IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Crl.Rev.Pet.No. 237 of 2002() ---------------------------------------- CRA.242/1996 of ADDL.SESSIONS COURT, KOTTAYAM CC.118/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, KOTTAYAM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED 1 TO 3: --------------------------------------------------------------------------- 1. ASOKAN, S/O. DIVAKARAN, ARACKALCHIRA VEEDU, KODIMATHA BHAGOM, NATTAKOM VILLAGE. 2. GOPALAKRISHNAN, S/O. RAMAKRISHNAN, PUTHENPARAMBIL VEEDU, MOOLEDAM KARA, NATTAKOM VILLAGE. 3. KESAVAN S/O. KUNJACHAN, PUTHUVEEDU, KUNNAMPALLY KARA, PANACHIKKADU VILLAGE. BY ADV. MR.C.V. JOHN, MR.K.GOPALAKRISHNA KURUP. RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION, (REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT). BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 237 of 2002 ORDER ON CRL.MP. NO.1813/2002 IN CRRP NO.237/2002 DISMISSED 28/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.237 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2009 ORDER Revision petitioners are accused 1 to 3 in C.C.No.118/1992 of Judicial First Class Magistrate Court II, Kottayam and appellants in Crl.Appeal No.242/1996 of Additional Sessions Court, Kottayam. They were convicted under Sections 114,326, 447, 427 and 324 read with Section 34 of IPC and are sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- each , in default, to undergo simple imprisonment for a further period of three months under Section 326 of IPC. They are further sentenced to undergo rigorous imprisonment for a period of one month each under Section 447 of IPC and to undergo rigorous imprisonment for three months under Section 427 of IPC. No separate sentence was imposed under Section 324 of IPC. Their conviction and sentence were confirmed in appeal. Now the accused persons have come up in revision challenging their conviction and sentence. Crl.R.P.No.237/2002 Page numbers 2. The case of the prosecution as shaped in evidence before the trial court was that on December 17, 1989 at about8.30 P.M. on account of the previous enmity, the accused persons with the intention of causing hurt trespassed into the courtyard of the building of PW1 and PW2 bearing door No.152A of Ward No. XII of Panachikkadu Panchayath and on the instigation of third accused, first accused cut PW2 with a sword stick and second accused beat PW1 and PW2 with an iron rod and inflicted the injuries described in Exts.P2 and P3 wound certificates. In the incident PW1 lost her gold chain worth Rs. 2,100/- and that thereby the accused persons have committed the offences punishable under Sections 447, 114, 324, 326, 427 read with Section 34 of IPC. 3. Initially the case was taken on file by Chief Judicial Magistrate's Court, Kottayam as C.C.No.66/1990 which was made over to the Judicial First Class Magistrate Court II, Kottayam and refiled as C.C.NO.118/1992. When the accused persons appeared before the trial court, they pleaded not guilty to a charge under Section 427, 114, 324, 326 , 447 read with Section 34 of IPC. PWs 1 to 9 were examined Crl.R.P.No.237/2002 Page numbers and Exts.P1 to P7 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, they denied the entire incident. On the side of the accused persons, DW1 was examined. The trial court on an appreciation of evidence found the revision petitioners guilty of the offences punishable under Sections 447, 114, 324, 326 , 427 read with Section 34 of IPC and sentenced them as aforesaid which is confirmed in appeal. Now the accused persons have come up in revision challenging their conviction and sentence. 4. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Sections 447, 114, 324, 326 , 427 read with Section 34 of IPC by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 5. PWs 1 to 9 were examined. Exts.P1 to P7 were marked on Crl.R.P.No.237/2002 Page numbers the side of the prosecution. PWs 1 to 2 are the injured persons. PW1 is the mother of PWs 2 and 3. PW5 is the only independent witness to prove the incident who turned hostile and did not support the prosecution. PW4 is the doctor who initially treated PWs 1 and 2 and issued the wound certificates Ext.P2 and P3. PW6 is the attestor to the scene mahazer. PW7 is the Head Constable who prepared the FIR. PW8 is the Sub Inspector of Police who conducted investigation in this case. PW9 is the Doctor who issued the discharge certificate-Ext.P7 which shows that PW2 sustained fracture on the skull. 