IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.Rev.Pet.No. 601 of 2002() ----------------------------- CRA.173/1995 of SESSIONS COURT, MANJERI CC.318/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT PARAPPANANGADI .................... REVN. PETITIONER(S): APPELLANTS 1,3 5 TO 8/ACCUSED 1,3 5 TO 8 ------------------------------------------------------------- 1. RAJESH, S/O. MADHAVAN,VALLIKUNNU NORTH 2. DINAKARAN, S/O. GANGADHARAN, VALLIKUNNU NORTH. 3. VELAYUDHAN KUTTY, S/O. ARAMUGHAN, VALLIKUNNU NORTH. 4. BINESH S/O. RAMAN,VALLIKUNNU NORTH. 5. SHAJI, S/O. GOPALAN, VALLIKUNNU, NORTH. 6. MURALIDHARAN S/O. ACHUTHAN, VALLIKUNNU NORTH. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): RESPONDENT ------------------------- THE STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, PARAPPANANGADI. PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN CRL.M.P.NO.3793/2002 IN CRL.R.P.NO.601/2002 DISMISSED 3-11-2009 Sd/-, P.Q.BARKATH ALI, JUDGE P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.601 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2009 ORDER The revision petitioners are accused 1, 3 and 5 to 8 in Calender Case No.318/1992 of the Judicial First Class Magistrate Court, Parappanangadi and appellants in Crl.Appeal No.173/1995 of Sessions Court, Manjeri. They along with accused 4 and 9 were convicted under Sections 143, 147, 427, 447, 341, 323 read with Section 149 of IPC and sentenced to pay a fine of Rs. 250/- each for the offences punishable under Sections 143, 147, 447, 341 each and Rs. 500/- each for the offences punishable under Sections 427, 323 of IPC each, in default, to undergo simple imprisonment for 7 days under each count. The second accused was convicted under the same sections, but was released under Section 3 of the Probation of Offenders Act as he was a minor at the time of incident. Out of the fine amount, if realised, Rs. 2000/- was ordered to be paid as compensation to PW1, the injured. The lower appellate court confirmed the conviction and sentence of the accused persons. Accused 1, 3 and 5 to 8 have now come up in Crl.R.P.No.601/2002 Page numbers revision challenging their conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that, on May 30, 1992 at about 5 p.m. at Vallikkunnu, the accused persons formed themselves into an unlawful assembly and in prosecution of their common object committed rioting and trespassed into the property of PW1 comprised in RS.No.71/1 and committed mischief by damaging a portion of its eastern compound wall causing a loss of Rs. 2000/- to him and when PW1 attempted to obstruct them, accused 1 and 2 wrongfully restrained him and other accused voluntarily caused hurt on him by beating with hands and kicking and that thereby committed the offences punishable under Sections 143, 147, 427,447, 341, 323 read with Sections 149 of IPC. 3. When the accused persons appeared before the trial court, they pleaded not guilty to a charge under Sections 143,147, 427,447, 341, 323 read with Section 149 of IPC. PWs 1 to 8 were examined and Exts.P1 to P7 and MO1 series 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 incident. No defence Crl.R.P.No.601/2002 Page numbers evidence was adduced. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioners guilty of the offences punishable 143,147, 427, 447, 341, 323 read with Section 149 of IPC, convicted them thereunder and sentenced them as aforesaid. On appeal, the lower appellate court confirmed their conviction and sentence. Now accused 1, 3 and 5 to 8 have come up in revision challenging their conviction and sentence. 5. Heard the learned counsel for revision petitioners and the learned Public Prosecutor. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Sections 143,147, 427,447, 341, 323 read with Section 149 of IPC by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Crl.R.P.No.601/2002 Page numbers Point No.1 7. PWs 1 to 8 were examined and Exts.P1 to P7 and MO 1 series were marked on the side of the prosecution before the trial court. PW1 is the defacto complainant. Ext.P1 is the FI statement given by him. Ext.P2 is his title deed. Ext.P3 is basic tax receipt. PWs 4 and 5 are attestors to Ext.P5 scene mahazar. PW6 is the village officer who inspected the property and issued the certificate Ext.P6. PW7 is the Head Constable who registered Ext.P7 FIR . PW8 is the investigating officer. I have gone through the evidence of PWs 1 and 2. Nothing was brought out during their cross examination to discredit their evidence. 8. Counsel for the revision petitioner sought to discredit the evidence of PWs 1 and 2 pointing out some discrepancies in their evidence. But I feel that those discrepancies are very minor and did not affect their credibility. 9. Counsel for the revision petitioner arguing the revision submitted that when cross examined PWs 1 and 2 were unable to say the overtacts done by each of the accused and the sequence of events Crl.R.P.No.601/2002 Page numbers and the position of each accused at the time of the incident and that therefore their evidence should not be believed. I am unable to agree. PW1 is aged 59 . PW1 was attacked by the accused persons who are 9 in number . Under such circumstances one may not be able to say the overtacts done by each of the accused. Therefore on that account alone, the evidence of PWs 1 and 2 cannot be discarded. Another criticism levelled against the evidence of PW1 was that he sustained no injuries in the incident. But PW2 the doctor who examined PW1 has reported that PW1 has complaints of pain over the body. The case of PW1 is that he was fisted and kicked by the accused persons. In such a case, there may not be any external injuries. The alleged incident was at about 5 pm and he was examined by the doctor at about 8.20 pm. He has also complained to the doctor that he was beaten up by the accused persons. Therefore merely PW1 did not sustain any external injuries, in my view, his evidence cannot be disbelieved. 10. Counsel for the revision petitioners pointed out that there is civil dispute between the parties in respect of the property in dispute, that PW1 had filed O.S.No.169/1992 before the Munsiff Court, Crl.R.P.No.601/2002 Page numbers Parappanangadi in respect of the same property and that as a counter blast of his failure to obtain injunction from the Munsiff Court, he foisted this false case against the accused persons. No evidence is adduced by the accused to prove the above aspect. Further I have chosen to believe the evidence of PWs 1 and 2 regarding the incident. Therefore the above allegation of the accused appears to be not true. 11. The case of the accused when questioned under Section 313 of Cr.P.C. was that there was an old pathway leading to the house of the first accused along the eastern side of the property of PW1 which his brother attempted to block and when first accused obstructed PW1 and his brother attacked the first accused. No evidence is adduced on the side of the accused to show that it was PW1 and his brother attacked the accused and PW1 and PW2 were testifying falsely against accused persons. On the other hand, the evidence of PWs 1 and 2 clearly show that it was the accused persons who attacked PW1. 12. No other point is argued before me. I have gone through the evidence of PWs 1 and 2. Nothing was brought out during their cross examination to discredit their evidence. Further corresponding Crl.R.P.No.601/2002 Page numbers injury was also found on PW1 as revealed from Ext.P4 wound certificate and the evidence of the doctor PW3. Fort all these reasons, I feel that the trial court as well as the lower appellate court is perfectly justified in believing the evidence of PWs 1 and 2 and coming to the conclusion that the accused persons have committed the offences punishable under Sections 143, 147, 447, 427, 341, 323 read with Section 149 of IPC. That being so, the conviction of the revision petitioners under Sections143,147, 427, 341, 323 read with Section 149 of IPC by the trial court which is confirmed in appeal has to be upheld. 13. As regards the sentence, the trial court imposed only fine on the accused persons. I find no special reasons to reduce the sentence. In the result, confirming the conviction and sentence of the revision petitioners, the revision petition is dismissed. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.601/2002 Page numbers