IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3370 of 2008() ------------------------------ CRA.8/1994 of I ADDL. SESSIONS COURT, KOLLAM SC.169/1991 of ASSISTANT SESSIONS COURT, KOTTARAKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------- SAHADEVAN, S/O.GOVINDAN, VILAYIL VEEDU, PIDAVOOR MURI, PIDAVOOR VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT/RESPONDENT/ STATE: --------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3370 OF 2008 ------------------------------------------ Dated this the 30th day of October, 2008 O R D E R Petitioner is the first accused in crime 199 of 1988. As petitioner was absconding, the case as against the other eight accused were committed to Sessions Court, Kollam by Judicial First Class Magistrate, Punalur in C.P.39 of 1988. They were tried by Assistant Sessions Court, Kottarakkara in S.C.51 of 1989. Prosecution case was that all the accused formed themselves into an unlawful assembly with the common object of inflicting injuries to PWs 1to 5 and to cause the death of PW2 and in furtherance of their common object on 13.9.1989 at about 7.45 p.m. armed with deadly weapons like chopper, dagger and iron rod, attacked PWs 1 to 5 and inflicted injuries on them and thereby committed offences under sections 143, 147, 148, 324, 326 and 307 read with section 149 of Indian Penal Code. As per Ext.D1 judgment dated 10.7.1992, learned Assistant Sessions Judge found accused 5, 8 and 9 not guilty of the offences charged and they were acquitted. Third accused was found to have inflicted the injury sufficient to cause death with the CRRP3370/08 2 intention to cause death and thereby committed offence under section 307 of IPC. It was found that there was common intention for accused 2, 3, 4, 6 and 7 to inflict injuries on PWs 1 to 5 and accused 2, 4, 6 and 7 inflicted injuries on PWs 1 and 3 to 5. Therefore accused 2, 3, 4, 6 and 7 were convicted for the offences under section 307 and 324 read with section 34 of IPC. The said accused challenged the conviction and sentence in Crl.Appeal 41 of1992 before Sessions Court, Kollam. Learned Sessions Judge on reappreciation of evidence found that ingredients necessary to attract section 307 of IPC are not proved as against third accused. But finding that the injury inflicted on PW2 comes within the ambit of clause 8 of section 320 of IPC, it was found that he committed an offence under section 326 of IPC. It was also found that the other accused inflicted injuries on PWs 1, 3, 4 and 5 and therefore they committed the offence under section 324 of IPC. Confirming the finding that injuries were inflicted in furtherance of their common intention, it was found that the appellants therein namely accused 2, 4, 6 and 7 are liable for conviction for the offences under section 326 and 324 read with section 34 of Indian Penal Code. They challenged the conviction and sentence CRRP3370/08 3 before this Court in Crl.Revision Petition 832/1998. As per order dated 4.4.2007 this Court confirmed the conviction but modified the sentence. 2. Petitioner was arrested and his case was committed to the Sessions Court as per order in C.P.30 of 1991. The case was made over to Assistant Sessions Court, Kottarakkara. Petitioner was tried in S.C.169 of 1991. Petitioner pleaded not guilty. Prosecution examined PWs 1 to 14 and marked Exts.P1 to P20. MOs 1 to 3 were also marked. On the side of defence Exts.D1 to D8 were marked. Though petitioner was called upon to adduce evidence, he did not adduce evidence. Learned Assistant Sessions Judge thereafter found the petitioner guilty for the offences under sections 307 and 324 read with section 34 IPC finding that petitioner inflicted injuries on PWs 1 and 2 and he had a common intention with the other accused and therefore he is liable for conviction for the offence committed by the other accused also in furtherance of the common intention. He was convicted and sentenced to rigorous imprisonment for three years for the offence under section 307 and rigorous imprisonment for six months for the offence under section 324 read with section 34 of Indian Penal Code. Set off under section CRRP3370/08 4 428 was allowed. Petitioner challenged the conviction and sentence before Sessions Court, Kollam in Crl. Appeal 8 of 1994. Learned Sessions Judge on reappreciatoin of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 3. The records of Assistant Sessions Court were called for and learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. Learned counsel appearing for petitioner pointed out that petitioner was convicted for the offence under section 307 based only on the conviction in SC 51 of 1989 for the reason that the third accused committed the offence under section 307 of IPC and petitioner had common intention with the other accused and therefore he is liable for the conviction for the offence under section 307 of IPC also. It was pointed out that though Assistant Sessions Judge convicted accused 2, 3, 4, 6 and 7 for offence under section 307, that was modified to one under Section 326 IPC by Sessions Court and that conviction was confirmed by this Court in Crl. Revisoin Petition 832 of 1998. Therefore conviction of the revision petitioner for the offence under section 307 read with section 34 of IPC is not sustainable CRRP3370/08 5 as invoking section 34 of IPC petitioner cannot be convicted for the offence under section 307 IPC for the injury inflicted on PW2 by third accused when it was found in Crl. Appeal 41of 1992 that third accused committed only an offence under section 324 IPC and not 307 IPC. Learned counsel also argued that in the criminal revision petition filed by accused 2, 3, 4, 6 and 7 the sentence was modified and petitioner was arrested on 30.9.2008 and he is now undergoing sentence and in such circumstances the sentence may be modified in accordance with the modification of sentence in Crl. R.P. 832 of 1998. 