IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 1417 of 2003() ------------------------------ CRA.435/2001 of ADDL.SESSIONS COURT, KOTTAYAM CC.103/1995 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------------------ MATHEW @ MATHAN, S/O. MATHAI, PEMALA VEEDU, ATHIRAMPUZHA VILLAGE, PADINJARUBHAGAM KARA, KOTTAYAM TALUK. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.BALAKRISHNAN GOPINATH RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.NO.6085/03 IN CRL.R.P.NO.1417/03: CLOSED 27/3/2009 SD/- R. BASANT, JUDGE. //TRUE COPY// P.S. TO JUDGE. R. BASANT, J. ------------------------------------------------- Crl.R.P.No. 1417 of 2003 ------------------------------------------------- Dated this the 27th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.394 read with Sec.34 IPC. There were two accused persons. The petitioner is the 2nd accused. The 1st accused was not available for trial along with the petitioner. He was later apprehended. He pleaded guilty and was accordingly found guilty, convicted and sentenced. 2. The petitioner now faces a sentence of rigorous imprisonment for a period of two years and a fine of Rs.3,000/-. Default sentence is also imposed. The substantive sentence of imprisonment was modified by the appellate Judge. 3. The crux of the challenge against the petitioner is that he along with the 1st accused, in furtherance of their common intention, at about 7.15 p.m. on 20/11/94 near a local reading Crl.R.P.No. 1417 of 2003 -: 2 :- room, threatened the victim - P.W.1 with knives, assaulted him and snatched M.O.1 gold chain which he was wearing at the relevant time. Both the accused allegedly carried knives. Both of them used the same to threaten the victim. The 1st accused snatched the gold chain. The petitioner who shared the common intention facilitated the commission of the crime by attacking the victim. 4. A crime was registered on the same day at 9.30 p.m. the incident having taken place earlier at 7.15 p.m. P.W.1 – the victim, was referred to the Doctor by the police. The Doctor examined him later on the same night. Ext.P2 is the wound certificate issued by the Doctor. Ext.P5 – First Information Report was registered on the basis of Ext.P1. In the F.I.R. both the accused persons are named. The records further reveal that the F.I.R. had reached the court promptly on 21/11/94. Investigation was conducted. Final report was filed. Cognizance was taken. The petitioner denied the offence alleged against him. Thereupon, the prosecution examined P.Ws.1 to 11 and proved Exts.P1 to P10. 5. P.W.1 is the victim and Ext.P1 is the First Information Statement lodged by P.W.1. P.W.2 is the Doctor who examined P.W.1 and issued Ext.P2 wound certificate. P.W.3 is the person Crl.R.P.No. 1417 of 2003 -: 3 :- who ran to the scene of the crime and allegedly witnessed the crime. P.W.4 is also a witness similar to P.W.3. Both of them supported the case of the prosecution. P.W.4 is the attestor to Ext.P3 seizure mahazar under which after the arrest of the 1st accused M.O.1 was seized from his personal possession. P.W.6 is the attestor to Ext.P4 scene mahazar. P.W.5 – Head Constable proved Exts.P1 – First Information Statement and Ext.P5 FIR. P.W.8 another alleged eye witness turned hostile to the prosecution. He supported the prosecution in part. P.W.6 is the attestor to Ext.P6 seizure mahazar under which M.O.2 knife which allegedly was in the possession of the petitioner at the time of the incident was recovered by the police after his arrest on 23/11/94. P.Ws.10 and 11 are the police officials who had roles to play in the investigation of the crime. Exts.P7 and P8 are the search lists. Ext.P9 is a report submitted to the court by the Investigating Officer and Ext.P10 is the mahazar prepared at the time when the gold ornament – M.O.1 was weighed. 6. The accused took up the defence of total denial. The courts below concurrently came to the conclusion that the oral evidence of P.W.1 can safely be accepted and acted upon. They took into consideration the oral evidence of P.Ws.3 and 4 as also the seizure of M.Os.1 and 2 after the arrest of the accused Crl.R.P.No. 1417 of 2003 -: 4 :- persons. In these circumstances, the courts below came to the conclusion that the prosecution has succeeded in proving the offence alleged against the petitioner herein. 7. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned verdict of guilty, conviction and sentence, the learned counsel for the petitioner submits that the petitioner does not, in the facts and circumstances of this case, want to assail the verdict of guilty and conviction. I have gone through the materials in detail. I am satisfied that the courts below were absolutely justified in sailing to the concurrent conclusion that the oral evidence of P.W.1 which is duly supported by the oral evidence of P.Ws.2 and 3 as also the contents of prompt Ext.P1 – First Information Statement and Ext.P2 wound certificate as also the recovery effected of M.Os.1 and 2 from the possession of the 1st and 2nd accused after their arrest on 23/11/94 can be accepted is absolutely justified and the same does not warrant any interference. 8. The learned counsel for the appellant only contends that the sentence imposed is excessive. A lenient view is liable to be taken. The learned counsel points out that the accused has no history of any criminal antecedents. The learned counsel Crl.R.P.No. 1417 of 2003 -: 5 :- more particularly submits that the co-accused who was later arrested and produced had pleaded guilty and a sentence of rigorous imprisonment for a period of three months alone was imposed on him. In these circumstances, the learned counsel contends that imposition of the deterrent substantive sentence of rigorous imprisonment for two years and fine is not justified in the facts and circumstances of this case. 9. I am unable to agree that the sentence imposed is excessive. I do take note the lapse of long period of time and the fact that the revision petitioner herein has no criminal antecedents. I do also take note of the fact that the revision petitioner is now aged above 65 years. I am not, at any rate, persuaded to agree that this is a fit case where deterrent substantive sentence of imprisonment can altogether be avoided. However, I am satisfied that the substantive sentence imprisonment can be modified and reduced taking into account all the relevant circumstances. The sentence of fine can suitably be enhanced. 10. In the result: (a) This revision petition is allowed in part. (b) The verdict of guilty and conviction of the appellant under Sec.394 read with Sec.34 is upheld. Crl.R.P.No. 1417 of 2003 -: 6 :- (c) But the sentence imposed on the petitioner is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-. In default of payment of fine, he shall undergo rigorous imprisonment for a further period of six months. If realised, an amount of Rs.4,000/- shall be released to the victim/P.W.1 as compensation under Sec.357(1) Cr.P.C. (d) The petitioner shall have time till 2/5/09 to surrender before the learned Magistrate to serve the modified sentence hereby imposed. Till then, the impugned sentence shall not be executed. (e) The petitioner shall appear and his sureties shall produce him before the learned Magistrate on that date. (f) Needless to say, if the petitioner does not appear, the learned Magistrate shall at liberty to initiate coercive steps under Sec.446 Cr.P.C. against the petitioner and his sureties. (R. BASANT, JUDGE) Nan/ Crl.R.P.No. 1417 of 2003 -: 7 :- R. BASANT, J. ------------------------------------------------- Crl.R.P.No. 1417 of 2003 ------------------------------------------------- Dated this the 27th day of March, 2009 ORDER