IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 Crl.Rev.Pet.No. 1856 of 2009() ------------------------------ CRA.93/2008 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.382/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... REVN. PETITIONERS/APPELLANTS/ACCUSED 1 TO 3: ---------------------------------------------- 1. HUSSAIN RAWTHER,KUTTIYIL PADEETTATHIL, ERUMAKUZHY MURI,PALAMEL VILLAGE. 2. HASHIM RAWTHER,S/O.HUSSAIN RAWTHER, KUTTIYIL PADEETTATHIL,ERUMAKUZHY MURI,PALAMEL VILLAGE. 3. BEENA KUMARY @ SOFIYA,W/O.HUSSAIN RAWTHER,KUTTIYIL PADEETTATHIL,ERUMAKUZHY MURI, PALAMEL VILLAGE. BY ADV. SRI.K.SASIKUMAR RESPONDENTS: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 1856 of 2009 --------------------------------------- Dated this 17th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Mavelikkara in criminal appeal No.93 of 2008 confirming conviction and sentence of petitioners. Accused No.2 is son of petitioner Nos.1 and 3. Case is that on 03-12-04 at about 8 p.m they trespassed into the sit out and hall of PWs.1, 2 and 4 carrying weapons such as brick, iron rod and chopper, used obscene words at them, criminally intimidated them and voluntarily caused hurt to PWs.1, 2 and 4. Information regarding the alleged incident was given by PW1 based on which case was registered. After investigation final report was submitted against petitioners for offences punishable under sections 294(b), 452, 324, 447 and 506(ii), r/w section 34 of the Penal Code (for short, “the Code”). 2. PWs.1, 2 and 4 are the injured. That, they sustained injuries on the relevant day is proved by Exts.P2 to P4 and the evidence of PW3 who examined them and issued those certificates. Ext.P5 is the mahazar for scene of occurrence which describes the scene of occurrence as the central hall of the house of PWs.1 and 2. It is stated in Ext.P5 that the articles in the house were seen in disarray. There was also dry blood strains at different places in the hall. Evidence of PWs.1 and 2 is that at the relevant time while they were Crl.R.P.No.1856 of 2009 2 sitting in the sit out, petitioners who are residing nearby came to the road in front of their house and uttered obscene words against them. When they resisted petitioners came to their sit out PWs.1 and 2 withdrew to the hall. Petitioner No.1 assaulted PW2 with a brick. When PW1 interfered, the brick fell on her. Petitioner No.2 then assaulted PW2 with a iron rod. Seeing the incident, PW4 (father of PW2 and husband of PW1) who had been to the shop came there. When PW4 entered the hall petitioner No.2 assaulted PW4 with iron rod. Petitioner No.3 raised a chopper against them threatening to kill them. PWs.1, 2 and 4 were threatened. Petitioners went away from the scene. Motive behind the alleged incident is that PWs.1, 2 and 4 allegedly gave information about petitioners to the Excise Officials. PW4 stated that he had been to the shop and while returning therefrom, heard alarm from his house. He reached there and on entering the house, saw petitioner No.2 assaulting PW2 with the iron rod. PW1 had bleeding injury on the head. PWs.1 and 2 also entered the hall. When he interfered petitioner No.2 assaulted him with the iron rod. Petitioner No.3 came with the chopper and threatened to kill them. PW8 is a witness to the alleged incident. He is an autorikshaw driver. He stated that he was returning after trip and saw petitioner No.1 using obscene words standing in the courtyard of PW1 and pelting stones at the house. When PWs.1 and 2 entered the house petitioner Crl.R.P.No.1856 of 2009 3 No.1 also got into the house with the brick. He also referred to petitioner No.2 entering the house with the iron rod. According to PW8, petitioner No.3 was seen standing on the courtyard threatening the inmates of the house. PW9 heard commotion in the house of PW1. PW5 recorded Ext.P1. PW7, Sub Inspector registered the case and prepared Ext.P5, mahazar for scene of occurrence. Petitioners examined DW1, medical officer who issued Ext.D1, wound certificate allegedly of petitioner No.2. DW1 stated that the patient by name Hashim was examined by Dr.Usha on 03-12-2004 at about 10 p.m. Petitioner No.2 gave evidence as DW2. He stated that he had some mental problems earlier and PW1 and others used to call him a crock. He would say that PW2 and others assaulted him and broke his head with iron rod and stick. He was taken to the hospital. It is contended by learned counsel that there is no reliable evidence to prove the alleged incident. Possibility of PW2 and others assaulting petitioner No.2 cannot be ruled out, it is argued. 