IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.Rev.Pet.No. 2495 of 2009() ------------------------------ CRA.125/2006 of II ADDL. SESSIONS COURT, PALAKKAD CC.169/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. SHANMUGHAN, S/O.NARAYANAN CHETTIAR, PULATHOTTIL VEEDU, COMPANYPADI, THRIPALAMUNDA, KONGAD. 2. MURUKAN, S/O.SUBRAMANIAN, PULATHOTTIL VEEDU, COMPANYPADI, THRIPALAMUNDA, KONGAD. 3. MANIKANDAN, S/O.THATHANNAN @ PAZHANISWAMY CHETTIAR, COMPANYPADI, THRIPALAMUNDA, KONGAD. 4. NANDAN @ RAJAN, S/O.JAGANATHAN CHETTIAR, CHATHIKUZHI VEEDU, CHETTITHARA, THRIPALAMUNDA, KONGAD. BY ADV. SRI.N.RAGHURAJ RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2495 of 2009 -------------------------------------- Dated this the 28th day of August, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge-II, Palakkad in Crl.Appeal No.125 of 2006 confirming conviction and sentence of petitioners for offences punishable under Sections 341 and 323 read with Section 34 of the Indian Penal Code (for short, “the Code”). Petitioners faced trial in the court of learned Judicial First Class Magistrate –II, Palakkad in C.C.No.169 of 2004 for the said offences and offences punishable under Sections 355 and 506(1) of the Code. Case is that on 27.5.2004 at about 10 a.m. petitioners wrongfully restrained PW4 and voluntarily caused hurt to him beating with hands and chapels and when PW5, his wife interfered she was also assaulted and she was restrained by holding on the tuft of her hair. There was also an allegation that petitioners criminally intimidated PWs 4 and 5 with death. Prosecution examined PWs 1 to 10, marked Exts.P1 to P6 and proved MO1. Learned magistrate found that offences punishable under Sections 355 and 506 (1) of the Code are not established. Petitioners were convicted of the offences punishable under Sections 341 and 323 read with Section 34 of the Code and sentenced to undergo simple imprisonment for one month each under Sections 341 of the Code and three months each under Sections 323 of that Code. Crl.R.P.No.2495/2009 2 Appellate court confirmed that conviction and sentence. It is contended by learned counsel that conviction of petitioners is not legally sustainable. Further contention is that sentence awarded is excessive. 2. PWs1 and 4 to 7 are witnesses examined by the prosecution to prove the alleged incident. Of them PW1 refused to support the prosecution. PWs 6 and 7 are related to PWs 4 and 5, alleged victims. PW4, defacto complainant stated that at the relevant time he was going to the tea shop of one Raghavan and petitioner No.1 wrongfully restrained him. Petitioner No.1 collected his chapel (identified as MO1) and slapped PW4 on the right cheek. Petitioners 2 to 4 also assaulted and kicked him. Hearing cry of PW4, his wife (PW5) came to the scene. Petitioner No.2 caught her on the tuft of hair and assaulted her. PWs 6 and 7 also gave similar evidence. PWs 4 and 5 were taken to hospital. There PW2 examined them and issued Exts.P1 and P2, wound certificates. While undergoing treatment in the hospital PW4 gave first information statement (Ext.P3). PW3 recorded Ext.P3 and registered case. Ext.P4 is the mahazar for scene of occurrence prepared by the investigation officer. Ext.P5 is the mahazar for seizure of MO1 from the scene of occurrence. From the above evidence learned magistrate concluded that petitioners committed offences punishable under Sections 341 and 323 of the Code as above stated. Contention is that evidence is not sufficient to warrant conviction. 3. Learned counsel contends that even as per the evidence of PWs 4 and 5 when PW4 was assaulted he raised hue and cry and PWs 6 and 7 Crl.R.P.No.2495/2009 3 came. According to learned counsel going by the evidence of PWs 4 and 5 there was no possibility of PWs 6 and 7 witnessing the incident. Even if it is assumed that PWs 6 and 7 had not seen the incident, there is evidence of PWs 4 and 5 regarding the same. That evidence is supported by Exts.P1 and P2, wound certificates issued by PW2. Courts below found that there is no reason to disbelieve the evidence of PWs 4 and 5. On going through the judgments under challenge and hearing learned counsel I find no reason to disagree with that finding. Conviction of petitioners for offences punishable under Sections 341 and 323 read with Section 34 of the Code therefore has to stand. 4. What remained for consideration is whether sentence awarded is excessive. It is submitted by learned counsel that the parties are related. It is submitted that petitioners are not involved in any other case before or after the incident on hand. Having regard to these aspects I am inclined to think that imprisonment till rising of the court is sufficient in the ends of justice. At the same time the pain and agony suffered by the victims cannot be forgotten. They must be assured that they were not forgotten in the administration of justice. Having regard to the nature of injuries suffered by PWs 4 and 5 I direct that petitioners have to pay compensation of Rs.5,000/- to PWs 4 and 5, to be shared by them equally. In case of failure, petitioners have to undergo simple imprisonment for one month each. Resultantly this revision petition is allowed to the extent that sentence imposed on petitioners is modified to the following extent: i. Substantive sentence imposed on petitioners under Sections 341 Crl.R.P.No.2495/2009 4 and 323 read with Section 34 of the Code is modified as simple imprisonment till rising of the court. ii. Each of the petitioners are direct to deposit in the trial court for payment to PWs 4 and 5 Rs.1,250/- (Rupees one thousand two hundred and fifty only) within one month from this day failing which they shall undergo simple imprisonment for one month each. iii. It is directed that compensation if realized shall be given to PWs 4 and 5 equally. Petitioners shall appear in the trial court on 1.10.2009 to receive the sentence. Until then execution of warrant if any against the petitioners will stand in abeyance. THOMAS P.JOSEPH, Judge. cks