IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 Crl.Rev.Pet.No. 3469 of 2008() ------------------------------ CRA.403/2003 of ADDL.SESSIONS JUDGE ADHOC-II, KASARGOD CC.413/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER(S): ACCUSED ---------------------------- 1. VASANTH NAYAK ,S/O. JAYANTHA NAYAK BAREKAL HOUSE, MAIRE VILLAGE, KASARAGOD. 2. NARAYANA NAIK 3. DIVAKARA NAIK S/O. NARAYANA NAIK 4. MOHANA NAIK S/O. NARAYANA NAIK 5. NAVEEN NAIK S/O. NARAYANA NAIK 2 TO 5 ARE R/AT MAIRE, MAIRE VILLAGE, KASARAGOD TALUK. BY ADV. SRI.T.B.SHAJIMON RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PP SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3469 OF 2008 ............................................ DATED THIS THE 31st DAY OF OCTOBER, 2008 ORDER Petitioners are the accused in C.C.413 of 2000 on the file of Judicial First Class Magistrate, Kasargod. They were charged for the offences under Section 447, 427, 323, 324, 341, 294(b), 506(i), 142 and 144 read with 149 IPC. Prosecution case is that PW1, a beedi roller and her husband are in possession of 2.15 acres in R.S.358/2A3 and 359/2AB of Badoor Village assigned in her favour by Special Tahsildar, Land Assignment, Kasargod and on 12.10.1999 at about 8.30 pm, PW1 and her daughter in law were rolling beedies from the varandah of the house and while so, a gang of people, including petitioners trespassed into the property by destroying the fence and tenth petitioner was carrying a petromax and first petitioner was having a knife and second petitioner was having a pick-axe and petitioners 3 to 5 were having sticks in their hands. When PW1 requested them not to cause damages, they encircled her and kicked on her chest. She fell down and then she was beaten with woodden sticks and when the daughter in law obstructed, she was also beaten up. They also caused damages and thereby committed CRRP 3469/2008 2 the offences. Though information was furnished to the police, police did not take action. Therefore a complaint was filed before Superintendent of Police and as no action was taken, a complaint was filed before Judicial First Class Magistrate, Kasargod. Magistrate forwarded the complaint to Badiadka Police under Section 156(3) of Code of Criminal Procedure for investigation. After getting the final report, learned Magistrate took cognizance of the offence. Petitioners appeared and pleaded not guilty. On the side of the prosecution, three witnesses were examined and four exhibits were marked. Petitioners did not adduce any oral evidence. Ext.D1 the deposition of PW3 in another case was marked on their side. 2. Learned Magistrate, on the evidence, found petitioners not guilty of the offences under Section 447, 427, 341, 294(b) and 506(i) of IPC and were found guilty and convicted for the offence under Section 323 and 324 read with Section 149 IPC and also for the offence under Section 143 and 144. Learned Magistrate sentenced each of them to simple imprisonment for six months for the offence under Section 324, two months for the offence under Section 323 IPC, simple imprisonment for one month for the offence under Section 143 IPC and two months for the offence under Section 144 IPC. All the sentences were CRRP 3469/2008 3 directed to be run concurrently. Petitioners challenged the conviction and sentence before Sessions Court, Kasargod in Crl.A.403 of 2003. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction but modified the sentence to a fine of Rs.2000/- each for the offence under Section 324 IPC and a fine of Rs.1000/- each for the offence under Section 323 IPC. No separate sentence was awarded for the offence under section 143 and 144 IPC. On realisation of the fine, Rs.5000/- each was directed to be paid to Pws 1 to 3 under Section 357(1) of Code of Criminal Procedure. Revision petition is filed challenging the conviction and sentence. 3. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that courts below should not have accepted the evidence of Pws 1 to 3 and convicted petitioners when the case is that it was a mob who attacked Pws 1 & 2. It was argued that in the absence of evidence of independent witnesses, courts below should not have accepted the evidence of Pws 1 and 2 and on the evidence it is clear that case was foisted on account of political enmity. 4. On hearing the learned counsel and going through the judgments of courts below, I do not find any illegality in the CRRP 3469/2008 4 conviction or sentence. Though learned counsel argued that there is no evidence to prove that petitioners inflicted the injuries on PW1, Ext.P2 wound certificate proved by the evidence of PW6, the Doctor establish that before expiry of four hours from the time of incident, PW1 was examined by the Doctor, and the following injuries were recorded. i)Swelling and tenderness over dorsum of left hand ii)Swelling and tenderness over right forearm, and iii)Swelling and tenderness over the right hand. 5. Ext.P5 wound certificate with the evidence of PW6, establish that PW2 was also examined by the Doctor and at that time he found a small incised wound on the right and middle of the right forearm and swelling and tenderness of the right forearm. Therefore P2 and P5 wound certificates with the evidence of PW6, the Doctor establish that Pws 1 and 2 sustained hurt as found by courts below. 6. The evidence of Pws 1 to 3 were properly appreciated by the learned Magistrate and learned Sessions Judge. The incident had happened within the residential compound of PW1. Evidence of Pws 1 to 3 prove that Pws 1 and 2 were sitting on the verandah of the house and rolling beedies. It is at that time a group of people trespassed into the property and thereafter CRRP 3469/2008 5 inflicted the injuries on Pws 1 and 2. There is no reason to disbelieve the evidence of Pws 1 to 3 which was accepted by both the courts below. The evidence establish that petitioners were members of the unlawful assembly and the common object of the assembly was to inflict injuries on Pws 1 and 2. Evidence also establish that members of the unlawful assembly were armed with deadly weapons and injuries were inflicted on Pws 1 and 2. In such circumstances, conviction of petitioners for the offences is perfectly legal. I do not find any reason to interfere with the conviction. 7. Then the only question is with regard to sentence. Though learned Magistrate sentenced petitioners to simple imprisonment for various periods, learned Sessions Judge took a very lenient view and modified the sentence to fine. In such circumstances, there is no reason to interfere with the fine also. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-