IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH APRIL 2010 / 10TH VAISAKHA 1932 Crl.Rev.Pet.No. 1460 of 2010() ------------------------------ CRA.545/2008 of ADDL.SESSIONS COURT, FAST TRACK (AD HOC), MAVELIKKARA CC.524/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, CHENGANNUR .................... REVISION PETITIONER(S)/APPELLANTS/ACCUSED ----------------------------------------- 1. SURESH @ UNNI, AGED 33 YEARS, S/O.REMANAN, BABAS BHAVANAM, KEEZHCHERIMEL MURI, CHENGANNUR, FROM AMBILY BHAVANAM, AREEKARA MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA. 2. RAJAN, AGED 37 YEARS, S/O.REMANAN, AMBILY BHAVANAM, AREEKARA MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA. BY ADV. SRI.AJITH MURALI RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI K.M.FIROZ THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1460 of 2010 -------------------------------------- Dated this the 30th day of April, 2010. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge-I, Mavelikkara in Crl.Appeal No.545 of 2008 confirming conviction of petitioners/accused Nos.1 and 2 for offence punishable under Section 341 of the Indian Penal Code (for short, “IPC”), altering their conviction under Section 324 to Section 323 IPC and modifying the sentence accordingly. Case arose on the first information (Ext.P1) given by PW1 on 23.05.2006 while undergoing treatment at Government Hospital, Chengannur. Ext.P1 was recorded by PW6, Head Constable. PW7, Sub Inspector registered the case, conducted investigation and submitted final report. 2. Case is that on 22.05.2006 at about 11 p.m. petitioners attacked PW1 in front of K.S.R.T.C. bus stand at Chengannur, petitioner No.1 wrongfully restrained PW1 and hit him with soda bottle on his right wrist, petitioner No.2 kicked him, PW1 fell down and petitioners hit him with hands. Hearing the hue and cry PW3, wife of PW1 reached the scene of occurrence. Petitioner No.2 assaulted her also. PWs 1 and 3 gave evidence as above. PW2 is a witness to the incident, supported the prosecution and claimed to have taken PW1 to the Government Hospital, Chengannur in his autorickashaw. PW4, another occurrence witness did not support the prosecution but stated about presence of petitioners at the place of occurrence at the relevant time. PW6, Head Crl.R.P.No.1460/2010 2 Constable proved Ext.P1(a), body note of PW1 which tallied with the injury on PW1 noted by PW5, Assistant Surgeon in Ext.P2. There was injury on the left elbow of PW1. Based on the above evidence learned Magistrate found petitioners guilty under Sections 341 and 324 read with 34 IPC. On appeal at their instance, appellate court held that the soda bottle was not recovered by the Police and no question was put to PW5, Assistant Surgeon as to whether the soda bottle is a dangerous weapon. Observing so the conviction under Section 324 IPC was altered to Section 323 IPC. Learned counsel would contend that the evidence is not sufficient to warrant conviction of petitioners. 3. I have gone through the judgments under challenge and heard learned counsel for petitioners and the Public Prosecutor. PWs 1 to 3 have given evidence regarding the alleged incident. True, PW4 another occurrence witness turned hostile but his evidence shows that petitioners were present near the place of occurrence at the relevant time. That corroborated the evidence of PWs 1 to 3 to that extent. That, PW1 suffered injury at the relevant time is proved by Exts.P1(a) and P2. Courts below observed that the discrepancies pointed out by the defence is minor in nature, cannot affect the case of prosecution and accepted the same. Appellate court however found against the case of prosecution that the soda bottle was used for the reason that the same was not recovered by the Police. Having regard to the judgments under Crl.R.P.No.1460/2010 3 challenge and on hearing learned counsel for petitioners and Public Prosecutor I do not find reason to interfere with the conviction as altered by the learned Additional Sessions Judge. 4. So far as the sentence is concerned, learned Magistrate sentenced petitioners to undergo simple imprisonment for one month under Section 341 IPC and that was confirmed by the appellate court. Consequent to the alteration of conviction from Section 324 to Section 323 IPC, sentence for that offence was modified as simple imprisonment for six months from one year. Learned counsel made a fervent plea for further leniency in the matter of sentence and requested for invocation of the provisions of Probation of Offenders Act (for short, “the PO Act”). In the facts of the case I am not inclined to think that this is a fit case where the provisions of the PO Act are to be applied. Cogent reasons are stated by the learned Magistrate for not invoking the provisions of the PO Act. But there is no evidence or circumstance to prove previous enmity for petitioners towards PWs 1 and 3. Injuries suffered by PW1 is simple in nature. So far as PW3 is concerned, no wound certificate is produced though petitioner No.2 assaulting her also. In these circumstances I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time PWs 1 and 3 who suffered hurt at the hands of petitioners cannot be forgotten. They have to be compensated for the pain and agony they suffered. Having regard to the facts and circumstances I direct that petitioners shall pay Crl.R.P.No.1460/2010 4 Rs.5,000/- to PW1 and Rs.2,000/- to PW3 as compensation. The amount shall be paid by the petitioners in equal proportion failing which they shall undergo simple imprisonment for three months each. Resultantly, Revision Petition is allowed in part in the following lines: While maintaining conviction entered by the appellate court, the sentence awarded to the petitioners on both counts is modified as simple imprisonment till rising of the court. Petitioners are directed to deposit in the trial court Rs.5,000/- (Rupees five thousand only) for payment to PW1 and Rs.2,000/- (Rupees two thousand only) to PW3 as compensation. The deposit shall be made within three months from this day. The amount shall be deposited by petitioners in equal proportion. In case of default, such of the petitioners who defaulted deposit shall undergo simple imprisonment for three months each. Petitioners shall appear in the trial court on 02.08.2010 to receive the sentence. Until then execution of warrant against the petitioners will stand in abeyance. Crl.M.A.No.4401 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks