IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.Rev.Pet.No. 952 of 2002() ----------------------------- CRA.109/1996 of SESSIONS COURT, MANJERI CC.184/1995 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- 1. SHAMSUDHEEN S/O.MAMEDMOYIN, CHERUPADIKKAL, KODIKUTHIPARAMBU, MALAPPURAM DISTRICT 2. KAZHUMGUMTHODAN ALI S/O.MUHAMMED, KODIKUTHIPARAMBU, MALAPPURAM DISTRICT BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): RESPONDENT/STATE ------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.952 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of November, 2009 ORDER The revision petitioners are accused 1 and 2 in C.C.No.184/1995 of Judicial First Class Magistrate Court, Malappuram and appellant in Crl.Appeal No.109/1996 before the Sessions Court, Manjeri. The accused persons were convicted under Section 341, 323 and 324 read with Section 34 of IPC. They were sentenced to pay a fine of Rs.250/- each , in default, to undergo simple imprisonment for one month each under Section 341 of IPC and to pay a fine of Rs. 500/- each , in default, to undergo simple imprisonment for two months under Section 323 of IPC. They were also sentenced to undergo simple imprisonment for three months each and to pay a fine of Rs. 1,000/- each, in default, to undergo simple imprisonment for one month each under Section 324 of IPC. Out of the fine amount, Rs. 1500/- was ordered to be paid to PW1, the injured as compensation as provided under Section 357(1) Cr.P.C. The lower appellate court confirmed the sentence imposed by the trial court under Section 341 and 323 of IPC Crl.R.P.No.952/2002 Page numbers which is a fine of Rs. 250/- and Rs. 500/- respectively, in default, to under simple imprisonment for two months each. The sentence imposed under Section 324 of IPC is modified to a fine of Rs. 1500/- by the lower appellate court. The direction of the trial court to give Rs. 1500/- out of the fine amount as compensation to PW1 , the injured, is also confirmed. The accused 1 and 2 have come up in revision challenging their conviction and sentence. As the third accused was absconding, case against him was split up . 2. The case of the prosecution as shaped in evidence before the trial court was that on December 5, 1994 at about 10.30 pm. at Angadipparambu in Antiyur amsom, accused 1 to 3 came in an auto rickshaw driven by one Siddique and the second accused wrongfully restrained PW1 by closing his mouth and first accused voluntarily caused hurt on him by beating with hand and stick and third accused beat him with stick inflicting him the injuries described in Ext.P2 wound certificate. 3. On appearance before the trial court, accused 1 to 3 pleaded not guilty to a charge under Sections 341, 323 and 324 read with Crl.R.P.No.952/2002 Page numbers Section 34 of IPC. PWs 1 to 8 were examined and Exts.P1 to P4 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, the accused persons denied the entire transaction. When the case was posted for questioning under Section 313 of Cr.P.C., third accused absconded. Therefore, case against him was split up. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the revision petitioner guilty of the offences punishable under Sections 341, 323 and 324 read with Section 34 of IPC, convicted them thereunder and sentenced them as aforesaid. On appeal, their conviction and sentence under Sections 341 and 323 of IPC are confirmed, but sentence imposed under Section 324 of IPC was modified as stated above. Accused 1 and 2 have now come up in revision challenging their conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Sections 341, 323 and 324 read with Section 34 of IPC by the trial court which is confirmed in appeal can be sustained ? Crl.R.P.No.952/2002 Page numbers 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. PWs 1 to 8 were examined and Exts.P1 to P4 were marked on the side of the prosecution before the trial court. PW1 is the defacto complainant and injured. He testified in terms of the prosecution case. Nothing was brought out during his cross examination to discredit his evidence. His evidence is supported by PWs 2 and 3. I have gone through their evidence. I find no reason to disbelieve their evidence. Further both the courts below have accepted their evidence regarding the incident. PW4 is the Doctor who examined PW1 and issued the wound certificate Ext.P2. He found corresponding injuries on the body of the accused. PWs 1 to 3 gave a consistent version regarding the incident. Therefore, both the courts below are justified in believing their evidence regarding the incident. PWs 5 and 6 are the attestors to scene mahazer Ext.P3. PW7, the A.S.I. and PW8, the Sub Inspector are the investigating officers in this case. 7. The counsel for the revision petitioners argued that PW2 Crl.R.P.No.952/2002 Page numbers and PW3 are close relatives of PW1 and therefore they are interested witnesses and hence their evidence cannot be relied on. I am not inclined to agree. The Apex Court has held in Lala Ram v. State of Rajasthan (2007(10)SCC 225) that there is no proposition in law that relatives are to be treated as untruthful witnesses and that when a plea of partiality is raised, reason has to be shown to show that witness had reason to shield actual culprit and falsely implicate the accused persons. No evidence has been addressed by the accused person in this regard. Therefore, merely because PW2 and 3 are related to PW1, their evidence cannot be discarded. They have absolutely no enmity towards accused persons. Further they gave a consistent version regarding the evidence. Defence counsel was not able to shake their evidence in cross examination. They have clearly identified accused 1 to 3 in court. That being so, the learned Magistrate was right in relying on the evidence regarding the incident. 8. For all these reasons, I am inclined to confirm the finding of the trial court which is confirmed in appeal that the accused persons have committed the offences punishable under Section 341, 323 and Crl.R.P.No.952/2002 Page numbers 324 of IPC read with Section 34 of IPC. 9. As regards, the sentence, the lower appellate court confirmed the sentence imposed by the trial court under Section 341, 323 of IPC which is a fine of Rs. 250/- and Rs. 500/- respectively, in default, to under simple imprisonment for two months each. The sentence imposed under Section 324 of IPC is modified to fine of Rs. 1500/- by the lower appellate court. I find no reason to reduce the sentence. The direction of the trial court to give Rs. 1500/- out of the fine amount as compensation to PW1 , the injured, is also confirmed. In the result, upholding the conviction and sentence of the revision petitioner by the trial court under Section 341, 323 and 324 read with Section 34 of IPC which is confirmed in appeal, the Criminal Revision Petition is dismissed. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.952/2002 Page numbers