IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 1077 of 2003() ---------------------------------- SC.56/2001 of SESSIONS COURT, MANJERI .................... APPELLANT/ACCUSED --------------------------------- 1. MUNDOEN MAMMUNNI S/O. ALIKUTTY, KANATHUMKUNDU, MUTHUVALLUR AMSOM. 2. MUNDODEN MOIDEEN, S/O. MANNUNNI, KANATHUMKUNDU, MUTHUVALLUR AMSOM. 3. MUNDODEN VEERAN, KANATHUMKUNDU, MUTHUVALLUR AMSOM. BY ADV. MR.P.VIJAYAKUMAR MR.C.G.SHISHEER MR.RENJITH B.MARAR RESPONDENTS/COMPLAINANTS ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DY.SUPERINTENDENT OF POLICE, MALAPPURAM. R1 & R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1077 OF 2003 ------------------------------ Dated this the 19th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence in S.C.No.56/2001 of the Sessions Judge, Manjeri. The accused were charge sheeted for the offences under Section 324 read with 34 of IPC and Section 3 (1)(x) of SC/ST (PA) Act, 1989. The trial court, on appreciation of the materials, found the accused guilty under Section 324 of the IPC and sentenced them to pay a fine of Rs.750/- and in default, S.I for two weeks each and to pay an amount of Rs.1,000/= as compensation to PW1 from the amount realised. The brief facts necessary would reveal that on 21.6.1997 while Pws 1 to 2 were working in a paramba which is alleged to be belonging to CW7, the accused came there and abused them by calling their caste name and thereafter started pelting stones, as a result of which, PWs 1 and 2 sustained injuries. 2. In the trial court, Pws 1 to 10 were marked. Exts.P1 to 2 CRL.A.NO.1077/03 P11, D1 to D3 and MO1 were marked. The trial court found the accused guilty accepting the evidence of Pws 1 to 4. The learned counsel for the appellants would contend that the materials are totally lacking and there is no evidence to convict the accused under section 324 of IPC. I had gone through the evidence of Pws 1 to 4. PW1 is one Sankarankutty. He had deposed before the court that he belongs to Cheruma caste and that the accused belongs to Muslim community. According to him, on 21.6.1997 at about 3.3o p.m while he along with Pws 2 and 3 were working in Kunnathuparamba, the accused came running there and abused them by calling their caste name and later pelted them with stones and when they ran to escape, they were chased and again pelted with stones. According to him, thereafter he went to the house of CW7 and thereafter visited the hospital. Though he had been cross examined at length, I do not find any material contradictions in his evidence. He is very clear and cogent how the stones were pelted on them. 3. PW2 is the another injured. He had also deposed in the 3 CRL.A.NO.1077/03 very same line and it is true that he has given a wrong date but subsequently corrected. He had deposed before the court that A2 and A3 pelted stones on PW1 and hit on his right hand back and on the buttox. The stones pelted by A1 hit on PW2 as well. He has been cross examined and I do not find anything to discredit his evidence in that regard. PW3 was a person who was working along with Pws 1 and 2 a little away from there, where the two persons were working. He had also deposed before the court that the accused came there uttering abusive words and had pelted stones and had chased them and again pelted PWS 1 and 2 with stones. The cross examination had not yielded anything to discredit the evidence of this witness as well. PW4 is an independent witness. He had identified A1 to A3 and submits that he knows PW1 to PW3 also. According to him, while he was coming back from his sister's house, he heard a hue and cry and found that A2 and A3 abusing and pelting stones on Pws 1 and 2. He has been cross examined and he had denied the suggestion that he is a henchman of CW7 and giving false evidence in 4 CRL.A.NO.1077/03 the case. His evidence also appears to be trustworthy. PW5 is the doctor and the doctor had deposed that the injuries found on Pws 1 and 2 can be caused on account of the stones pelted on them. So, there is concrete materials before the court to establish the facto. It has to be remembered that there is some fight between CW7 and A1 and others and there are series of litigations and so anybody interfering with the possession of A1's property will not be liked by him and therefore the prosecution case that they made a hue and cry and wanted to drive away PWs 1 to 3 from the place of incident is quite believable. But one is not expected to take the law into their own hands and without leaving it to the law enforcing authority. So far as the common intention is concerned, there is a common intention that they wanted these persons to be driven away from the property which according to them did not belong to CW7 at all. I am informed that the first accused is no more now. The learned counsel for the appellant would contend before me that the accused are in a very poor financial circumstance and they 5 CRL.A.NO.1077/03 had lost very heavily on account of the prolonged litigation and therefore the court should show some indulgence while awarding the punishment. I had also considered the question whether the offence will come under Section 334 which is of a lesser grievous nature. I cannot say Section 334 will apply for the reason that it was not an instant provocation of the things that had happened. When they saw somebody working, which according to them was in their spot they wanted to drive them away and thereby pelted stones on them. So, necessarily it will come under Section 324 of the I.P.C. But the submission of the learned counsel regarding the poor financial position and as they had undergone the trauma of a criminal case for a considerable long time, I am inclined to show them some leniency. So, on an over all analysis of the case, I confirm the finding of the court below regarding the guilt under Section 324 but I am inclined to reduce the fine from Rs.750/= to Rs.300/= and while doing so, the compensation to be awarded also has to be fixed at Rs.600/= in stead of Rs.750/=. 6 CRL.A.NO.1077/03 4. In the result, the Criminal Appeal is disposed of as follows: 1. The finding of guilt under Section 324 is confirmed 2. The accused are sentenced to pay fine of Rs.300 each and on realisation of which, Rs.600/= to be disbursed to the complainant and in default, accused 2 and 3 has to suffer S.I for 7 days. 5. Since the first accused is no more, and as the appeal does not abate against him as a whole, the conviction can be only used for realization of the amount from the legal representatives of the deceased by invoking the provisions under Section 421 of the Cr.P.C. There cannot be any default sentence against the legal representatives of the deceased first accused. The accused are directed to pay the fine on or before 31.8.09, failing which steps can be taken by the lower court to execute the sentence. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.1077/03 8 CRL.A.NO.1077/03