5. Learned Assistant Sessions Judge and learned Sessions Judge convicted petitioner for the offence under section 307 IPC not for the individual overtact on the part of the petitioner or finding that the injury inflicted on PW2 was an injury attracting the offence under section 307 of Indian Penal Code. On the other hand petitioner was convicted for the offence under section 307 read with section 34 of IPC only for the reason that third accused committed the offence under section 307 IPC and it was in furtherance of common intention with the petitioner. As rightly argued by learned counsel, when the finding of Assistant Sessions Judge was modified by the CRRP3370/08 6 Sessions Judge in Crl. Appeal 41 of 1992 and it was confirmed by this Court in Crl. Revision Petition 832 of 1998, and it is already found that the offence committed by first accused is not the offence under section 307 of IPC but under section 326 of Indian Penal Code, conviction of the petitioner for the offence under section 307 is not sustainable. As the Courts below on appreciation of evidence found that petitioner had a common intention along with accused 2, 3, 4, 6, and 7, he can only be convicted for the offence either individually committed by him or committed by accused 2, 3, 4, 6, and 7 in furtherance of their common intention. There is no finding by learned Assistant Sessions Judge or the learned Sessions Judge that petitioner inflicted an injury on PW2 either with an intention to cause his death or with the knowledge that he is likely to cause death of PW2. The finding of the Courts below is only that the injury inflicted on PW2 by the revision petitioner is an incised wound 6.5 cm x 2.5 cm at the lower third of back of left arm obliquely placed tapering at both ends. This injury will not attract an offence under section 307 of IPC. Therefore conviction of the petitioner for the offence under section 307 of IPC is not sustainable as the offence committed by third accused is only CRRP3370/08 7 under section 326 IPC. The Courts below on appreciation of evidence found that petitioner inflicted injury No.1 shown in Ext.P6 wound certificate on PW2 and injury No.4 shown in Ext.P5 wound certificate on PW1. That injury is an incised wound 6.5 cm x 2.5 cm on the back at the level of 8th thoracic vertibra, 1cm to the left vertically placed downwards tapering at upper end. Courts below on appreciation of evidence found that the injury sustained by PW2 is a grievous hurt as provided under section 320 of IPC and the injuries were inflicted by accused 1, 3, 4, 6 and 7 were in furtherance of their common intention. Therefore conviction of the petitioner for the offence under section 324 read with section 34 of Indian Penal Code is sustainable. As the conviction for the offence under section 307 as against third accused was modified in Crl. Appeal 41 of 1992 by Sessions Court, to one under section 326 of Indian Penal Code, petitioner can only be convicted for the offence under section 326 read with section 34 of IPC. Therefore conviction of the petitioner is modified to offences under section 326 and 324 read with section 34 of IPC. 6. Then the question is what is the sentence to be awarded. It is the third accused who inflicted grievous hurt on CRRP3370/08 8 PW2. The sentence as against third accused was modified by this Court in Crl.R.P. 832 of 1998 to imprisonment till rising of Court and a fine of Rs.20,000/- and in default simple imprisonment for six months. The other accused were also sentenced for the same. In view of the sentence for the offence under section 326 of IPC no separate sentence was awarded for the offence under section 324 of IPC. When third accused, who inflicted the grievous hurt and the other co-accused were sentenced, only thus, petitioner is also to be awarded the same sentence. Revision is allowed in part. Conviction of the petitioner for the offence under section 307 read with section 34 of IPC is set aside. Conviction for the offence under section 324 read with section 34 of IPC is sustained. Petitioner is found guilty and is convicted for the offence under section 326 read with section 34 of Indian Penal Code. Petitioner is sentenced to imprisonment for the period he had already undergone and a fine of Rs.20,000/- and in default simple imprisonment for six months for the offence under section 326 read with section 34 IPC. No separate sentence is awarded for the offence under section 324 IPC in view of the sentence awarded for the offence under CRRP3370/08 9 section 326 IPC. On realisation of fine Rs.5,000/- is to be paid to PW2 and Rs.2,000/- each to PWs 1, 3 and 4 as compensation under section 357(1) of Cr.P.C. If the petitioner is not wanted in any other case, he shall be released immediately. M. SASIDHARAN NAMBIAR, JUDGE Okb/-