IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 Crl.Rev.Pet.No. 360 of 2002() --------------------------------------- CRA.124/1994 of SESSIONS COURT, MANJERI CC.108/1992 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED NOS.1 & 3 TO 5 --------------------------------- 1. CHERUKAPPALLI ABDULLAH S/O.MARAKKAR, PANTHALLOOR AMSOM,AMAKKAD. 2. CHERUKAPPALLI MUHAMMED,S/O.MARAKKAR, PANTHALLOOR AMSOM,AMAKKAD 3. AMINA W/O.CHERUKAPPALLI MUHAMMED, PANTHALLOOR AMSOM,AMAKKAD. 4. AMINE W/O.CHERUKAPPALLI ABDULLAH, PANTHALLOOR AMSOM,AMAKKAD. BY ADVS. MR.S.VIJAYAKUMAR MR.RAJU RADHAKRISHNAN MR.M.T.SURESH KUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA ,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR MR.I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/03/2010, ALONG WITH CRRP NO. 361 OF 2002 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.2581/2002 IN CRRP. NO.360/2002 DISMISSED 11/03/2010 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.S.GOPINATHAN, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.Nos.360 & 361 of 2002. =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 11th day of March, 2010. O R D E R The Sub Inspector of Police, Pandikkad Police Station, who was examined as PW7, prosecuted the revision petitioners before the Judicial Magistrate of the First Class- I, Perinthalmanna, alleging offences under Sections 143, 148, 452, 324 and 326 read with Section 149 IPC in CC.No.108/1992. After hearing the revision petitioners, a charge for the above said offences was framed. They pleaded not guilty. Hence, they were sent for trial. On the side of the prosecution, PWs 1 to 11 were examined. Exts.P1 to P8 were marked. MOs 1 to 3 series were marked. After closing the evidence for prosecution, the revision petitioners were questioned under Section 313 of the Code of Criminal Procedure. They denied the incriminating evidence. No defence evidence was let in. Crl.R.P.Nos.360 & 361/2002. -: 2 :- The revision petitioners and the prosecution were heard and the case was posted to 30-05-1994 for judgment. On that day, the second accused, who is the revision petitioner in Crl.R.P.No.361/2002 was absent. Judgment was pronounced convicting all the revision petitioners. Thereafter, the case against the revision petitioner in Crl.R.P.No.361/2002, was split up and refiled as C.C.No.279/1994 and coercive steps were ordered. The other accused, who are the revision petitioners in Crl.R.P.No.360/2002, were heard and they were sentenced to simple imprisonment for two months for offence under Section 143 IPC, simple imprisonment for six months and a fine of Rs.1,000/- with a default sentence of simple imprisonment for three months for offence under Section 148 IPC, rigorous imprisonment for one year and a fine of Rs.1,000/- with a default sentence of simple imprisonment for three months for offence under Section 452 r/w.149 IPC, simple imprisonment for six months and a fine of Rs.1,000/- Crl.R.P.Nos.360 & 361/2002. -: 3 :- with a default sentence of simple imprisonment for three months for offence under Section 324 r/w.149 IPC and rigorous imprisonment for two years and a fine of Rs.3,000/- with a default sentence of rigorous imprisonment for six months for offence under Section 326 r/w.149 IPC. 2. Later, the second accused surrendered. He was also heard regarding the sentence and an identical sentence was given by a separate judgment. The revision petitioners preferred Crl.Appeal Nos.124/1994 and 136/1994 as against the judgment in C.C.No.108/1992 and C.C.No.279/1994 respectively before the Sessions Judge, Manjeri. The learned Sessions Judge, by a common judgment dated 05- 02-2002, confirmed the conviction as well as sentence and dismissed both appeals. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeals, these revision petitions were filed. 3. PW2 is the injured. PW3 is the sister of PW2. PW4 is a coolie worker. PWs 3 and 4 were examined as Crl.R.P.Nos.360 & 361/2002. -: 4 :- witnesses in support of the prosecution. PWs 1 and 5 are attestors to Ext.P1 scene mahazar. PW6 is the then Police Surgeon attached to the District Hospital, Manjeri, who treated PW2 and issued Ext.P3 wound certificate. PW7 is the Sub Inspector of Police, who completed the investigation and submitted the final report. PW8 is the attestor to Ext.P6 mahazar prepared for the seizure of clothes. PW9 is the then Civil Surgeon attached to the District Hospital, Manjeri, who issued Ext.P4 discharge certificate. PW10 is the Head Constable, who recorded Ext.P2, the First Information Statement given by PW2 at 5.00 pm. on the same day, while she was undergoing treatment in the District Hospital, Manjeri. PW11 is the Assistant Sub Inspector of Police, who conducted major part of the investigation as was authorised by PW7. Ext.P5 is the intimation issued from the District Hospital, Manjeri. Ext.P7 is the First Information Report whereby the case was initially registered for offences under Sections 143, 147, Crl.R.P.Nos.360 & 361/2002. -: 5 :- 148, 452 and 324 read with Section 149 IPC. Ext.P8 is a report filed by PW7 adding Section 326 IPC along with the offences alleged in the First Information Report. After completing the investigation Pw7 submitted the final report. 