IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRL.REV.PET.NO. 2341 OF 2009() -------------------------------------------- CRA.805/2004 OF II ADDL.SESSIONS COURT, ERNAKULAM CC.267/2000 OF JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- ZAKKIR, S/O.ALI,OTTAKANDATHIL VEEDU, MAKKANAYI KARA, PARAVUR, ERNAKULAM,. BY ADV. SRI.LIJU. M.P SRI.G.PADMARAJ RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------------------------------------ THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2341 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2009 O R D E R -------------- Against concurrent finding that petitioner voluntarily caused hurt to P.W.1, then studying in the 6th standard and aged around 12- 13 years and consequent conviction and sentence for offence punishable under Section 323 of the Indian Penal Code (for short, “the IPC), petitioner has come up in revision. Case is that due to enmity on account of P.W.1 taking up a quarrel with P.W.6, a nephew of petitioner in the school compound petitioner, on 25.11.1999 at about 9.30 a.m. voluntarily caused hurt to P.W1. As per evidence of P.W.1 and his brother, P.W.2 who was accompanying him on the relevant day and time while they were going to the school petitioner came against them riding a scooter, stopped in front of them and assaulted P.W.1. P.W.1 fell down. He was taken to the School and then to the nearby hospital for treatment. P.W.3, another student also gave evidence regarding the incident. P.W.4, Headmaster stated that on getting telephonic information about the incident he came to the school and found P.W.1 with difficulty to breath. P.W.1 was sent to the hospital. P.W.8, Medical Officer proved Ext.P5, discharge certificate of P.W.1. As per that evidence P.W.1 was admitted in the CRL. R.P. No.2341 of 2009 -: 2 :- hospital on 25.11.1999 as referred from Government Hospital, Paravoor. P.W.1 had swelling on the right elbow and difficulty to swallow. He was discharged on 7.12.1999. Courts below on evidence found petitioner guilty, convicted and sentenced as aforesaid. It is contended that conviction of petitioner is not legal and proper. 2. That P.Ws.1 to 3 were minors at the relevant time is not sufficient to discard their evidence. It is true that P.W.6, nephew of petitioner denied that there was any such incident between him and P.W.1 as set up by the prosecution. But P.Ws.1 to 3 have given evidence regarding that scuffle as well. There is evidence of P.Ws.1 to 3 regarding the incident. That P.W.4 found petitioner in the School with difficulty to breath, and evidence of P.W.8 and Ext.P5 give corroboration for the evidence of P.Ws.1 to 3. I have gone through the judgments under challenge and find no reason to interfere with conviction of petitioner. 3. What remained for consideration is whether sentence awarded is excessive. Learned magistrate sentenced petitioner to undergo simple imprisonment for 8 months, payment of fine and in default to undergo simple imprisonment for one month. Appellate court did not interfere with the sentence. Learned counsel requested that leniency may be shown to the petitioner in the matter of CRL. R.P. No.2341 of 2009 -: 3 :- sentence. He stated that petitioner was aged 23 years at the relevant time and is awaiting a job. It is also submitted by learned counsel that petitioner is not involved in any other case and he has no criminal antecedents or background. 4. Assuming so, fact remained that he assaulted a sixth standard student aged 12-13 years who was no match for him in any respect. It is seen that P.W.1 was severely assaulted as is evident from the fact that he had to undergo inpatient treatment from 25.11.1999 to 7.12.1999. At the same time I am inclined to take into account the submission made by learned counsel. Considering these aspects I do not find it necessary at this stage to send petitioner behind bars. I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. 5. But plight of the boy who suffered at the hands of petitioner cannot be forgotten. He has to be compensated suitably. He has undergone inpatient treatment for quite sometime. He had to suffer pain and mental agony due to the act of petitioner. Considering these aspects I direct petitioner to pay Rs.15,000/- as compensation to P.W.1 and in default of payment to undergo simple imprisonment for three months. The amount directed to be paid shall be paid to P.W.1 if he has attained majority and if not to his natural guardian on his CRL. R.P. No.2341 of 2009 -: 4 :- behalf. Resultantly, this revision is allowed in part to the following extent: (i) Sentence of imprisonment awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court for payment to P.W.1 or to his natural guardian as the case may be Rs.15,000/- (Rupees Fifteen thousand only) by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 30.12.2009 failing which petitioner shall undergo simple imprisonment for three months. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv