IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Crl.Rev.Pet.No. 1434 of 2001() ------------------------------ SC.347/1999 of ASSISTANT SESSIONS COURT, ALAPPUZHA CRA.259/2000 of ADDL. SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S): -------------------------------- 1. JAGAJEEVANRAM @ RAM, AGED 35, S/O. DEVADAS PERUMAL, KAVALIKKAL HOUSE, WARD NO.13, PUNNAPRA PANCHAYAT. 2. KUNJUMON, S/O. MARKOSE, AGED 51, OTHARA VEEDU FROM PALLIVELIYIL VEEDU, WARD NO.4, PUNNAPRA PANCHAYAT. 3. ANIL KUMAR @ ANIYAN, S/O. ANIRUDHAN, AGED 29 YEARS, NALPATHILCHIRAVEEDU, WARD NO.4, PUNNAPRA PANCHAYAT. BY ADV. SRI.P.G.THAMPI, SENIOR ADVOCATE ADV. SRI.S.SANAL KUMAR RESPONDENT(S): ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK P.Q. BARKATH ALI, J. -------------------------------- CRL. R.P. NO. 1434 OF 2001 --------------------------------------- DATED THIS THE 9TH DAY OF NOVEMBER 2009 ORDER ---------- The revision petitioners are accused Nos. 1 to 3 in S.C No. 347 of 1999 on the file of the Principal Assistant Sessions Judge, Alappuzha and appellants in Crl. Appeal No. 259 of 2000 on the file of the Court of Addl. Sessions Judge, Alappuzha. They are convicted under Sections 307 and 326 r/w Section 34 IPC and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs. 20,000/- each with a default sentence of rigorous imprisonment for a period of six months each under Section 307 IPC and to undergo rigorous imprisonment for two years under Section 326 IPC. The sentences were ordered to run concurrently. Accused Nos. 4 to 8 were found not guilty and were acquitted. The conviction and sentence of the revision petitioners are confirmed in appeal. 2. The case of the prosecution as shaped in evidence before the trial court is this: CRL. R.P. NO. 1434 OF 2001 2 On 18-11-1998 at about 7.30 p.m. while PW1 was standing in front of the gate of Koyickal House in Kalathattu-Mathuchira road in Ward No.14 of Punnapra Panchayat waiting for his friend Anil Kumar, revision petitioners along with accused 4 to 8 formed themselves an unlawful assembly armed with deadly weapons like chopper, sword stick, iron bar, cudgel etc.. and attacked the PW1. The first accused inflicted a cut injury on the head of PW1 and the 2nd accused inflicted a cut injury on the left fore-arm of PW1 with another chopper. The 3rd accused inflicted a cut injury just below the left knee of PW1 with chopper. The injuries were described in Ext.P5 wound certificate. It was also alleged that other accused persons also caused injuries to PW1 by beating with iron bar etc.. and that thereby committed offences punishable under Sections 143,147,148,326 and 307 of IPC. 3. The accused persons on appearance before the trial court pleaded not guilty to the charges under Section 143,147,148,326 and 307 IPC r/w. Sec. 149 of IPC. PWs 1 to 13 CRL. R.P. NO. 1434 OF 2001 3 were examined and Exts. P1 to P12 and MOs 1 to 6 were marked on the side of the prosecution. When questioned under Section 313 IPC, they denied the entire incident. DW1 was examined on the side of accused persons. 4. On an appreciation of evidence, the trial court found accused Nos. 1 to 3 guilty of the offences punishable under Sections 326 and 307 r/w. Section 34 IPC convicted them thereunder and sentenced them. The conviction and sentence imposed on them were confirmed in appeal. Accused Nos. 4 to 8 were found not guilty of offences alleged against them and acquitted of the said offences. Accused Nos. 1 to 3 were also found not guilty of offences punishable under sections 143,147,148 r/w. 149 IPC. Accused Nos. 1 to 3 challenge their conviction and sentence in their revision. 5. Heard the learned Counsel for the revision petitioner and the learned Public Prosecutor. The following points arise for consideration: CRL. R.P. NO. 1434 OF 2001 4 a) Whether the conviction of the revision petitioners under Sections 326 and 307 r/w. Section 34 of IPC rendered by the lower court which is confirmed in appeal can be sustained ? b) Whether the punishment imposed is excessive or unduly harsh ? 