3. Going by the evidence of DW1, it was not who he had treated the patient referred to in Ext.D1. Dr. Usha had examined the patient referred to in Ext.D1 on 03-12-2004 at about 10.30p.m. It is not clear whether the patient referred to in Ext.D1 is petitioner No.2. At any rate there is no evidence to show that petitioner No.2 suffered any injury in the course of the incident. Therefore evidence of DW1 Crl.R.P.No.1856 of 2009 4 and Ext.D1 is of no use. 4. So far as the incident is concerned there is evidence of PWs.1, 2 and 4 and 8. As per the evidence of PW9 there was commotion in front of the house of PWs.1, 2 and 4. That PWs.1, 2 and 4 sustained injuries on the relevant day is also proved by prosecution. So far as the involvement of petitioner No.3/accusedNo.3 is concerned, evidence given by PWs.1, 2, 4 and 8 is not satisfactory. According to PWs.1, 2 and 4, petitioner No.3 also had entered the house along with petitioner Nos. 1 and 2. They asserted that petitioner No.3 was carrying a chopper. But PW8, the only independent witness did not say that petitioner No.3 entered the house or even sit out. He only said that petitioner No.3 was standing in the courtyard. Nor did PW8 say that petitioner No.3 was carrying any weapon. Therefore involvement of petitioner No.3 in my view is not proved beyond reasonable doubt. 5. So far as petitioner Nos. 1 and 2 is concerned, there is the evidence of PWs.1, 2, 4 and 8 and I find no reason to disbelieve them. So far as offence under section 294(b) of the Penal Code is concerned, none of the witnesses have stated the words allegedly used by petitioners. Without the actual words being spoken it is not possible to say whether the words allegedly used are obscene in nature. Hence conviction of petitioners under section 294(b) of the Code cannot be sustained. Crl.R.P.No.1856 of 2009 5 6. So far as conviction of petitioner No.3 under section 506(ii) of the Code is concerned, that was based on the finding that petitioner No.3 was carrying a chopper and threatened Pws.1,2 and 4. I found that involvement of petitioner No.3 is not proved beyond reasonable doubt. Therefore conviction under section 506(ii) of the Code also cannot be sustained. The offence under section 447 of the Code is attributed to petitioner No.3 and I found that her role is not proved beyond reasonable doubt. Mere fact of her standing in the courtyard will not constitute the offence of criminal trespass. 6. On going through the evidence on record and hearing learned counsel, conviction and sentence of petitioner No.3 for the offences found against her cannot be sustained and is liable to be set aside. The conviction and sentence of petitioner Nos.1 and 2 for offences punishable under section 294(b) and 506(ii) of the Code also cannot stand and are liable to be set aside. There is no reason to interfere with conviction of petitioner Nos.1 and 2 for the offences punishable under sections 452 and 324 r/w section 34 of the Code. 7. It is argued by learned counsel that sentence awarded to petitioner Nos.1 and 2 is excessive. Learned counsel submitted that petitioner No.1 met with an accident on 08-05-2009, suffered serious fracture and was discharged from the hospital only on 27-07-2009 and that too, with a long leg cast. It is stated by learned counsel that Crl.R.P.No.1856 of 2009 6 petitioner No.1 is not able to walk freely even now. Learned counsel has produced the photocopy of the discharge card issued from the medical college hospital, Gandhi Nagar concerning Hussain. I find no reason to discard the submission of learned counsel that petitioner No.1 is the patient referred to therein. Considering the nature of injury suffered by petitioner No.1 and his condition now as stated by learned counsel I am inclined to think that he need not be visited with a sentence of imprisonment for a long term. At the same time while showing leniency to petitioner No.1, this court cannot forget PWs.1, 2 and 4 who suffered injury at his hand. Therefore he has to pay compensation to PWs.1, 2 and 4 which considering the facts and circumstances of the case is fixed as Rs.7500/- to be shared by PWs.1, 2 and 4 equally. 7. So far as petitioner No.2 is concerned, he is sentenced to undergo simple imprisonment for one year each under sections 452 and 324 of the Penal Code. Considering the nature of injuries suffered by PWs.1, 2 and 4, with the weapon used by petitioner No.2 and the fact that themselves and petitioners are all neighbours, I am inclined to think that simple imprisonment for three months each is sufficient in the ends of justice. Resultantly this revision petition is allowed in part to the following extent: Crl.R.P.No.1856 of 2009 7 1. Conviction and sentence of petitioner No.3/accused No.3 is set aside. She is acquitted of the charges found against her. 2. Conviction and sentence of petitioner Nos.1 and 2/accused Nos. 1 and 2 for offences punishable under sections 294(b), 447 and 506(ii) r/w section 34 of the Penal Code are set aside and they are acquitted of those charges. 3. While retaining conviction of petitioner No.1 for offence punishable under sections 452 and 324 r./w 34 of the Code sentence awarded to him is modified as simple imprisonment till rising of the court. Petitioner No.1/accused NO.1 is directed to deposit in the trial court for payment to PWs.1, 2 and 4 in equal proportion Rs.7500/- (Rupees Seven Thousand Five Hundred Only) within two months from this day failing which he has to undergo simple imprisonment for three months. 4. While retaining the conviction of petitioner No.2 for offence punishable under sections 452 and 324 of the Code the sentence awarded to him is modified as simple imprisonment for three months each to run concurrently. Petitioner Nos.1 and 2/accused Nos.1 and 2 shall appear in the trial court on 19-10-2009 to receive the sentence. THOMAS P JOSEPH, JUDGE Sbna/