1. The petitioners are the accused in C.C.No.448 of 2000 on the files of the Additional Chief Judicial Magistrate Court, Thalassery. They were convicted and sentenced to undergo Rigorous Imprisonment for three years and fine Rs.10,000/- with a default clause of Simple Imprisonment for nine months for the commission of offence under Section 326 IPC. They were also convicted and sentenced to Simple Imprisonment for six months and one month respectively for the commission of the offences under Sections 323 and 341 IPC. In the appeal preferred before the Sessions Court, Thalassery, the learned Additional Sessions Judge found that the offence under Section 326 IPC is not made out in the facts and circumstances of the case. Accordingly, the learned Additional Sessions Judge altered the conviction under Section 326 IPC to one under Section 324 IPC, and awarded a sentence of Rigorous Imprisonment for two years. The conviction and sentence awarded by the Trial Court for the other offences were upheld by the Appellate Court. Aggrieved by the aforesaid verdict of the Appellate Court, the petitioners are here before this Court with this revision.

2. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the State of Kerala.

3. The prosecution case is that on 25.07.2000, at about 9.30 am, the petitioners, in furtherance of their common intention, wrongfully restrained PW2 and inflicted voluntary hurt and grievous hurt upon him by beating with hands and hitting with an iron rod. The Trial Court relied on the evidence tendered by the prosecution through the oral testimonies of PWs 1 to 5, and the documents marked as Exts.P1 to P4. The evidence adduced from the part of the accused through the oral testimonies of DW1 and DW2 were also taken into consideration by the Trial Court. Among the five witnesses examined from the part of the prosecution, PW2, the injured, is the only person who had testified about the criminal act attributed against the petitioners. Though there had been discrepancies in the evidence tendered by PW2 with regard to the nature of the injuries sustained by him, the Trial Court found that his testimony was reliable and accordingly resorted to the conviction of the accused.

4. The Appellate Court found that the Trial Court went wrong in convicting the petitioners for the commission of the offence under Section 326 IPC in the absence of X-ray report and the necessary medical evidence to show that PW2 sustained fracture as alleged by the prosecution. It is further observed by the Appellate Court in the impugned judgment that while the medical evidence adduced disclosed compound fracture of left lower limp, PW2 had no such case, since he stated that there was only peeling of skin on the left leg, and that fracture was actually sustained on his right leg. It is by taking note of all the above anomalies that the Appellate Court found that the evidence adduced by the prosecution were not sufficient to establish the offence under Section 326 IPC. However, the Appellate Court placed reliance upon the sole oral evidence adduced by PW2 and found that the petitioners were guilty of commission of the offence under Section 324 IPC. However, it is pertinent to note that the only material objects brought on record were MO1 series, which were the wearing apparels of the injured. The alleged iron rod used by the petitioners for inflicting voluntary hurt upon PW2 are not seen produced before the Trial Court and marked as a material object. There is also no convincing explanation offered by the prosecution for the failure to adduce evidence in that regard. Nothing has been stated in the evidence adduced by the prosecution to show that the accused had disposed of the weapon of offence in such a manner that it was not possible to recover the same. Taking into account the above shortcoming in the evidence adduced, I am of the view that the conviction and sentence awarded by the court below upon the petitioners for the commission of offence under Section 324 IPC, are also not sustainable. In the absence of convincing evidence to show that the accused had used a dangerous weapon or an object, which if used as a weapon of offence, is capable of causing death, there cannot be a conviction for the commission of the offence under Section 324 IPC. That being so, it is highly necessary to modify the conviction and sentence awarded by the courts below by confining the offences to those under Sections 341 and 323 IPC alone.

5. Having regard to the nature of the offence found to have been committed by the petitioners, I am of the view that the sentence of imprisonment awarded has to be limited to imprisonment till the rising of court. However, the petitioners are bound to pay an exemplary compensation to PW2 / injured or his legal heirs for the hardships and sufferings caused to him.

                  In the result, the revision stands allowed in part as follows:-

                  (i) The conviction of the petitioners by the courts below stands modified to one under Sections 341 and 323 IPC read with Section 34 IPC.

                  (ii) In supersession of the sentence awarded by the courts below, the petitioners are sentenced to imprisonment till the rising of court with a direction to pay compensation of Rs.10,000/- (Rupees ten thousand only) each under Section 357(3) Cr.P.C. to PW2 or his legal heirs for the commission of offence under Section 323 IPC.

                  (iii) No separate punishment is awarded for the commission of the offence under Section 341 IPC found against the petitioners.

                  (iv) In the event of failure of the petitioners to pay the compensation of Rs.10,000/- each, the defaulters will undergo Simple Imprisonment for a period of six months.

                  (v) The Trial Court shall take appropriate steps for disbursing the compensation amount to PW2 or his legal heirs as soon as it is deposited in compliance with this order.

                  (vi) The petitioners shall surrender before the Trial Court within a period of one month from today to undergo the modified sentence awarded by this order.

                  The Registry shall transmit the case records along with a copy of this order to the Trial Court for ensuring compliance.