IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH MAY 2010 / 16TH VAISAKHA 1932 Crl.Rev.Pet.No. 1494 of 2010() ------------------------------ CRA.380/2008 of ADDL. SESSIONS COURT (ADHOC)-II, PALAKKAD CC.241/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER: APPELLANT/ACCUSED NO.1: -------------------------------------------- SATHEESH, S/O.PAKAN, KALLEKKAD VEEDU, KUTHANUR, KUZHALMANNAM, PALAKKAD DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT: RESPONDENT/COMPLAINANT; -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLICL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH,J --------------------------------------- Crl.R.P.NO. 1494 OF 2010 ------------------------------------------ Dated this the 6th day of May, 2010. O R D E R Petitioner along with six others were tried by the learned JFM- III, Palakkad for offences punishable under Sections 143,147, 341, 323, 294(b), 325 and 355 r/w Sec.149 of the Penal Code. Charge is that on 4.3.2006 at about 1.45 p.m petitioner and A2 to A7 formed unlawful assembly, committed rioting at Kairali Hotel, Palakkad wrongfully restrained PW1 and voluntarily caused hurt to PWs1 and PW2 by beating and hitting them with hand and beating them with chappal. Learned Magistrate found petitioner and A2 to A7 guilty of all offences except Secs.325, 294(b) and 355 r/w 149 IPC and sentenced them to undergo simple imprisonment for various periods. They preferred Crl.Appeal No.380/2008 which was disposed by the learned Addl. Sessions Judge (Adhoc-II, Palakkad). Conviction and sentence of A2 to A7 were set aside 2 and they were acquitted of all the charges found against them by the learned Magistrate on the ground of lack of evidence regarding proper identification of A2 to A7. Evidence of identification of petitioner as one of the members of the unlawful assembly was accepted by the appellate court and his conviction and sentence were confirmed. That is, under challenge in this revision. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned counsel contends that there is no reliable evidence to prove involvement of petitioner in the alleged incident and at any rate appellate court having found that A2 to A7 are not guilty, conviction of petitioner for offences punishable under Secs.143 and 147 as also, r/w Sec.149 of the Penal Code is alleged. According to the learned counsel, there is no evidence of any overt act of the petitioner and hence he should have been acquitted of the 3 charges found against him. Learned Public Prosecutor on the other hand support the judgment of the appellate court as regards the involvement of petitioner. PW1 is a Police Constable and had been to near the place of occurrence to attend some function. He along with PW2 went to the hotel in question and consumed beer. Case of PW1 is that in the bill (Ext.P2) given by petitioner (employed in the hotel) there was some mistake over which there was exchange of words. Later, petitioner corrected the bill and thereon PW1 paid the charges and tip to the petitioner. When PWs 1 and 2 got out of the hotel, petitioner and A2 to A7 surrounded them and assaulted PWs. 1 and 2. PW2 gave evidence in similar line. PW3 is an independent witness and claimed to have seen PW1 and PW2 at the place of occurrence. PW2 was restrained and assaulted by the petitioner and other accused. PW8 4 is yet another independent witness who saw certain persons assaulting PWs 1 and 2. PW5, Medical Officer issued Exts.P4 and P5 wound certificate. PW7 issued Ext.P7, discharge certificate concerning treatment given to PW1. PW9 is the Asst. Sub Inspector who recorded Ext.P8, FIR and Ext.P3 scene mahazar. Ext.P2 Bill given by the petitioner to PW1 was seized by PW9 as per Ext.P6 Seizure Mahazar attested by PW6. Contention advanced by the learned counsel is that in so far as A2 to A7 are acquitted for want of identification conviction of petitioner for offences punishable under Secs.143, 147 and r/w Sec.149 of the Penal Code cannot be sustained. But, here is a case where the appellate court also found in favour of unlawful assembly involving petitioner and others but, evidence of prosecution witnesses regarding identification of A2 to A7 was not accepted. 5 That does not mean that the appellate court found against unlawful assembly involving the petitioner. Position may be different if the case of prosecution regarding unlawful assembly is not accepted. Hence the contention that petitioner cannot be convicted for offences under Sec.143 and 147 and r/w 149 of the Penal Code cannot be sustained. The next argument is that there is no evidence of any overt act on the part of petitioner. In chief examination PW1 stated that 7 persons including petitioner surrounded himself and PW2 and assaulted them in cross examination there is definite statement about petitioner assaulting him. It is settled position of law that once unlawful assembly is proved and it is also proved that members of the unlawful assembly indulged in criminal case in prosecution of the common object that unlawful assembly, it is not necessary for 6 prosecution to prove overt acts of each of the members of that unlawful assembly. Section 149 of the Penal Code would take care of such situation. Therefore, even if it is not shown that the petitioner also had assaulted PW1, in the light of the evidence that the members of the unlawful assembly assaulted PWs 1 and 2 in prosecution of its common object and petitioner was a member of that assembly, petitioner cannot escape liability in view of S.149 of the Code. That apart, there is evidence of PW1 about overt act on the part of petitioner. That is corroborated by Exts.P4 and P5 and Ext.P7. As such, the first appellate court is justified confirming conviction of petitioner for offences punishable under Secs.143, 147, 341 and 323 r/w Sec.149 of the Code. I find no infirmity in the finding of the courts below regarding involvement of petitioner. What remained is whether sentence awarded to the petitioner 7 is excessive. Concededly, it is not a case of previous enmity leading to the incident. The incident followed dispute regarding Ext.P2 bill given to PW1. It is not disputed that PWs 1 and 2 had taken beer from the Hotel in question. Petitioner is not shown to be involved in any other case. In these circumstances, I am inclined to think that sentence of imprisonment till rising of the court and compensation to PWs 1 and 2 is sufficient. It is seen from medical evidence that PW1 had a perforation in his left ear. True, courts below did not convict petitioner for offence Sec.325 of the Code for the reason that Medical evidence revealed that such perforation was due to infection . But in considering quantum of compensation payable to PW1, that aspect is required to be considered. Considering these aspects, I hold that a sum of Rs.7,500/- will be sufficient compensation to PW1. The injury suffered by PW2 is simple in nature. Hence he shall be given 8 compensation of Rs.1,000/-. Resultantly, this revision petition is allowed in part in the following lines; While retaining conviction of petitioner as confirmed by the learned Addl. Sessions Judge, sentence imposed on petitioner is modified as simple imprisonment till the rising of the court for all the offences found him. Petitioner is directed to deposit in the trial court Rs.7,500/- (Rupees Seven thousand and five hundred only) for payment to PW1 and Rs.1000/- (Rupees One thousand only) for payment to PW2 within three months from this day failing which petitioner shall undergo simple imprisonment for three months for non payment of compensation of Rs,7,500/- and one month for non payment of the compensation for Rs.1,000/- . Petitioner shall appear in the trial court on 10.8.2010 and receive the sentence. Until then 9 execution of warrant if any against petitioner will stand in abeyance. THOMAS P JOSEPH,JUDGE. pm