IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3554 of 2010() ------------------------------------ CRA.36/2008 of ADDL.SESSIONS COURT-III, KOZHIKODE SC.342/2006 of II ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ------------------------------------------------------- 1. KUNHAYAN, S/O. KOYADEEN, THARAMMAL HOUSE, CHEVARAMBALAM, KOZHIKODE. 2. HAMEED, S/O. KUNHAMMED, KUTHAMBALATH, CHEVARAMBALAM, C.H. COLONY, KOZHIKODE. BY ADVS. SRI.P.V.KUNHIKRISHNAN SRI.HANSON.P.MATHEW RESPONDENT(S): RESPONDENT ------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V. RAMKUMAR, J. = = = = = = = = = = = = Crl.R.P.No.3554 of 2010 = == = = = = = = = = = == Dated this the 2nd day of December, 2010 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioners who are the accused in S.C.No.342/2006 on the file of the II Additional Assistant Sessions Court, Kozhikode for offences punishable under Sections 452,308, and 427 read with 34 IPC, challenge the conviction entered and the sentence passed against them for the aforesaid offences. 2. The case of the prosecution can be summarised as follows: On 24.9.2005 at about 12.30 am, the accused persons due to previous enmity towards PW1 and in furtherance of their common intention to cause mischief to PW1, broke the glass panels in front of Balalakshmi Hotel of PW1 at Chevarambalam Bazar and destroyed articles inside the hotel causing damage to the tune of `50,000/- to PW1. On hearing the noise when PW1 rushed to the site A1 hit PW1 with an iron rod on his head which was, however, avoided by PW1. The accused were thereby committed offences punishable under Sections 452,308 and 427 read with 34 IPC. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned offences, Crl.R.P.No.3554/2010 -:2:- the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as P.Ws 1 to 5 and got marked 3 documents as Exts. P1 to P3. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 17.12.2007 acquitted the revision petitioners under Section 235(1) Cr.P.C of the offences punishable under Sections 452 and 308 IPC but convicted the revision petitioners for the offences punishable under Sections 451 and 427 read with 34 IPC. For the conviction under Section 451 IPC, they were sentenced to undergo simple imprisonment for one year each and to pay a fine of `1000/- and on default to pay the fine to undergo simple imprisonment for one month each. For the conviction under Section 427 IPC they were sentenced to undergo simple imprisonment for one year and to pay a fine of 1000/- and on default to pay the fine to undergo simple imprisonment for one month. The sentences were directed to be Crl.R.P.No.3554/2010 -:3:- run consecutively. On appeal preferred by the revision petitioners before the Sessions Court, Kozhikode, the lower appellate court as per judgment dated 28.10.2010 confirmed the conviction entered and the sentence passed against the revision petitioners. Hence, this Revision. 6. Eventhough the learned counsel appearing for the revision petitioners assailed on various grounds the conviction entered against the revision petitioners, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 7. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioners. Having regard to the facts and circumstances of the case, I do not think that the revision petitioners deserve penal servitude by way of incarceration for the said conviction. I am of the view that interests of justice will be adequately met by imposing a sentence to be passed hereinafter. Accordingly, the sentence imposed on the revision petitioners is set aside. For their conviction under Crl.R.P.No.3554/2010 -:4:- Section 452 IPC each of the revision petitioners is sentenced to imprisonment till the rising of the court and to pay a fine of `10,000/-( Rupees ten thousand only) On default to pay the fine they shall suffer simple imprisonment for three months. For their conviction under Section 427 IPC, each of the petitioners is sentenced to pay a fine of `20,000/- (Rupees twenty thousand only) and on default to pay the fine to suffer simple imprisonment for one month. From out of the fine amount a sum of `45,000/- (Rupees forty five thousand only) shall be paid to PW1 as compensation under Section 357(1)(b)Cr.P.C. The petitioners are given two months' time from today to deposit the fine. They shall appear before the trial court on 7.02.2011 for the purpose of undergoing the sentence of imprisonment till the rising of the Court. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. Dated this the 2 nd day of December, 2010. V.Ramkumar, Judge. sj