IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.Rev.Pet.No. 750 of 2002() ----------------------------- CRA.8/1998 of ADDL.SESSIONS COURT (FAST TRACK), ALAPPUZHA CC.222/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED ---------------------------- 1. RAJAPPAN, S/O.KESAVAN, THAIPARAMBIL VEEDU, ALISSERY WARD, ALAPPUZHA. 2. HARSHAN, S/O.RAJAPPAN, THAIPARAMBIL VEEDU, ALISSERY WARD, ALAPPUZHA. 3. SHAJI, S/O.RAJAPPAN, THAIPARAMBIL VEEDU, ALISSERY WARD, ALAPPUZHA. 4. PUSHPAN, S/O.GOPALAN, THAIPARAMBIL VEEDU, ALISSERY WARD, ALAPPUZHA. 5. RETNAMMA, D/O. BHAVAN, THAIPARAMBIL VEEDU, ALISSERY WARD, ALAPPUZHA. 6. CHELLAMMA, D/O.BHAVANI, THAIPARAMBIL VEEDU, ALIASSERY WARD, ALAPPUZHA. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): RESPONDENT/COMPLAINANT:- --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURTOF KERALA, DERKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P. No. 4383/2002 in Crl.R.P. No. 750/2002 Dismissed 17-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 750 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 17th day of November, 2009. O R D E R Revision petitioners 1 to 6 are the accused in C.C.No.222 of 1993 of Judicial Magistrate of First Class-I, Alappuzha and appellant in Crl.Appeal No. 8 of 1998 of the Addl. Sessions Court (Fast Track), Alappuzha. They were convicted under sections 143 and 427 read with section 149 IPC and sentenced to pay fine of Rs.500/- each for the offence under section 143 IPC, in default to udnergo simple imprisonment for trwo weeks each and to pay fine of Rs.1,000/- each, in default, to undergo simple imprisonment for one month each under section 427 IPC by the learned Magistrate. On appeal, the lower appellate court confirmed their covniction and sentence. The accused persons now come up in revision challenging their conviction and sentence. 2. The case of the complainant as shaped in evidence before the trial court was that on March 12, 1993 the accused persons formed themselves into an unlawful assembly in prosecution of their common object, demolished a portion of the newly constructed southern compound wall of the property of the de facto complainant to a length Crl.R.P. 750/02 2 of 10.30 metres, causing a loss of Rs.2,000/- to the de facto complainant and that thereby committed offences punishable under sections sections 143, 147 and 427 read with section 149 IPC. 3. The accused persons on appearance before the trial court pleaded not guilty to the charge under sections 143, 147 and 427 read with section 149 IPC. PWs.1 to 4 were examined and Exts.P1 and P2 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C. by the learned Magistrate, the accused persons denied the incriminating evidence agaisnt them. No defence evidence was adduced. 4. The learned Magistrate on an appreciation of the evidence found the revision petitioners guilty of the offences punishable under sections 143 and 427 read with section 149 IPC, convicted them thereunder and sentenced them as aforesaid. The learned Magistrate found them not guilty of the offence under section 147 IPC. On appeal by the accused, the lower appellate court confirmed their conviction and sentence. Now the accused persons have come up in revision challenging their conviction and sentence. 5. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. Crl.R.P. 750/02 3 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under sections 143 and 427 read with section 149 IPC by the trial court which was confirmed in appeal by the lower appellate court can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 7. PWs.1 to 4 were examined and Exts.P1 and P2 were marked on the side of the prosecution to prove the case. PW1 is the de facto complainant. He testified in terms of the prosecution case.PWs.2 and 3 the alleged eye witnesses turned hostile and did not support the prosecution. PW4 is an attestor of scene mahazar Ext.P2. 8. The counsel for the revision petitioners argued that the uncorroborated version of PW1 cannot be believed, as he was in enmical terms with the accused persons. He also pointed out some minor discrepancies in his evidence. But the trial court as well as the appellate court analysed his evidence in detail and chosen to believe his evidence. I find no reason to come to a different conclusion. Ext.P2 scene mahazar also shows demolition of compound wall. 9. It is also pointed out by the learned counsel for the revision petitioners that the Investigating Officer in this case was not examined before the trial court which causes much prejudice to the accused Crl.R.P. 750/02 4 persons. I find no susbtance in the above contention. The Investigating Officer was not examined by the prosecution, as his presence could not be procured. However, non-examination of Investigating Officer did not cause any prejudice to the accused. For all these reasons, I am inclined to hold that the trial court as well as the lower appelalte court is perfectly justified in believing the evidence of PW1 and in finding that the accused have committed offences punishable under sections 143 and 427 read with section 149 IPC. Therefore, I confirm the conviction of the revision petitioners under sections 143 and 427 red with section 149 IPC. 9. As regards the sentence, the trial court imposed a fine of Rs.500/- each, in default to undergo simple imprisonment for two weeks under section 143 IPC and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for one month each under section 427 IPC. I find no reason to reduce the sentence. 10. In the result, confirming the conviction and sentence of the revision petitioners, this revision petiton is dismissed. One month's time is granted for payment of fine. P.Q.BARKATHALI, JUDGE mn Crl.R.P. 750/02 5 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 750 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 17 th day of November, 2009.