6. PWs 1 to 13 were examined and Exts.P1 to P12 & MO 1 to 6 were marked on the side of the prosecution. PW1 is the injured de-facto complainant. PWs 2 and 3 are the alleged eye witnesses to the incident. PWs. 1 to 3 had given a consistent version regarding the incident. No serious contradiction were brought out in their cross examination to disbelieve the evidence. Further the evidence of PWs 1 to 3 that PW1 sustained injuries in the incident at about 7.30 p.m. on 18-11-1998 is probablised by the fact that PW 10, the doctor who examined him at about 8.5 p.m. found injuries on him mentioned in Ext.P5 wound certificate. 7. PW4 is the another alleged eye witness to the incident who turned hostile and did not support the prosecution. PW5 is CRL. R.P. NO. 1434 OF 2001 5 the witness to the seizure mahazer, Ext.P3 which was for seizing chappels found at the scene of incident. PW6 is the witness to mahazer Ext.P4. PW7 is a witness to the seizure mahazer of MO1. He turned hostile and did not support the prosecution. PW8 is the taxi driver who took injured PW1 to the hospital. He was not cross examined by the defence counsel. His evidence shows that at 7.30 p.m. PW1 sustained injuries in the incident. PW9 is the S.I of police who recorded the statement of PW1 (Ext.P1). On the basis of Ext.P1, a case was registered. Ext.P1(a) is the F.I.R. PW10 is the doctor attached to the Government hospital who examined the injured PW1 and issued the wound certificates (Ext.P6). PW11 is the then Village Officer, Punnapra village who prepared plan. PW12 is the then S.I. Of Police, Punnapra Police Station who registered the case. PW13 is the Circle Inspector of Police who laid the charge. 8. The evidence of PW10, the doctor, who prepared Ext.P6 wound certificate shows, PW1 sustained very serious CRL. R.P. NO. 1434 OF 2001 6 injuries. Further the accused persons attacked PW1 shouting to kill which shows that the intention of revision petitioners was to kill PW1. Thus the prosecution has succeeded in proving that the accused persons caused greivious hurt to PW1 by using deadly weapons like chopper,sword stick, iron bar, cudgel etc.. and also attempted to kill PW1 and that they thereby committed the offences punishable under Sections 326 and 307 r/w. Section 34 IPC. Therefore, I confirm the findings of trial court as well as that of the lower appellate court. 9. As regards the sentence accused Nos. 1 to 3 were sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 20,000/- each with a default sentence of rigorous imprisonment for six months under Section 307 IPC and they were also sentenced to undergo rigorous imprisonment for two years under Section 326 IPC by the trial court which was confirmed in appeal. CRL. R.P. NO. 1434 OF 2001 7 10. The incident occurred on 18-11-1998, 11 years back. Taking into consideration that aspect, I feel that rigorous imprisonment for one year and a fine of Rs. 50,000/- each under Section 307 of IPC and also rigorous imprisonment for one year each under Section 326 would meet the ends of justice. In the result, the conviction of the revision petitioners under Section 307 and 326 IPC are confirmed. Sentence is modified to rigorous imprisonment for one year and a fine of Rs. 50,000/- each and in default of payment of fine, they shall undergo simple imprisonment for a further period of three months each under Section 307 of IPC. They are also sentenced to undergo rigorous imprisonment for one year each under Section 326 IPC. Substantive sentences shall run concurrently. The fine amount if realized, the same shall be paid to PW1 as compensation. Their bail bonds are cancelled. P.Q. BARKATH ALI JUDGE pkk CRL. R.P. NO. 1434 OF 2001 8 pkk