Conviction under Section 324 cannot stand without evidence of a dangerous weapon, while convictions under Sections 323 and 427 are sustained based on established facts.

O R D E R

This criminal revision petition has been filed challenging the concurrent findings of conviction and sentence in a prosecution under Section s 427 , 323 and 324 r/w Section 34 of IPC .

2. The petitioner was the accused No.1 in C.C.No.224 of 1995 on the files of Judicial First Class Magistrate Court-I, Attingal (for short, 'the trial court'). Altogether, there were three accused. The petitioner alone faced trial.

3. The prosecution case in short is that on 21.11.1994 at 4.45 p.m. at Avanavancherry junction, accused Nos. 1 to 3 entered into bus No.KL-01-D-8383 belonging to PW1 and caused injuries to PWs 2, 3 and CW2 by beating, fisting and kicking them and also by hitting with ticket rack and further caused damage to the bus to the tune of Rs.12,000/- by breaking the front wind screen glass of the bus with an iron lever and thereby committed the offence.

4. Before the trial court, PWs 1 to 7 were examined and Exts.P1 to 8 were marked. Ext.D1 was marked on the side of the defence. After trial, the trial court found the petitioner guilty for the offence under Section s 427 , 323 and 324 r/w Section 34 of IPC and he was convicted for the said offences. He was sentenced to undergo simple imprisonment for six months for the offence under Section 324 r/w of , simple imprisonment for three months for the offence under Section 323 r/w of and simple imprisonment for three months for the offence under Section 427 r/w of . The substantive sentence was ordered to run concurrently. The case as against accused Nos. 2 and 3 was split up and refiled as C.C.No.117 of 1998. The petitioner challenged the conviction and sentence of the trial court before the Sessions Court, Thiruvananthapuram (for short, 'the appellate court') in Crl.Appeal No.134 of 1998. The appellate court dismissed the appeal. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court.

5. Since there was no representation for the revision petitioner continuously, this court appointed Advocate Amrin Fathima as Amicus Curiae to assist the court. I place on record my appreciation for the able assistance rendered by the learned Amicus Curiae Smt.Amrin Fathima.

6. I have heard Smt. Amrin Fathima, the learned Amicus Curiae and Smt.Maya M.N., the learned Public Prosecutor.

7. The learned Amicus Curiae submitted that the conviction was based on the interested testimony of PWs 2 and 3 alone, that too contradictory. The learned Amicus Curiae further submitted that since there is no satisfactory legal evidence to prove that the petitioner or any other accused used a dangerous weapon to assault PWs 2, 3 and CW2, the conviction under Section 324 of IPC cannot be sustained. The learned Amicus Curiae also submitted that the failure to recover the weapon used for the commission of the offence is fatal to the prosecution case. Lastly, the learned Amicus Curiae submitted that the petitioner had already undergone 19 days of imprisonment and hence the substantive sentence may be reduced and confined to the said sentence he had already undergone.

8. On the other hand, the learned Public Prosecutor supported the findings and verdict handed down by the trial court as well as the appellate court and argued that the necessary ingredients of Section s 427 , 323 and 324 r/w Section 34 of IPC had been established and the prosecution had succeeded in proving the case beyond reasonable doubt.

9. The prosecution relied on the evidence of PWs 2, 3 and 5 to prove its case and to fix the culpability on the accused. PW1 is the owner of the bus. He gave E