IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Crl.Rev.Pet.No. 119 of 2005(D) ------------------------------ CRA.306/2000 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.237/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHENGANNUR .................... REVN. PETITIONERS: ACCUSED NOS.1 TO 3 --------------------------------------- 1. T.E.THOMAS 44/1745, PYNUMMOOTTIL VEEDU, ASHOKA ROAD, KALOOR -17, (FROM GHALEELAYIL VEEDU, THAZHAKKARA VILLAGE) 2. GEORGEKUTTY T.E., THARUVATHU HOUSE, KADAVANTHRA, ERNAKULAM. 3. THARAKAN (CHERIYAN) CHERUTHOTTATHYIL VEEDU, THONAKKADU, PULIYOOR, CHENGANNUR. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.JOSEPH P.ALEX SRI.SHYAM ARAVIND RESPONDENTS: COMPLAINANT & STATE ---------------------------------- 1. SUSAMMA KOSHY, W/O. LATE JOHN, PUTHENTHARAYIL VEEDU, THAZHAKKARA MURI, THAZHAKKARA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.SASIKUMAR FOR R1 SRI.RINNY STEPHEN CHAMAPARAMPIL FOR R1 PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/12/2009, ALONG WITH CRRP NO. 2374 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. --------------------------------------------------------- Crl.R.P.Nos.119 of 2005 & 2374 of 2009 ---------------------------------------------------------- Dated this the 23rd day of December, 2009 ORDER The revision petitioners are accused in C.C.No.237 of 1997 and C.C.No.236 of 1997 respectively on the file of the Judicial Magistrate of the First Class-II, Chengannur. Both prosecution arose out of the same transaction. Hence, these revision petitions are disposed by a common order. In C.C.No.236 of 1997, there are two accused. The prosecution was initiated on the basis of a final report filed by the Sub Inspector of Police, Mavelikkara in Crime No.11 of 1994 alleging offences under Sections 451 and 427 read with Section 34 I.P.C. The law was put in notion on the basis of a First Information Statement lodged by one John S/o.Yohannan who is now no more. Ext.P2 is the First Information Statement recorded by PW.5, the Sub Inspector of Police, Mavelikkara. Ext.P1 is the First Information Report. In the First Information Statement there were three persons mentioned as accused. After investigation, the charge sheet was laid before the Judicial Magistrate of the First Class, Mavelikkara against two persons after omitting the second Crl.R.P.No.119 of 2005 2 accused in the First Information Report. The learned Magistrate took cognizance and proceeded as C.C.494/94. While so, it was noticed to the defacto complainant that the second accused in the First Information Report was omitted. The defacto complainant, thereupon filed a complaint before the learned magistrate against 3 accused persons as arrayed in the First Information Report alleging the same offence. It was taken to file as C.C.No.353 of 1995. Later, both cases were made over to the Judicial Magistrate of the First Class-II, Chengannur where the cases were re-numbered as C.C.No.236 and 237 of 1997 respectively. The learned magistrate proceeded with the trial simultaneously and by judgment dated 15/11/2000, in both cases, the learned magistrate arrived a conclusion of guilty. Consequently, the accused were convicted in both cases. In C.C.No.237 of 1997, the accused were sentenced to rigorous imprisonment for six months and a fine of Rs.3,000/- under Section 451 I.P.C. and to rigorous imprisonment for three months under Section 427 I.P.C. In the light of the sentence awarded in C.C.No.237 of 1997, no separate sentence was awarded in C.C.No.236 of 1997. Crl.R.P.No.119 of 2005 3 2. Aggrieved by the above conviction and sentence in C.C.No.237 of 1997, Criminal Appeal No.306 of 2000 was filed. Aggrieved by the conviction in C.C.No.236 of 1997, Criminal Appeal No.494 of 2008 was filed. 3. By judgment dated 14/12/2004 Criminal Appeal No.306 of 2000 was dismissed. The other appeal was filed thereafter. In filing that appeal, there was a delay of 2865 days which was sought to be condoned in Criminal M.P.No.1171 of 2008. The learned Additional Sessions Judge, before whom the appeal was filed, dismissed the petition to condone the delay. Consequently, Criminal Appeal No.494 of 2008 was dismissed as barred by limitation. 4. As against the conviction and sentence in C.C.No.237 of 1997 as confirmed in Criminal Appeal No.306 of 2000, Crl.R.P.No.119 of 2005 is filed. As against the order dismissing Criminal Appeal No.494 of 2008 as barred by limitation, Criminal R.P.No.234 of 2009 was filed. Both revision petitions were heard jointly. 5. Pws.1 to 3 examined in C.C.No.236 of 1997 are the witnesses to prove the occurrence. PW.4 is an attestor to Ext.P3 scene mahazar. PW.5 is the Investigating Officer. In C.C.No.237 Crl.R.P.No.119 of 2005 4 of 1997 the wife of the defacto complainant was examined as PW.1. The occurrence witnesses, who were examined as Pws.1 to 3 in C.C.No.236 of 1997, were examined as Pws.2 to 4. PW.5 is the Investigating Officer. Pws.1 and 3 in C.C.No.236 of 1997, who were examined as Pws.2 and 4 in the other case had given evidence to the effect that they had witnessed the 3 accused in C.C.No.237 of 1997 committing mischief on a car bearing registration No.KL-4-1991 kept parked in the porch of the house of the defacto complainant. PW.1 in C.C.No.237/97, the wife of the defacto complainant had deposed that she who was working as a professor at Christian College, Chengannur had been residing along with her husband and the son who was then studying in 10th standard. On 8/3/1994 herself, her husband and the son had gone out after locking the key of the gate at about 9 a.m. and at the time when they left home, the car was parked at the porch and that when she came back at 4.15 p.m. she found the vehicle including the engine were damaged and that the mischief was committed by all the three accused because of the long standing dispute between them. However she had not witnessed the mischief alleged. PW.2 in C.C.No.236 of 1997 who was examined as PW.3 in the other case had denied of Crl.R.P.No.119 of 2005 5 witnessing the mischief. 