IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Crl.Rev.Pet.No. 1160 /2001 -------------------------------------- [CRA.65/1998 OF III ADDL.SESSIONS COURT, KOLLAM CC.533/1994 OF THE COURT OF THE MUNSIFF MAGISTRATE, PARAVUR] REVN. PETITIONER(S): --------------------------------- 1. BABU, S/0. PODIYAN, KAZHUVELI KIZHAKKUMKARA, CHARUVILA VEEDU KALLUVATHUKKAL VILLAGE. 2. RAJU, S/O. GOPALAKRISHNAN, KAZHUVELI KIZHAKKUMKARA, CHARUVILA PUTHEN VEEDU, KALLUVA BY ADV. SRI.R.KRISHNA RAJ ADV. SRI.A.SHANAVAS KHAN RESPONDENT(S): ------------------------ STATE REPRESENTED BY THE DISTRICT GOVERNMENT PLEADER, KOLLAM REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK P.S. GOPINATHAN, J. ------------------------- CRL.RP. NO.1160 OF 2001 -------------------------------- DATED THIS THE 27TH DAY OF OCTOBER 2009 O R D E R ----------- Revision petitioners are accused 1 and 2 in C.C No. 533 of 1994 on the file of the Munsiff – Magistrate, Paravoor. The Sub Inpector of Police, Parippally, in Crime No. 146/94 of the Parippally Police station prosecuted the revision petitioners alleging offence under Section 324 r/w 34 IPC with an allegation that at 9.30 pm on 14-9-1994 the 1st and 2nd revision petitioner, inflicted hurt to PWs 1 and 5 with sword and stick which are deadly weapons. 2. Due to the injury sustained, PWs 1 and 5 were taken to the District Hospital, Kollam. Intimation was conveyed to the Station House Officer, Parippally Police station. PW6, an Head Constable on getting instruction rushed to the hospital and recorded the First Information Statement. Ext.P3 is the First Information Statement given by PW5. Returning to the Police Station a case was registered by PW6. PW7, the Sub Inspector after due investigation laid a chargesheet against the revision petitioners before the trial court for offence u/s 324 r/w 34 IPC. In response to the process, revision petitioners entered CRL.RP. NO.1160 OF 2001 2 appearance. After hearing both sides a charge for offence under section 324 r/w. 34 of IPC was framed. Since the revision petitioners pleaded not guilty they were sent for trial. 3. On the side of the prosecution, PWs1 to 7 were examined. Exts.P1 to P6 were marked. After closing the evidence for the prosecution, the revision petitioners were questioned under section 313 of the Code of Criminal Procedure. They denied the incriminating evidence. No defence evidence was let in. The trial court on appraisal of the evidence arrived a conclusion of guilty. Consequently the revision petitioners were convicted and sentenced to rigorous imprisonment for three months. 4. Aggrieved by the above conviction and sentence, Criminal appeal No. 65/98 was preferred before the Sessions Judge, Kollam. The 3rd Addl. Sessions Judge, Kollam to whom the appeal was made over, by judgment dated 24-5-2001 dismissed the appeal. 5. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. CRL.RP. NO.1160 OF 2001 3 6. Having heard the learned counsel for the revision petitioners and perusing the judgments of the courts below, I find that PW1, one of the injured had turned hostile. PW1 is none other than the father of the 1st accused. The 2nd accused is the son of the sister of PW1. It is for obvious reasons, PW1 turned hostile to the prosecution. PW2, a neighbour, who was examined as a witness to prove the occurrence also turned hostile. But PW5 had supported the prosecution. Believing the testimony of PW5 corroborated by Ext.P3 First Information Statement, the trial court arrived a conclusion that the revision petitioners assaulted PWs1 and 5 by inflicting injury with sword and stick. Evidence of PW4, the Medical Officer attached to the District Hospital, Kollam who examined PW1 and PW5, and issued Ext.P1 and P2 would certificates also supports the prosecution regarding the injuries sustained to PWs 1 and 5. The evidence of PW4 coupled with Exts. P1 and P2 would show that PW5 had an incised would 8 x 6 x 3cms, cutting the muscle on the posterior aspect of lower 3rd left leg. Contusion of 2 x 0.5 below the left eye brow. PW1 had incised would 4 x 1cms cutting the cartilege of left ear and CRL.RP. NO.1160 OF 2001 4 contusion 6 x 4cms left side of forehead. Injuries were alleged to have been caused with a sword. Ext.P3(a) and P3(b) body note prepared by PW6 also supports the above evidence. 7. The defence case is that PW5 was under the influence of alcohole and on his way home he fell down with a liquor bottle and sustained injuries . Having due regard to the nature of the injuries sustained, the defence suggestion is not at all believable. The courts below rightly rejected the defence version and believed the evidence of PW5. The revision petitioner could not point out any error, illegality or impropriety committed by courts below in concurrently finding against the revision petitioners. The evidence of PW5 coupled with Exts. P1 to P3 and the evidence of PW4 instil confidence. In the above circumstances, I find that the conclusion of guilt concurrently arrived by the courts below is unassailable. 8. The judgment of the trial court would show that revision petitioners were aged 19 and 23 years respectively on the date of incident. A report of the Probation Officer was called for. The Probation Officer had reported that the revision CRL.RP. NO.1160 OF 2001 5 petitioners belong Vedar community, Scheduled Tribe and has no permanent source of income and that they are not literate and that no other bad antecedents were reported. The Probation Officer recommend to release them under Section 4(1) and (3) of the Probation of Offenders Act. 9. Having heard the learned counsel for the revision petitioners and public prosecutor, I find no reason to reject the recommendation of the Probation Officer. It would be appropriate to release the petitioners under section 4(1) of the Probation of Offenders Act instead of sentencing them at once. 10. In the result, the revision petition is allowed. While confirming the conviction , the sentence is set aside. The revision petitioners, instead of sentencing them at once, shall stand released under Section 4(1) of the Probation of Offeders Act on executing a bond for Rs. 10,000/- with two solvent sureties each for like sum to the satisfaction of the trial court for a period of two years with an undertaking to appear before the trial court to receive the sentence as and when called upon. In the meantime the revision petitioners shall keep peace, good CRL.RP. NO.1160 OF 2001 6 behaviour and conduct. The revision petitioners shall a pay a sum of Rs. 3,000/- each as compensation to PW5. It is reported that PW5 is no more. In the event, PW5 is no more compensation shall be paid to the legal heirs. One month time is granted to deposit the compensation amount. P.S. GOPINATHAN JUDGE PKK