IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.Rev.Pet.No. 2613 of 2009() ------------------------------ CRA.253/2008 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.15/2006 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/IST ACCUSED: ------------------------------------------ YOHANNAN, S/O.JOSEPH, THAKIDIYIL VEEDU, VATTAKOTTA MEMURI, KOIPPURAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA. BY ADV. SRI.P.HARIDAS RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, KOZHENCHERRY. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2613 of 2009 --------------------------------------- Dated this 13th day of August 2009 ORDER Accused No.1 in C.C.No.15 of 2006 of the court of learned Chief Judicial Magistrate, Pathanamthitta who was the appellant in Criminal Appeal No.253 of 2008 of the court of learned Additional Sessions Judge, Pathanamthitta is before this court challenging his conviction and sentence for offences punishable under section 451, 323 and 427 r/w section 34 of the Penal Code. Charge is that on 19-04-2005 at about 8 p.m in furtherance of common object petitioners and others formed an unlawful assembly, trespassed into the sit out of PW1 the defacto complainant, voluntarily caused hurt and criminally intimidated him and committed mischief by breaking mirror glass of his car. Though PW1 was immediately taken to the hospital and examined by CW4, that witness was not available for examination inspite of taking coercive steps and hence there is no medical evidence in support of the injury allegedly caused of PW1. PW1, defacto complainant and PW2, his wife have given evidence that on the relevant day and time a group of persons trespassed into their sit out wherefrom PW1 was dragged to the adjoining road and assaulted by petitioner and others. When PW2 intervened she was pushed aside and criminally intimidated. It is the further case of PWs.1 and 2 that accused No.5 broke the rear glass of the car of PW1. PW3 is said to be witness to Crl.R.P.No.2613 of 2009 2 the alleged incident but refused to support the prosecution. Ext.P4, mahazar for scene of occurrence prepared by Investigating Officer on the next day shows that damage was caused to the side glass of the car. Motive alleged is that on the morning of the day of incident PW1 had parked his car on the common pathway which prevented movement of vehicle of petitioner along that pathway and a similar incident happened on the evening of the same day also. Provoked by that, petitioner and others are said to have committed the offences. In the F.I statement given by PW1 that there is no reference to petitioner allegedly trespassing into courtyard or sit out. But, case of PWs.1 and 2 is that one of the members of the unlawful assembly trespassed into the sit out and dragged PW1 to the path road nearby. Though charge of unlawful assembly was found against, petitioner was found guilty for offence punishable under section 451 and 427 of the Code by virtue of section 34 of the Penal Code. Ext.D1 and D2, contradictions marked in the evidence of PW2 did not affect the evidence of PW2. Ext.D1 was not of any significance. Ext.D2 was only to the effect that according to PW2, in the course of incident Rs.2500/- kept on the table in the house of PWs.1 and 2 was taken away by the culprits. Going by the version of PW2 that did not happen. There is no charge against petitioner under section 379 of the Penal Code. 2. This being a case of hurt under section 323 of the Code Crl.R.P.No.2613 of 2009 3 absence of medical evidence is also not fatal. Evidence of PWs.1 and 2 was accepted by the courts below. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the conviction of petitioner. 3. It is submitted by learned counsel that sentence awarded to the petitioner is excessive and that petitioner has been taken to custody on 12-08-2009 and is now detained in the Sub Jail, Pathanamthitta. Learned counsel requested for leniency in the matter of sentence. I have given an anxious consideration of the submission of learned counsel. It is seen that for the offence punishable under sections 323 and 427 of the Code, there is only sentence of fine on petitioner. For the offence under section 451 of the Code, apart from the fine of Rs.1000/- there is substantive sentence of imprisonment for three months. Concededly it was not petitioner who had trespassed into the sit out of PWs.1 and 2 and he has been guilty of that offence by virtue of section 34 of the Code. Obstruction to the common road even according to the prosecution, resulted in the incident. Considering the circumstances I am satisfied that substantive sentence awarded to the petitioner under section 451 of the Penal Code can be modified and confined to the period of imprisonment already undergone and sentence of fine as awarded by the learned magistrate. There is no reason to interfere with the sentence awarded on other Crl.R.P.No.2613 of 2009 4 counts. Resultantly this revision is allowed in part to the following extent: 1. Substantive sentence of imprisonment awarded to the petitioner under section 451 of the Penal Code is modified and confined to the period of sentence already undergone. Sentence of fine awarded under section 451 of the Code and under other counts will remain in force. 2. Petitioner is granted two months' time from today to deposit the fine in the trial court failing which he had to undergo default sentence as ordered by learned magistrate. 3. It is directed that petitioner shall be released from the prison if not required to be detained otherwise. Issue intimation to the Superintendent of Sub Jail, Pathanamthitta forthwith. Petitioner shall appear in the trial court on 15-10-2009 in case of non payment of fine within the aforesaid time, to receive default sentence. THOMAS P JOSEPH, JUDGE Sbna/