6. PWs.1 and 3 in C.C.No.236 of 1997 who were examined as PWs.2 and 4 in the other case had deposed that at about 11.30a.m. he had seen the three accused in C.C.No.237 of 1997 committing mischief on a Maruti car kept parked in the car porch of the house of the defacto complainant by beating with iron rod. Ext.P3 Mahazar in C.C.No.236 of 1997, copy of which was marked as Ext.P1 in the other case, would show that damages were sustained to the car as alleged by the prosecution. The mahazar would convincingly establish the mischief to the car. In fact, the damage is not disputed. Only the involvement of the revision petitioners are disputed. Regarding that the prosecution case is supported by the testimony of PW.2 and PW.4 examined in C.C.No.237 of 1997. According to the learned counsel for the revision petitioner, PW.2 is a chance and stock witness and for that reason no credibility can be given to his evidence. As against the PW.4, the allegation is that he is not aware as to what is the bonnet of the car and that he is not aware of the number of the car. In the light of the submission made by the learned counsel for the revision petitioner I had carefully gone through the judgments of the courts below. I was Crl.R.P.No.119 of 2005 6 taken through the evidence of Pws.2 and 4 by the learned counsel for the revision petitioner. In fact the revision petitioners could not succeeded to bring out any material to impeach the veracity of those witnesses. I fail to find any reason to reject the evidence of Pws.2 and 4. It was also argued by the learned counsel for the revision petitioner that according to Pws.2 and 4 the mischief was committed with the help of iron rod and that the tearing of the body of the car would show that some sharp edged weapon might have been used. With due regard to the damages noted, I fail to accept the arguments advanced by the learned counsel. There is no material to come to a conclusion that the damages noted in the vehicle could not be caused with an iron rod. 7. The learned counsel had also argued that in C.C.No.236 of 1997 while Pws.1 and 3 therein were examined there is no mention that the second accused in C.C.No.237 of 1997 was present. Whereas in the other case it was deposed so. On going through the evidence of Pws.1 and 3 there is nothing on record to show that those witnesses had denied the presence of second revision petitioner Crl.R.P.No.119 of 2005. In C.C.No.236 of 1997 only 2 accused were tried and their Crl.R.P.No.119 of 2005 7 presence alone was spoken by the witnesses. It was not even put to the witnesses during cross-examination that second revision petitioner Crl.R.P.no.119 of 2005 was not present at the time of commission of crime. His presence is very well spoken in C.C.No.237 of 1997 where all the three accused were prosecuted. I find that the evidence of Pws.1 and 3 in C.C.No.236 of 1997 (Pws.2 and 4 in the other case) instill confidence. There is no reason to disbelieve them. I find that the courts below had correctly arrived at a conclusion that all the revision petitioners in Crl.R.P.No.119 of 2005 had committed mischief. In the other case also mischief is established. 8. The scene mahazar would show that the car porch was attached to the house of the defacto complainant and it being a place where the car was parked, the entry to the car porch would amount to house trespass as defined in Section 442 I.P.C. So, offence under Section 451 I.P.C. is also established. I find that the conviction under challenge is not liable to be interfered in exercise of the revisional powers. Taking into account that the revision petitioners in R.P.119/05 are aged 73, 60, 74 years respectively and that they are related and neighbours to the defacto complainant, the first accused is Crl.R.P.No.119 of 2005 8 an engineer and that the second accused is a pensioner, I find that the revision petitioners are entitled to a little leniency in sentence, especially taking into account that when the victim and the assailants are related the substantive sentence may not yield any result other than thickening the enemity. I find that a sentence of imprisonment till rising of the court with an order to pay Rs.20,000/- each as compensation to the defacto complainant would meet the ends of justice. 9. In the result, Crl.R.P.No.119 of 2005 is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court and each of them to pay Rs.20,000/- to PW.1 as compensation under Section 357(3) of the Code of Criminal Procedure. In default of payment of compensation, the revision petitioners shall undergo simple imprisonment for four months. Criminal R.P.No.2374 of 2007 is dismissed as devoid of merits. The revision petitioners in Crl.R.P.No.119 of 2005 shall pay the compensation on or before 6/2/2010, on which date they shall surrender before the trial court for execution of the sentence. P.S.GOPINATHAN, JUDGE skj