4. The prosecution case in a nutshell is that house bearing door No.11/61 of Anakkayam Panchayat was belonging to PW2. In connection with some earlier crime, PW2 had been residing away. On 15-04-1992, PW2 along with Pws.3 and 4 went to the house for cleaning. While they were cleaning the house, at about 11 AM, the accused themselves, in furtherance of their common object, formed into an unlawful assembly and armed with deadly weapons like wooden sticks and bars rushed to the house of PW2. PW2 bolted the door from inside. The revision petitioners pelted stones at the house, broke opened the door by kicking and entered into the house. They intimidated PWs 3 and 4 and all of them assaulted PW2 by beating her with sticks and wooden bars which were marked as MOs 1 series. Crl.R.P.Nos.360 & 361/2002. -: 6 :- Having sustained severe injuries, PW2 lost her senses. She was dragged along the Panchayat road to the courtyard of a neighbouring house. There also she was assaulted and the revision petitioners left the scene. 5. Pw2 had deposed that she had a house at Karuvarakkund adjacent to the house of the revision petitioners. On 15.4.1992 at 11.00 am. she had been to the house along with her sister and a worker, who were examined as Pws.3 and 4, for cleaning the house. By the time, the revision petitioners rushed to the house in group and the 3rd accused uttered to murder and they pelted stones at the house. Seeing this, Pw2 entered the house and closed the door. Pws.3 and 4 got scared. Accused 1 to 3 kicked at the door and got it opened. All the revision petitioners entered into the house. Pw2 she was beaten by the first respondent with a wooden bar. The other accused also beat Pw2 with wooden sticks and bars all over the body and she sustained injury at her face and limbs. She was Crl.R.P.Nos.360 & 361/2002. -: 7 :- dragged out of the house and put on the veranda. Then she was dragged to the house of Kunhimuhammed, approximately 150 fts., away and she sustained serious injuries and that somebody lifted her to the District Hospital, Manjeri. Ext.P2 is the first information statement given by her and MO1 series are the wooden sticks and bars with which she was beaten and that MO2 series are the blood stained clothes which she was wearing at the time when she was assaulted. It was also deposed that the house was damaged by pelting stones and MO3 series are the pieces of stones and broken tiles and that there was boundary dispute between her and the revision petitioners. 6. Pw6 had deposed that Pw2 was brought to the District Hospital, Manjeri, wherein he was working as Police Surgeon, at 1.45 p.m. on 15.4.1992, with injuries sustained by beating with stick and kicking and that Pw2 had contusion with abrasion 10 x 8 cm. on the dorsum of left hand with suspected fracture, multiple abrasion on the right Crl.R.P.Nos.360 & 361/2002. -: 8 :- knee, abrasion on forehead, contusion on right forearm and abrasion on right palm. Ext.P3 is the wound certificate. X-ray examination revealed that there was fracture of lower 1/3rd of right ulna on forearm and fracture 2nd, 3rd, 4th and 5th metacarpal bones left hand and fracture fibula right and Ext.P4 is the discharge certificate issued by Pw9, another Doctor. The evidence of Pw9 and Exts.P3 and P4 corroborate with the oral testimony of Pw2. In fact, there is no much cross examination on Pws.6 and 9 regarding the injuries sustained. Medical evidence supports the evidence of Pw2. 7. The evidence of Pw2 is further corroborated by the testimony of Pw3 who is none other than the sister of the Pw2 and that of the Pw4 who is a worker. Except some minor discrepancies, there is nothing to disbelieve Pws.2, 3 and 4. There is no case that Pw4 is any way interested with Pw2 or he had any axe to grind against the revision petitioners. There is no reason to disbelieve any of the witnesses. Such being the materials on record, I find that Crl.R.P.Nos.360 & 361/2002. -: 9 :- the courts below had correctly appreciated the evidence on record and arrived at a conclusion that Pw2 had sustained simple and grievous hurt. 8. The place of occurrence is stated to be at the house of Pw2. The claim of the respondents is that the house belongs to them and neither Pw2 nor others had got any right over the house. To establish the title of the house, no material was brought in by the revision petitioners. Pws.2, 3 and 4 had deposed that the house belonged to Pw2. The evidence of pw4 on that aspect was not at all challenged in cross examination. Ext.P1 is the scene mahazar prepared by Pw11. In Ext.P1, Pws.1 and 5 are the attestors. The evidence of Pws.1 and 5 regarding their attestation was not at all challenged in cross examination. In Ext.P1, the place of occurrence is noted as the house belonging to Pw2. Neither any question was put to Pws.1 and 5 regarding the title of the house nor the statement in Ext.P1 made by Pw11 after spot enquiry was challenged Crl.R.P.Nos.360 & 361/2002. -: 10 :- when Pw11 was in the witness box. Thus, in addition to the evidence of Pw2, 3 and 4, there is the evidence of Pws.1, 5 and 11 supported by Ext.P1 regarding the title of the house in favour of Pw2. So, the courts below were right in arriving at the conclusion that the house in which the incident occurred was belonging to Pw2. 9. Ext.P1 also would contain the description of the damage sustained. That aspect was also not challenged in cross examination. In this view of the matter, the finding of the courts below that the incident occurred at the house of Pw2 after committing house trespass and that Pw2 was inflicted with simple as well as grievous hurt is based upon cogent evidence. 