IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 Crl.Rev.Pet.No. 1578 of 2003() ------------------------------ CRA.1/1996 of ADDL. SESSIONS COURT (ADHOC-I), PATHANAMTHITTA CC.288/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... REVN. PETITIONER(S)/3RD APPELLANT/3RD ACCUSED: --------------------- SURESHKUMAR, S/O.RAMAKRISHNAN, KALATHIL HOUSE, KUMARAMPEROOR, VADAKKEKARA MURI, NEELIPILAVU, SEETHATHODU, CHITTAR. BY ADV. SRI.N.V.KURIAKOSE SRI.T.K.DEVARAJAN SRI.DETHI K.THOMAS RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/08/2010 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1578 OF 2003 --------------------------------------------- Dated 17th August, 2010 O R D E R Third accused in C.C.288/1993 on the file of Judicial First Class Magistrate, Ranni filed this revision challenging his conviction for the ofence under Sections 341 and 324 read with Section 34 of Indian Penal Code. Prosecution case was that on 23/3/1993 at about 5.30 p.m PW1, the injured while walking along the way near to the house of the first accused, asking whether he caused damage to her rubber tree, she pelted stones at PW1. It hit on his left shoulder causing hurt. When first accused took another stone, PW1 tried to run away. The petitioner then caught hold of PW1 and CRRP 1578/03 2 wrongfully restrained him. Second accused, son of the first accused, then a student, took rubber tapping knife and inflicted hurt on the stomach of PW1 with the knife and all the accused thereby committed the offences under Sections 341 and 324 read with Section 34 of Indian Penal Code. All the accused pleaded not guilty. Prosecution examined six witnesses and marked seven exhibits. On the side of the accused, DW1 was examined. Learned Magistrate on the evidence found all the accused guilty. They were convicted for the offences. As second accused was aged only 19 years and was a student, learned Magistrate released him under Section 4 of Probation of Offenders Act and sentenced the petitioner and first accused to rigorous imprisonment for six months each for the offence under Section 324 of Indian Penal CRRP 1578/03 3 Code and to rigorous imprisonment for one month each for the offence under Section 341 read with Section 34 of Indian Penal Code. Petitioners challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.1/1996. Learned Additional Sessions Judge on re-appreciation of the evidence, set aside the conviction of the first accused and acquitted her. Conviction and sentence of the first petitioner was confirmed. Revision is filed challenging the conviction. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner submitted that first accused stands acquitted and second accused who inflicted the injury on PW1 was released on probation and CRRP 1578/03 4 petitioner who according to the prosecution only wrongfully restrained PW1 alone stands sentenced and learned Magistrate and learned Sessions Judge did not consider the question whether on the facts and circumstances of the case, petitioner could be released on probation or not. It is submitted that considering the fact that the incident was in 1993 and petitioner was not involved in any other offence before or after the incident, he may be released on probation. 4. Learned Public Prosecutor submitted that question of granting probation to the petitioner be decided after calling a report from the District Probation Officer. 5. Though first accused was convicted and sentenced for the offences under Sections 323 and 324 read with Section 34 of Indian CRRP 1578/03 5 Penal Code, learned Sessions Judge on re- appreciation of the evidence acquitted her. Case against the petitioner is that he wrongfully restrained PW1 and second accused who now stands released on probation inflicted the injury on the stomach of PW1 with a rubber tapping knife. Neither learned Magistrate nor learned Sessions Judge considered the question whether the petitioner could be released on probation granting the benefit of the benevolent provisions of Probation of Offenders Act, even though considering his age, second accused was released on probation. As stated earlier, even according to the prosecution petitioner only wrongfully restrained PW1 which enabled the second accused to inflict injury on his stomach. There is no case for the prosecution that petitioner was involved in any CRRP 1578/03 6 other offence. In such circumstances, in the interest of justice, learned Magistrate should have considered the question whether petitioner could be released on bail, especially, when conviction is only for the offences under Sections 324 and 341 with the aid of Section 34 of Indian Penal Code. Hence it is necessary to remand the case to the learned Magistrate to consider the question. Revision is allowed in part. Sentence awarded for the offence under Sections 324 and 341 read with Section 34 of Indian Penal Code is set aside. Judicial First Class Magistrate, Ranni is directed to call for a report on the petitioner from the District Probation Officer. On getting the report, Magistrate shall consider the question whether he could be released either under Section 3 or 4 of the CRRP 1578/03 7 Probation of Offenders Act. Judicial First Class Magistrate, Attingal shall call for a report from the District Probation Officer and decide the said question, after hearing the petitioner and the Assistant Public Prosecutor. Petitioner is directed to appear before the Judicial First Class Magistrate, Ranni on 17/9/2010. M.SASIDHARAN NAMBIAR, JUDGE. uj.