IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 831 of 2002() ----------------------- CRA.54/1995 of SESSIONS COURT, MANJERI CC.287/1994 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT(S): COMPLAINANT ------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.TEK CHAND RESPONDENT(S): ACCUSED ---------------------- THACHARAMBAN HUSSAIN, S/O. MUHAMMED, MALAYIL HOUSE, KOZHIMANNA AMSOM, DESOM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.A .No. 831 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009 JUDGMENT This is an appeal filed by the State for enhancement of the sentence of the respondent/accused. He was convicted under Section 447 and 326 of IPC by the Judicial First Class Magistrate Court, Malappuram by judgment dated 16/03/1995. On appeal by the accused, the Sessions Court, Manjeri in Crl.Appeal No. 54/95 maintained the sentence under Section 447 of IPC and reduced the sentence under Section 326 of IPC to simple imprisonment for three months. 2. The case of prosecution as shaped in evidence before the trial court was that at about 8:00 p.m. on April 6, 1994, the respondent/accused trespassed into the courtyard of the house of PW1, defacto complainant and voluntarily cause grievous hurt to him by beating him with an axe handle on his forehead. PW1 was admitted in the hospital. PW6 is the medical officer who examined PW1 and issued Ext.P5 wound certificate and Ext.P6 discharge certificate. PW5 CRA.No.831/2002 2 is the then ASI of Police who recorded F.I. statement - Ext.P1 and conducted the investigation and laid the charge. The learned Magistrate took cognizance of the offence. The respondent/accused on appearance before the trial court pleaded not guilty to the charge under Section 447 and 326 of IPC. Pws 1 to 6 were examined. Exts.P1 to P6 were marked and MO 1 was produced on the side of the prosecution before the trial court. When questioned under Section 313 Cr.P.C., the accused denied having committed any offence before the trial court and submitted that it was PW1, who trespassed into his house and assaulted and that PW1 fell down and sustained injuries. He got himself examined as DW1 before the trial court. The trial court accepted the evidence of prosecution and rejected the evidence of DW1, found the respondent/accused guilty of the offence punishable under Section 447 and 326 IPC, convicted him and sentenced him to undergo simple imprisonment for three months under Section 447 IPC and simple imprisonment for one year under Section 326 of IPC. 3. On appeal, the Session Court confirmed the conviction under Section 447 and 326 of IPC and while maintaining the sentence CRA.No.831/2002 3 under Section 447 of IPC, reduced the sentence under Section 326 of IPC to three months simple imprisonment. The State has challenged the said judgment of the Sessions Court in reducing the sentence of the respondent as aforesaid. 4. The only point which arises for consideration is whether the appellate court is justified in reducing the sentence of the respondent and if not, whether the sentence of the respondent should be enhanced. Sri.Tek Chand, learned Public Prosecutor appearing for the prosecution argued that sentence imposed by the Sessions Court is grossly inadequate and that as PW1 suffered grievous injury in the head, the sentence imposed on the appellant should be enhanced. Learned counsel for the respondent would argue that the Sessions Court is justified in reducing the sentence taking into account the fact that the accused and PW1 are close relatives. It is not in dispute that accused and PW1 are close relatives. PW1 is the uncle of the accused. When questioned regarding the sentence by the lower court, the accused has stated that his wife is a mental patient and that he has to look after his children. Under these CRA.No.831/2002 4 circumstances, I feel that the Sessions Court is right in reducing the sentence of the respondent/accused. I find no ground to enhance the sentence of the respondent. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed. P.Q.BARKATH ALI JUDGE sv. CRA.No.831/2002 5