable under Section 427 of the IPC. In default of payment of fine, the accused were ordered to undergo simple imprisonment for a further period of three months. The fine amount, if realised, half of the same was ordered to be given PW1 and PW2 as compensation under Section 357(1)(b) of Cr.P.C.

4. Aggrieved by the said judgment, the accused preferred Criminal Appeal No. 310/1997 before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, who heard the appeal, allowed the same in part and modified the sentence imposed on the accused. The sentence imposed for the offence punishable under Section 324 IPC was reduced to simple imprisonment for three months. The fine amount awarded under Section 427 IPC was not interfered. Aggrieved thereby, the accused have preferred the present revision petition.

5. Heard Sri.R. Bindhu Sasthamangalam, learned counsel for the petitioner, and Sri. G. Sudheer, learned Public Prosecutor. The records were also perused.

6. The learned counsel for the revision petitioners submitted that the trial court as well as the appellate court erred in appreciating the evidence in proper perspective and recorded a conviction without properly appreciating the facts and evidence brought out in this case. According to the learned counsel, there was no proper identification of the accused by PW1 and PW2, the injured witness, and therefore the conviction is liable to be set aside on that ground alone. It was further submitted that the trial court erred in convicting the accused under Section 324 of the IPC, overlooking the fact that the alleged weapon of offence was neither recovered during the investigation nor produced before the court. According to the learned counsel, in the absence of convincing evidence establishing the use of a dangerous weapon or means for causing the injuries, the conviction under cannot be sustained.

7. In reply, the learned Public Prosecutor submitted that the evidence on record clearly establishes that all the assailants were previously known to the injured witness and, therefore, there is no merit in the challenge regarding the identification of the accused. It was further contended that the testimony of PW1 and PW