10. The suggestion put to Pws.2 and 3 would show that the presence of Pw2 was admitted at the house. It was suggested to Pw2 that she attempted to trespass to the house, whereupon accused 4 and 5 objected the same and they were pushed down by Pw2 and at that time the locals Crl.R.P.Nos.360 & 361/2002. -: 11 :- attacked Pw2. By that suggestion, the assault to Pw2 was also admitted. There is nothing to suggest that any person other than the revision petitioners assaulted Pw2. The learned counsel vehemently argued that accused 4 and 5 were falsely implicated. The presence of those accused at the house as well was put to Pw2. Though the revision petitioners had advanced a title over the house in which the incident occurred, they couldn't impeach the veracity of the evidence of Pw2 to 4 supported by the evidence of Pw1, 5 and 11 and Ext.P1. Their claim of title with no document would show that they are aggressors. The revision petitioners have no case that Pw2 was any way armed. Even if it is assumed that Pw2 was attempting to trespass and the revision petitioners were in defence, a brutal assault causing fracture to both forelimbs and right leg of Pw2 was not justifiable. There is nothing on record to show that any of the revision petitioners sustained even a scratch. There is nothing to suggest that Pw2 was an aggressor. Crl.R.P.Nos.360 & 361/2002. -: 12 :- The defence story is totally unbelievable. Whereas prosecution allegation is established. The evidence of Pws.2 to 4 would show that the revision petitioners as members of unlawful assembly were armed with wooden stick and bars and trespassed to the house of Pw2 in furtherance of their common object of inflicting injuries to Pw2 who was unarmed. The nature of injuries sustained to Pw2, which is mentioned earlier would show that the wooden sticks and bars with which she was beaten are deadly weapons. Pw2 was assaulted as a result of which she sustained fracture at both hands and right leg. She was so brutally assaulted that she became unconscious. She was dragged along the Panchayat road and put at the courtyard of the neighbour. Such being the materials on record, I find that the courts below were justified in arriving the conclusion of guilt for offence under Sec.143, 148, 452, 324 and 325 r/w.149 IPC. Courts below had considered the evidence as record and arrived a finding of fact, which in Crl.R.P.Nos.360 & 361/2002. -: 13 :- my opinion is correct and requires no interference. There is no error, illegality or impropriety committed by the courts below. The conviction under challenge requires no interference in exercise of the revisional powers. 11. Regarding sentence, the learned counsel sought for leniency. According to the learned counsel for the revision petitioner in Crl.R.P.No.361/2002, the revision petitioner is aged 82 years and that the revision petitioner is entitled to much leniency in sentence. The learned counsel also submitted that a sentence of fine with compensation to Pw2 would meet the ends of justice. The learned counsel for the revision petitioners in Crl.R.P.No.360/2002 submitted that the revision petitioners 3 and 4 are ladies and they also deserve leniency. 12. Having heard either side, it is revealed that the father of the first and third accused and the brother of the second accused was murdered and that Pw2, her husband and son are facing trial. It appears that the revision Crl.R.P.Nos.360 & 361/2002. -: 14 :- petitioners took revenge when Pw2, after getting bail went to the house. It was a pre-calculated assault. Pw2, though then aged 45 years was brutally assaulted, inflicted grievous hurt on her both forelimbs and right leg. In this view of the matter, in fact, the revision petitioners deserve no leniency. However, taking into account of the entire circumstances including the fact that the revision petitioner in Crl.R.P.No.361/2002 is a senior citizen and that the 4th and 5th accused are ladies, I find that the sentence for offences under Sec.326 and 452 IPC requires a little modification and it would be appropriate to award compensation to Pw2 and I find that rigorous imprisonment of six months for offence under Sec.452 IPC and rigorous imprisonment for a period of one year for offence under Sec.326 IPC with direction to pay Rs.20,000/- each as compensation to Pw2 would meet the ends of justice. The sentence for other offence is moderate and requires no interference. Crl.R.P.Nos.360 & 361/2002. -: 15 :- In the result, these Revision Petitions are allowed in part. While confirming the conviction for all offences and sentence for offence under Sec.143, 148 and 324 read with 149 IPC, the sentence of rigorous imprisonment for offence under Sec.452 and 326 IPC is reduced to rigorous imprisonment for six months and one year respectively. The revision petitioners, each of them shall pay Rs.20,000/- as compensation to Pw2 under Sec.357(3) of the Crl.P.C. The revision petitioners are granted two months time to pay the compensation. In default of payment of compensation, the revision petitioners shall undergo simple imprisonment for further period of six months. Substantive sentences shall run concurrently. P.S.GOPINATHAN (Judge) Kvs/-