6. The lower court records are not called for in this case. Therefore, the counsel for the revision petitioners produced the copies of the depositions in this case. I have gone through the evidence of PWs 1 to 3. I find no reason to disbelieve their evidence. Further trial court has chosen to believe their evidence and the lower appellate court confirmed the said finding of the trial court. I find no reason to come to a different conclusion. 7. The main argument advanced by the defence counsel was that as no independent witnesses were examined in this case and that Crl.R.P.No.237/2002 Page numbers therefore the interested version of PWs 1 to 3 cannot be believed. I find no merit in the above contention. Both the courts below have chosen to believe their evidence. I find no special reason to disbelieve their evidence. In my view the trial court as well as the lower appellate court is perfectly justified in believing their evidence. 8. It was next argued by the counsel for the revision petitioner that the incident occurred at 8.30 P.M., that there was no sufficient light therein to identify the accused persons and that therefore the version of PWs 1 to 3 cannot be believed. There is no substance in the above contention. The accused persons are neighbours of PWs 1 to 3. Further PW2 testified that there was electric light in the building at the time of the incident. Therefore the argument of the counsel for the revision petitioner that PWs 1 to 3 would not have identified the accused persons is without any merit. 9. In an attempt to show that there was no electric light at the scene of incident, DW1 a neighbour of PWs 1 to 3 were examined by the accused. He would say that there was no electric light at the scene of incident. But in Ext.P4 scene mahazer presence of electric light is Crl.R.P.No.237/2002 Page numbers mentioned. That being so, the trial court is perfectly justified in rejecting the evidence of DW1. 10. The next question is whether a charge under Section 326 will lie against the accused persons. The grievous injury sustained by PW2 is fracture on the head as seen from Ext.P7 discharge certificate issued by PW7. Therefore, both the courts below are justified in convicting the accused persons under Section 326 of IPC. Thus I confirm the conviction of the accused persons under Sections 326, 447, 427, 324 and Section 114 of IPC read with Section 34 of IPC. Point No.2 10. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months and a fine of Rs. 1000/- each under Section 326 of IPC and rigorous imprisonment for one month each under Section 447 of IPC and rigorous imprisonment for three months each under Section 427 of IPC. No separate sentence was imposed under Section 324 of IPC. The incident occurred in 1989 i.e. about 20 years back. The accused persons are neighbours of PWs 1 to 3 . Taking into consideration all these aspects, I feel that a sentence of Crl.R.P.No.237/2002 Page numbers imprisonment till the rising of court and a fine of Rs. 10,000/- each , in default , to undergo simple imprisonment for six months each under Section 326 of IPC and a fine of Rs. 500/-each under Section 447 of IPC and a fine of Rs.1000/- each under Section 427 of IPC would meet the ends of justice. In the result, Criminal Revision Petition is allowed in part. Conviction of the revision petitioner under Section 326, 447, 114, 324, 427 read with Section 34 of IPC is confirmed. The sentence is modified to the effect that accused persons are sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs 10,000/- each, in default, to undergo simple imprisonment for six months each under Section 326 of IPC. They are further sentenced to pay a fine of Rs. 500/ - each under Section 447 of IPC , in default, to undergo simple imprisonment for two months each. They are further sentenced to pay a fine of Rs. 1000/- each under Section 427 of IPC, in default, to undergo simple imprisonment for one month each. No separate sentence is imposed under Section 324 of IPC. Out of the fine amount, if realised, Rs.5,000/- shall be paid to PW1 and the balance Crl.R.P.No.237/2002 Page numbers amount to PW2 as compensation as provided under Section 357(1) Cr.P.C. The accused persons shall surrender before the trial court on or before 30-11-2009 to receive the sentence. Time is granted for payment of fine upto 30-12-2009. P.Q.BARKATH ALI JUDGE sv. 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