IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 Crl.Rev.Pet.No. 1047 of 2000() ------------------------------ CRA.200/1996 of V ADDL.SESSIONS COURT, ERNAKULAM CC.419/1994 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER: -------------------------- 1. PAUL, S/O.OUSEPH, THENKUZHI HOUSE, PERUMPILLY KARA, NARAKKAL. 2. JOSEPH, S/O.PAUL, DO. DO. DO. 3. ANTONY, S/O.PAUL, DO. DO. DO. 4. BABY, S/O.PAUL, DO. DO. DO. BY ADV. SRI.T.D.ROBIN RESPONDENTS: ---------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SRI.C.M.NAZAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1047 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February, 2008. ORDER Petitioners who were concurrently found guilty and convicted and sentenced under Section 323, 324 and 326 read with Section 34 IPC by the trail court as well as the appellate court have preferred this revision petition. The prosecution case in brief was that on April 4, 1991 at about 12.45 p.m. the accused had in furtherance of their common intention and due to their previous enmity towards Pws.1, 2 and 4 had assaulted and inflicted injuries on them with a dangerous weapon like stone. The alleged incident took place in the courtyard of Paul, Son of Ouseph in Narakkal Panchayat. Accused No.2 hit Pw.1 with M.O.1 stone just below the left eye and also on the forehead near the right eye inflicting 2 lacerated injuries and tenderness at two places on the face. Accused No.2 had also hit Pw.1 just below eye causing hamatoma and tenderness in 3 regions on the face . Pw.2 had sustained a bleeding nose injury a lacerated injury and swelling and tenderness on the left eye lid. Similarly accused No.1 had also hit Pw.4 with stone just below the left eye causing a crack fracture on the left side of the face apart from tenderness and hamatoma on the forehead, in his right and at apular area left side. The prosecution further alleged that accused 1,3 and 4 had also beaten P2s.1, 2 and 4 with their hands in the course of the alleged incident. Crl.RP.1047./2000. 2 Before the trial court, the prosecution had examined Pws.1 to 8 and Exts.P1 to P9 and M.O.13 are marked. Dws.1 to 3 were examined on the side of the defence and Ext.D1 was also marked. The learned Magistrate on an evaluation of the oral and documentary evidence on record found hat the prosecution had succeeded in proving the charges against the accused. Accordingly they were convicted and sentenced to pay a fine of Rs.500/- under Section 323 and in default o payment of fine they were directed to suffer Simple Imprisonment for 3 months. The accused were also convicted and sentenced to undergo Rigorous Imprisonment for one year under Section 324 and to pay a fine of Rs.2000 under Section 324 IPC. and in default to suffer Simple Imprisonment for 6 months. They were also sentenced to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.2000 under Section 324 IPC. and in default to suffer Simple Imprisonment for 6 months. They were also sentenced to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.2500/- under Section 326 and in default to suffer Simple Imprisonment for 6 months. The substantive sentenced of imprisonment was directed to run concurrently. The accused had challenged the above order of conviction and sentence before the Sessions Court. However the learned Sessions Judge dismissed the appeal confirming the order of conviction and sentence. Hence this revision petition. It is vehemently contended by Sri.T.Robin learned counsel for the petitioners that the courts below were not justified in overlooking the serious infirmities and contradictions in the prosecution case. It is pointed out by the learned counsel that Pw.1 had candidly admitted that Crl.RP.1047./2000. 3 the accused had put up a boundary fence demarcating his property. But it appears that Pw.1 had vaguely contended that the property from which the accused allegedly attempted to cut an arecanut tree belonged to him. But it had come on record that the property in question in which the alleged incident had taken place was purchased by the accused a week after the alleged incident. According to the learned counsel the - had already been - and the petitioners had been put in possession --The document was registered a week after the alleged incident. Anyhow, according to the learned counsel the fact remains that the accused had obtained right over the property though the document was not registered in their name at that point of time. Moreover, the evidence of Pws.1 and 2 had clearly indicated that the accused had been exercising some kine of right over the property from which they cut and removed the trees. There is considerable force in the above contention. It has to be noticed that Pws.1, 2 and 4 had categorically stated before the court that they had been assaulted by the petitioners/accused they had sustained some injuries also. But the case of the prosecution that the accused had hit Pw.1 and 2 with a stone does not appear to have been corroborated by any other evidence. For instance Pw.5 who had examined the 3 injured had not recorded that the injured had told him that they were hit with a stone. What the injured witness had told the Doctor was that they were sustained the injury due to hit. They did not even mention the names of the accused, leave alone that the injuries were caused with a stroke. I have carefully perused the wound certificates Exts.P2, P3 and P4) and also the evidence of Pw.5. Having regard to the nature of the Crl.RP.1047./2000. 4 incident, I am not persuaded to believe accept the contention raised by learned counsel for the petitioner that Pws. 1 and 2 and 4 - being sustained. The - scuffle that followed a clear intervention of Pws.1, 2 and 4 when they were gone to the property on that day in connection with the daily . In my view the fact th the Doctor Pw.5 had not refer to any weapon with which Pws.1, 2 and 4 had been allegedly attacked would do go along way to s how that there was some embellishment in the prosecution case. In that view of the matter I am satisfied that interference is warranted with regard o the finding entered by the two courts below as regards the offence under Section 326 IPC is concerned. Petitioners have already been found guilty under Sections 323 and 324 read with Section 34. Having regard o the totality of the facts and circumstances and the evidence of Pw.1 , 2 and 4 and 5 I am satisfied that the finding of guilt under Section 326 has to be converted into as one under section 324 IPC only. Accordingly confirming the order of conviction passed by the courts below the petitioners the order of sentence I am not satisfied that the petitioners are entitled to some leniency. Therefore while confirming the order of conviction passed by the courts below the sentence imposed on them is modified and reduced. Petitioners are directed to undergo one year's imprisonment imposed on the petitioner under section 324 is modified and reduced and the petitioners are directed to suffer imprisonment for one day. But they shall pay Rs.500/- each as fine and in default they shall suffer Simple imprisonment for 3 months. Under the third charge, the petitioners are convicted and Crl.RP.1047./2000. 5 sentenced under Section 324 IPC and directed to suffer imprisonment for one day and they shall also pay the fine of Rs.5,000/-=== each and in default they shall suffer simple imprisonment for 3 months each. Petitioners shall appear before the trial court on March 17, 2008. On their appearance the learned Magistrate shall ensure that they suffer imprisonment till the rising of the court on that day. on failure of payment of fine, the court shall execute he sentence of the learned Magistrate. Substantive sentence of imprisonment shall be concurrent. Allowed in the above terms. A.K. Basheer Judge. an.