IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST APRIL 2009 / 1ST VAISAKHA 1931 Crl.Rev.Pet.No. 1358 of 2009() ------------------------------ CRA.282/2004 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM CC.163/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVN. PETITIONER(S): REVISION PETITIONERSAPPELLANTS ACCUSED 1 TO 3 -------------------------- 1. SHABU,S/O.SUKUMARAN, THEENDAKKADU PUTHEN VEEDU, CHAIKOTTUKONAM, KULATHUMMAL DESOM, NEYYATTINKARA. 2. SURENDRAN @ SURESH, S/O. KRISHNAN, CHAMMANTHATTUPUTHAN VEEDU, CHAIKKOTTUKONAM, KULATHUMMALDESOM NEYYATTINKARA. 3. JAYAN, S/O.SUSEELAN, MANAYATHALA PUTHEN VEEDU,PARAKLOTTAKONAM, KULATHUMMAL DESOM, NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENT(S): COMPLAINANT -------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS.P. JOSEPH, J. ------------------------------- Crl.R.P.No.1358 of 2009 ------------------------------- Dated this the 21st day of April, 2009 O R D E R Petitioners are accused in C.C.No.163 of 1999 of Judicial First Class Magistrate Court-I, Neyyattinkara. They faced the trial for offences punishable under Sections 341, 323 and 324 read with Section 34 of the Penal Code (for short 'the Code') on the allegation that on 13.12.1998 at about 7.30 p.m. while PW.1, the de facto complainant was sitting in the teashop of one Madanan, they called him out of the teashop, petitioner No.3 hit him with a stick and in furtherance of their common intention, petitioners 1 and 2 wrongfully restrained him. Learned Magistrate however found the petitioners guilty of the offence punishable under Section 323 alone and imposed sentence of imprisonment for six months each. Petitioners took up the matter in appeal. The appellate court confirmed the conviction and sentence. Hence, this revision. CRL.R.P.1358 of 2009 2 2. At the time of hearing, learned counsel for the petitioners submitted that he is not seriously challenging the finding regarding the commission of offence under Section 323 of the Code and that the sentence imposed by the learned Magistrate as confirmed by the appellate court is excessive. Learned counsel also submitted that petitioners are not involved in any other case and hence leniency may be shown to them in the matter of sentence. 3. I have gone through the judgments under challenge. Though the prosecution had a case that petitioners had wrongfully restrained PW.1 and voluntarily caused hurt to him with dangerous weapon, learned Magistrate found that since the stick is not available before the court, it is not possible to find that the stick used by the petitioners is a dangerous weapon. Learned Magistrate also found in the light of Exts.D1 and D2 as well that the case of the prosecution that petitioners wrongfully restrained PW.1 cannot be accepted. 4. So far as the conviction of petitioners under Section 323 of the Code is concerned, there is the evidence of CRL.R.P.1358 of 2009 3 PW.1, the defacto complainant supported by Pws.2 and 3, the witnesses who claimed to have seen the incident. PW.4 is the medical officer who examined PW.1 on 13.12.1998 and issued Ext.P2 certificate noting the injuries suffered by PW.1. PW.5 conducted investigation and submitted charge. 5. It is seen that learned Magistrate has relied on the evidence of Pws.1 to 3 corroborated by that of PW.4 to hold that petitioners voluntarily caused hurt to PW.1as alleged. That finding rest on a proper appreciation of the evidence. 6. On going through the judgments under challenge, I do not find any illegality, irregularity or impropriety in the finding entered by the learned Magistrate as to the commission of offence under Section 323 of the Code as confirmed by the First Appellate Court. Therefore, no interference is required as to the finding regarding the guilt under Section 323 of the Code. 7. As regards the sentence part is concerned, it is not shown that petitioners are involved in any other case so far. CRL.R.P.1358 of 2009 4 There is no reason to think that the incident was a pre-meditated act. In these circumstances, I am inclined to think that sentence of imprisonment till the rising of the court and compensation to the victim is sufficient. In the result, revision is allowed in part to the extent that the sentence imposed on petitioners is modified as simple imprisonment till the rising of the court and a compensation of Rs.4500/= (Rupees Four Thousand Five Hundred only) (payable by the petitioners equally) to PW.1. Petitioners shall deposit the compensation payable by them in the trial court within two months from this day failing which they shall undergo imprisonment for one month each. Petitioners shall surrender in the trial court on 22.6.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE. nj.