IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 CRL.REV.PET.NO. 2793 OF 2009() ------------------------------------------- CRA.883/2004 OF ADDL.SESSIONS COURT, PARAVUR CC.1170/2001 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: -------------------------------------------------------------- 1. RAJESH, AGED 26 YEARS, S/O.VIJAYAN, MOOLANKUDY HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE 2. SALAM, AGED 24 YEARS, S/O.CHANDRAN, CHAKKUMMASSERY HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE. 3. BHOOBHESH, S/O.AYYAPPAN, PINDANIPARAMBIL HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE. 4. SUNIL, S/O.THANKAPPAN, THEVADATHUPARAMBIL, KURUMASSERY, PARAKKADAVU VILLAGE. 5. PRAVEEN, S/O.SASIDHARAN, KOKKAMPADATH HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE. 6. DEVADAS, AGED 32 YEARS, S/O.KUTTAPPAN, CHULLYIL HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE. 7. SHIJU, AGED 25 YEARS, S/O.GOPALAKRISHNAN, PINDANIPARAMBIL HOUSE, KURUMASSERY, PARAKKADAVU VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2793 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge, North Parur in Crl. Appeal No.883 of 2004 confirming conviction and sentence of petitioners. Petitioners, seven in number faced trial in C.C.No.1170 of 2001 of the court of learned Judicial First Class Magistrate-, Aluva, for offence punishable under Sections 143, 147, 148, 341, 323 and 324 read with 34 of the Indian Penal Code (for short, “the IPC”). Case is that on 1.1.2001 at about 2.00 a.m. while P.Ws.1 to 3, brothers were traveling in a car and reached the scene of occurrence they found fire set up on the road and when they stopped the car and enquired, petitioners beat on the car and assaulted P.Ws.1 to 3 with stick. Petitioner No.1 is stated to have assaulted P.W1 with stick while petitioner Nos.2 and 3 are stated to have assaulted P.Ws.2 and 3 with sticks. According to the prosecution P.W1, himself a doctor gave first aid to P.Ws.2 and 3 and himself went to the Little Flower Hospital, Angamaly on the same day at 11.25 a.m. He was examined by P.W4., who issued Ext.P2, wound certificate. It is revealed that P.W.1 had suffered lacerated wound and contusions. P.Ws.1 to 3 gave evidence regarding the alleged incident and CRL. R.P. No.2793 of 2009 -: 2 :- identified petitioners as the assailants. First information regarding the alleged incident was given by P.W1. That was recorded by P.W.5 who registered the case. 2. It is contended by learned counsel that first information was lodged only after eight days of the alleged incident. Further contention is that there is no proper identification of the assailants. 3. It is true that though the alleged incident was on 1.1.2001 Ext.P1, first information was given only on 9.1.2001. P.W1 has an explanation for that – he stated that he was not aware of the name and addresses of the assailants and hence he enquired about that, got name and addresses of assailants and gave first information. Exhibit P2, wound certificate of P.W.1 shows that he was examined by P.W4 on the date of the incident at 11.25 a.m. At that time P.W.1 had a history of assault as the cause of injury. Exhibit P2 corroborates the evidence of P.Ws.1 to 3 regarding P.W1 sustaining injury on 1.1.2001. In that circumstance mere delay in giving first information is not by itself is fatal. 4. So far as identity of petitioners is concerned, P.Ws.1 to 3 have identified petitioners as the assailants. It is true that according to P.Ws.1 to 3 they had no previous acquaintance with petitioners CRL. R.P. No.2793 of 2009 -: 3 :- and P.W1 would say that he had enquired with the local people who had given name and addresses of petitioners. Going by the evidence of P.Ws.1 to 3 there were other persons at the place of occurrence at the relevant time. Learned counsel took me through the evidence of P.Ws1 to 3. On going through the evidence of P.Ws.1 to 3 I have no reason to disbelieve the identification of the petitioners made by P.Ws.1 to 3. Conviction therefore does not require interference. 5. What remained for consideration is whether sentence awarded is excessive. Learned magistrate has imposed imprisonment for various periods on petitioners. It is requested that leniency may be shown to petitioners. 6. It is seen that the accident occurred in the New Year eve. Even evidence of P.Ws.1 to 3 would show that petitioners and others were making merry on the public road. There is no case of any other motive for the incident. Though P.Ws.2 and 3 also suffered injury there is no evidence as to the nature of injury suffered by them. A further fact to be noted is that petitioners were all in the age group of 25 years during the relevant time. It is not shown that they are involved in any other offence before or after this incident. In the circumstances instead of sending them behind bars they must be CRL. R.P. No.2793 of 2009 -: 4 :- given an opportunity to mend their ways. I am satisfied that simple imprisonment till rising of the court and sentence of fine are sufficient in the ends of justice. Resultantly, this revision petition is allowed in part to the following extent: (i) While retaining the conviction of petitioners for the offence found against them substantive sentence awarded to them is modified as simple imprisonment till rising of the court. (ii) Each of the petitioners are also sentenced to pay fine of Rs.500/- for each of the offence under Secs.143, 145, 148, 341 and 323 IPC and in default to undergo simple imprisonment for two weeks each under each count. (iii) Each of the petitioners are sentenced to pay fine of Rs.2,000/- for the offence under Sec.324 and in default to undergo simple imprisonment for one month each. CRL. R.P. No.2793 of 2009 -: 5 :- (iv) Default sentence shall run consecutively. (v) Out of the fine if realised Rs.2,000/- shall be given to P.W1 and Rs.1,000/- each to P.Ws.2 to 3 by way of compensation. Petitioners are granted time till 30.10.2009 to deposit fine in the trail court. They shall appear in the trial court on 31.10.2009 to receive the sentence. Until then execution of warrant if any against petitioners will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv