IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 Crl.Rev.Pet.No. 402 of 2004(A) ------------------------------------------------- CRA.71/1998 of I ADDL. SESSIONS COURT, KOLLAM CC.315/1995 of JFCM-II, KOTTARAKKARA .................... REVN. PETITIONERS/ACCUSED NO.1 AND 2: 1. SHAJI, S/O MAHENDRAN, PUTHUVALVILA VEEDU, ILLAMPAZHANOOR MURI, KADAKKAL VILLAGE. 2. SILAM, S/O SUDHAKARAN OF DO. BY ADV. SRI.V.GIRI RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KADAKKAL. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.402 of 2004 -------------------------- ORDER Petitioners, the accused in C.C.No.315/1995 on the file of Judicial First Class Magistrate's Court-II, Kottarakkara, were convicted and sentenced to simple imprisonment for one month each for the offence under Section 341 read with Section 34 of Indian Penal Code and rigorous imprisonment for one year each for the offence under Section 324 read with Section 34 of Indian Penal Code. Petitioners challenged the conviction and sentence before Sessions Court, Kollam in Crl.A.No.71/1998. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence. It is challenged in this revision. 2. Petitioners contended that courts below did not properly appreciate the evidence and should not have relied on the evidence of PW1, the defacto complainant and PWs 2 and 5, who claimed to be the CRRP 402/04 2 eye witnesses. It is contended that PW1 sustained injuries when he had a fall while he was going in a scooter and because of the previous enmity and disappointment in the order of acquittal of the petitioners in another case, the case is foisted against them and the conviction is unsustainable. It is also contended that in any case, considering the nature of the offences, they should have been granted at least the benefit of Probation of Offenders Act. 3. PW1, the injured, was examined by PW3, the Doctor, on 3.6.1995 at about 8.30p.m. PW3 found an incised wound 1.5 x ½ c.m. deep on the left side of the upper part of abdomen and another incised wound 1.5 x ½ c.m. in the left forearm. He was admitted as an inpatient and later, was discharged on 15.6.2005. The alleged cause of injuries was when PW1 was restrained while going in a scooter and stabbed at about 7.30 p.m. on the same day. Exhibit P1 F.I. Statement was recorded by the Head CRRP 402/04 3 Constable at 7.45 p.m. on 4.6.2005 while PW1 was undergoing treatment in Government Hospital, Kadakkal. PW1 disclosed to the Head Constable that he sustained injuries when petitioners restrained him while he was proceeding from the Tutorial College to his house and when reached Kattadimoodu Junction at about 7.30 p.m. on 3.6.1995, petitioners attacked him, as he is also a member of the Pourasamithi formed by the people to prevent manufacture and sale of illicit arrack. Evidence of PW1 is in accordance with the disclosure made in Exhibit P1. PWs 2 and 5 were examined as the eye witnesses to the incident. Both, PW2 and PW5, deposed that they had witnessed the incident. They had given detailed version as to what transpired therein and how PW1 sustained injuries and how the culprits ran away later. 4. Learned Magistrate and learned Additional Sessions Judge found the evidence of PWs 1, 2 and 5 trustworthy and reliable. I have scanned the CRRP 402/04 4 evidence of PWs 1, 2 and 5. Though it was contended that there are contradictions and therefore the evidence should not have been relied on, on going through the evidence, I cannot agree with the submission. Evidence of PW1 as to how he sustained injuries was fully corroborated by the evidence of PWs 2 and 5. 5. PW3, the Doctor, deposed that he had examined PW1 and prepared Exhibit P2 wound certificate on 3.6.1995 at about 8.30 p.m. and the incised wounds could be caused by MO1 weapon. The fact that PW1 sustained injuries is proved by the evidence of PW3 and corroborated by Exhibit P2 wound certificate, apart from the evidence of PWs 2 and 5. Evidence of PW3 further shows that the incised wounds noted in Exhibit P2 wound certificate could be caused by using MO1 weapon. As rightly found by the courts below, evidence of PW3 also corroborates the evidence of PW1. Though it was contended that PW3 deposed that the injuries CRRP 402/04 5 noted in Exhibit P2 could be caused, if PW1 had fallen from the scooter and a sharp object has come into contact with that part of the body, where injuries were sustained, from the evidence, it is clear that the injuries were inflicted by the first petitioner and not as a result of any fall, as suggested. 6. On the evidence, prosecution has successfully established that while PW1 was proceeding in his scooter, he was wrongfully restrained by all the petitioners together, in furtherance of their common intention and first petitioner, in furtherance of the common intention, stabbed PW1 with MO1 knife and inflicted injuries. In such circumstances, conviction of the petitioners for the offence under Sections 341 read with Section 34 of Indian Penal Code as well as for the offence under Section 324 read with Section 34 of Indian Penal Code is perfectly legal and regular and warrants no interference. CRRP 402/04 6 7. Then the only question is regarding the sentence. Though, learned Magistrate, finding that the injuries were inflicted deliberately and that too for the reason that PW1, along with others, were opposing the manufacture and sale of illicit arrack, held that deterrent punishment is warranted and awarded rigorous imprisonment for one year each for the offence under Section 324 read with Section 34 of Indian Penal Code and simple imprisonment for one month each for the offence under Section 341 read with Section 34 of Indian Penal Code. Considering the fact that the incident was in 1996, interest of justice will be met if the sentence is modified to simple imprisonment for six months each for the offence under Section 324 read with Section 34 of Indian Penal Code and a fine of Rs.5,000/- each for the offence under Section 341 read with Section 34 of Indian Penal Code and in default, simple imprisonment for one month each with a direction that on realisation of the fine, CRRP 402/04 7 Rs.10,000/- is to be paid to PW1 as compensation. Revision is allowed in part. Conviction of the petitioners for the offences under Section 324 read with Section 34 of Indian Penal Code and Section 341 read with Section 34 of Indian Penal Code are confirmed. The sentence is modified. Petitioners are sentenced to simple imprisonment for six months each for the offence under Section 324 read with Section 34 of Indian Penal Code and a fine of Rs.5,000/- each and in default, simple imprisonment for one month each for the offence under Section 341 read with Section 34 of Indian Penal Code. On realisation of the fine, Rs.10,000/- is to be paid to PW1 as compensation. All the substantive sentences shall run concurrently. Judicial First Class Magistrate-II, Kottarakkara is directed to execute the sentence. 1st June, 2010 (M.Sasidharan Nambiar, Judge) tkv