IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 Crl.Rev.Pet.No. 1224 of 2001() ------------------------------ CRA.85/1997 of ADDL.SESSIONS COURT, KOTTAYAM CC.121/1993 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR .................... REVN. PETITIONERS/APPELLANTS/ACCUSED --------------------- 1. CHACKO @ THANKACHAN, S/O IYPE WRITTEN AS CHACKO, KAKKOOR HOUSE KANDANCHIRA BHAGAM PEROOR KARA, PEROOR VILLAGE 2. CHERIAN @ SUNNY, S/O IYPE WRITTEN AS CHACKO, KAKKOOR HOUSE KANDANCHIRA BHAGAM PEROOR KARA, PEROOR VILLAGE 3. SCARIAH ALIAS BABU, S/O IYPE WRITTEN AS CHACKO, KAKKOOR HOUSE KANDANCHIRA BHAGAM PEROOR KARA, PEROOR VILLAGE 4. JOY, S/O IYPE, WRITTEN AS CHACKO KANDANCHIRA BHAGAM PEROOR KARA, PEROOR VILLAGE BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS/RESPONDENTS/COMPLAINANTS --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, KOTTAYAM 2. THE SUB INSPECTOR OF POLICE, ETTUMANOOR 3. STATE OF KERALA, REP. B THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.NO.5891/2004 IN CRL.R.P.NO.1224/2001 DISMISSED 10-03-2011 Sd/-, P.Q.BARKATH ALI, JUDGE /True Copy/ PA to Judge P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.no.1224 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of March, 2011 ORDER Revision petitioners are the accused 1 to 4 in C.C.No.121/1993 on the file of Judicial First Class Magistrate, Ettumanoor and appellants in Crl.A.No.85/1997 on the file of Additional Sessions Court, Kottayam. They were convicted under Section 323, 324, 427 read with 34 of IPC and sentenced to undergo simple imprisonment for one month each under Section 323 IPC, simple imprisonment for three months each under Section 324 IPC and to pay a fine of Rs. 1,000/- each under Section 427 of IPC, in default to undergo simple imprisonment for one month by the trial court by judgment dated June 23, 1997. On appeal by the accused persons, the lower appellate court set aside their conviction under Section 427 of IPC and acquitted them of the said offence, but confirmed their conviction and sentence under Section 323 and 324 read with 34 of IPC. The accused persons have now come up in revision challenging their conviction and sentence. Crl.R.P.No.1224/2001 2 2. The case of the prosecution as shaped in evidence before the trial court in brief is this: The injured in this case-PW1 is the Manager of an arrack shop in building No.738/11 of Ettumanoor Panchayat. On November 26, 1992 at about 9 p.m., the accused persons, who are the brothers, went to the arrack shop and consumed arrack. When PW1 demanded payment, they became violent and first accused beat him with a stick on the lumbar region and second accused cut him with a chopper MO1 on the right knee and left palm and third accused beat him with a stick and fourth accused beat him with another stick inflicting the injuries described in Ext.P2 wound certificate. Accused persons have also snatched away Rs.1,650/- kept in his pocket. 3. PW1 got admitted in the Medical College Hospital, Kottayam for treatment. PW5, the doctor therein treated him and issued the wound certificate Ext.P2. On intimation from him, PW6 the then Head Constable in charge of Ettumanoor police station went to the hospital and recorded the statement of PW1- Ext.P1 and charged the case against the accused persons. PW6 conducted preliminary Crl.R.P.No.1224/2001 3 investigation in this case and arrested the accused persons. The Sub Inspector conducted further investigation and laid the charge against the accused persons. 4. The accused persons on appearance before the trial court pleaded not guilty to a charge under Section 323, 324, 427 read with Section 34 of IPC. Pws 1 to 7 were examined and Exts.P1 to P3 and MO1 and MO2 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C., the accused persons denied the entire incident. No defence evidence was adduced. On an appreciation of evidence, the trial court found the accused persons guilty of the offence punishable under Section 323, 324 ,427 read with 34 IPC, convicted them thereunder and sentenced them as aforesaid. On appeal by the accused persons, the lower appellate court acquitted them of the charge under Section 427 IPC, but confirmed their conviction under Section 323, 324 IPC. The accused persons have now come up in revision challenging their conviction and sentence. 5. Heard the counsel for the revision petitioners and the Public Prosecutor. Crl.R.P.No.1224/2001 4 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Section 323, 324 read with 34 of IPC can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 7. Pws 1 to 7 were examined on the side of the prosecution. PW1 gave a consistent version regarding the incident before the trial court. Nothing was brought out during his cross examination to show that he has any previous enmity towards the accused persons. Further, his evidence is supported by Pws 2 and 3, workers of the toddy shop, which was housed in the same building. PW5, the doctor who examined PW1 found corresponding injuries on him. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in believing their evidence and finding that on November 26, 1992 accused persons beat PW1 with sticks and cut with chopper and inflicted the injuries described in Ext.P2 wound certificate. Therefore, I confirm the conviction of the accused persons under Section 323, 324 read with 34 IPC. 8. As regards the sentence, the trial court imposed a sentence Crl.R.P.No.1224/2001 5 of simple imprisonment for one month each under Section 323 IPC, simple imprisonment for three months each under Section 324 IPC. The incident happened in 1992 i.e. about 19 years back. Therefore, a lenient view is taken and I feel that sentence of imprisonment till the rising of court and a direction to pay a compensation of Rs. 5,000/- each to PW1, the injured, with default sentence would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioners under Section 323 and 324 read with 34 of IPC is confirmed. The sentence is modified to the effect that they are sentenced to undergo imprisonment till the rising of court and to pay a compensation of Rs. 5,000/- each to PW1, the injured, in default to undergo simple imprisonment for one month each. Their bail bonds are cancelled. They are directed to surrender before the trial court on or before April 15, 2011 to suffer the sentence. Two months' time is granted for payment of compensation. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1224/2001 6