IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 3434 of 2008() ------------------------------ CRA.244/2005 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA,WAYANAD CC.341/2003 of JUDL.FIRST CLASS MAGISTRATE COURT I, SULTHANBATHERY,WAYANAD. ...................................................... REVISION PETITIONER(S): APPELLANTS/ACCUSED: ----------------------------------------------------------------------------- SATHEESAN, S/O.GOPALAKRISHNAN, AGED 28 YEARS, KAVITHA NIVAS, KADAMANCHIRA, KUPPADI, WAYANAD DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------------------------------------------- STATE OFKERLA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/11/2008 ALONG WITH CRL.R.P.NO.3440 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3434 & 3440 OF 2008 =========================== Dated this the 7th day of November,2008 ORDER Petitioner in Crl.R.P.3434/2008 is the 4th accused and revision petitioner in Crl.R.P.3440/2008 is accused 1 and 3 in C.C.341/2003 on the file of Judicial First Class Magistrate, Sulthan Battery. They were tried by the learned Magistrate for the offence under section 394 read with Section 34 of IPC after splitting the case as against the absconding second accused. Prosecution case was that on 27.5.2003 at about 4-45 p.m while Pws.1 to 5 were travelling in Jeep KL-10-C-7507 through Sulthanbathery-Pulpally public road and reached Thazhekuppadi amsom on their way towards Kozhikode, all the accused in furtherance of their common intention obstructed the road and thereafter caused hurt to Pws.1 and 2 and also removed Rs.3000/- from the pocket of PW1 and CRRP3440/08 & 3434/08 2 thereby committed the offence under section 394 read with section 34 of IPC. Revision petitioners pleaded not guilty. Prosecution examined 13 witnesses and marked five exhibits and identified M0s1 and 2. On the side of the defence Ext.D1 was marked and DW1 was examined. Learned Magistrate acquitted petitioners for the offence under section 394 read with section 34 of IPC but found them guilty of the offences under section 323 and 324 read with section 34 of IPC. They were sentenced to undergo simple imprisonment for one year each for the offence under section 324 IPC and six months for the offence under section 323 IPC. Petitioners challenged the conviction before Sessions Court, Kalpetta in Crl.A.244/2005 and Crl.A.3/2006. Crl.A.244/2005 was filed by the petitioner in Crl.R.P.3434/2008 and Crl.R.P. 3/2006 by the other petitioners. Learned Sessions Judge on reappreciation of evidence found that though evidence of PW5 with the wound certificate establish that simple hurt was caused, there is CRRP3440/08 & 3434/08 3 no evidence to prove that the hurt was inflicted using a dangerous weapon and therefore found that conviction for the offence under section 324 IPC is not sustainable. But learned Sessions Judge found that there is conclusive evidence to prove that in furtherance of their common intention, petitioners voluntarily caused hurt and conviction for the offence under section 323 read with section 34 IPC is confirmed. The conviction and sentence as confirmed by the Sessions Judge is challenged in these revisions. 2.Learned counsel appearing for the petitioners were heard. 3. The argument of the learned counsel is that courts below should not have relied on the evidence of the prosecution witnesses and on the evidence it should have been found that the incident did not occur as claimed by them and therefore the conviction is not sustainable. Learned counsel also argued that in any case considering the fact that only simple hurt was caused and imprisonment is not mandatory for the CRRP3440/08 & 3434/08 4 offence under section 323 IPC leniency may be shown and the sentence may be modified to fine. 4. Though learned counsel argued that the evidence do not establish either the common intention or simple hurt voluntarily caused by petitioners, learned Magistrate and learned Sessions Judge appreciated the evidence of PW7 to 10 who are the injured in the case. The evidence of PW5 the doctor establish that Pws. 7 to 10 sustained injuries. On going through the judgments of the courts below, I do not find any reason to interfere with the findings of the courts below that while Pws. 7 to 10 and 11 were proceeding from Sulthan Bathery to Kozhikode in Jeep KL-10C/7507 along Pulpally Public road, in furthernance of the common intention petitioners got PW8 to stop the jeep and thereafter dragged him out of the jeep and caught hold of the collar of the shirt and dragging him out and thereafter inflicted the injuries on Pws. 7 to 10. Evidence establish that in furtherance of the common intention simple hurt was voluntarily caused. In CRRP3440/08 & 3434/08 5 such circumstance, conviction of the petitioners for the offence under section 323 of IPC is perfectly legal. 5. Then the question is with regard to the sentence. Section 323 IPC provides for a sentence of imprisonment which may extent to one year or fine which may extent to 1000/- rupees. Considering the nature of the offence, interest of justice will be met if the sentence is modified to imprisonment till rising of the court and a compensation of Rs.5000/- each and in default simple imprisonment for one month. On realisation of the fine, Rs.2000/- each is to be paid as compensation to Pws.7,8, 9 and 10 as compensation under section 357(1) of the Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006