IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 Crl.Rev.Pet.No. 292 of 1999() ----------------------------- CRA.51/1994 of SESSIONS COURT, KOTTAYAM CC.175/1991 of JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED --------------------- JOY , S/O ANTONY, PARAMTHOTTU VEEDU PAZHAYAPANACKACHIRA BHAGAM ERUMELI, VADAKKU VILLAGE BY ADV. SRI.JOSHI ANTONY RESPONDENT(S): RESPONDENTS --------------- 1. STATE OF KERALA REP. BY THE S.I. OF POLICE MUNDAKAYAM ( COMPLAINANT ) 2. SHIBU @ JAIMON, S/O NARAYANAN PARAYIL VEEDU, PANACKACHIRAKARA ERUMELI VADAKKU VILLAGE ( 2ND ACCUSED) BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 292 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of September, 2009 ORDER The revision petitioner is the 1st accused in C.C. No.175/1991 on the file of the Judicial First Class Magistrate II, Kanjirappally and appellant in Crl.A.51/1994 of Sessions Court, Kottayam. The revision petitioner and the 2nd accused were convicted under secs.323, 324 and 353 IPC read with sec.34 of IPC and are sentenced to undergo rigorous imprisonment for six months each under sec.324 IPC and rigorous imprisonment for six months each under sec.353 IPC and to pay a fine of Rs.500/- each under sec.323 IPC, in default of payment of fine, they were directed to undergo simple imprisonment for two months. The fine amount if released was ordered to be paid to PW1 as compensation. The conviction and sentence of the revision petitioner is confirmed in appeal. The 1st accused has now challenged his conviction and sentence in this revision petition. 2. The case of the prosecution as testified by PW.1/de facto complainant and injured, and Pws.2 and 3 before the trial court Crl.R.P.No.292/1999 Page numbers was this : PW1 and 3 are the then Forest Guards and PW2 is the then Section Forester attached to Erumely Forest Range. On 6/3/1991 they were on patrol duty near the forest quarters at Vandanpathal near Erumely village. At about 10.45 p.m., they heard a sound from the dumping depot near the forest quarters at Vandanpathal in Erumely North village and on reaching there they found the accused persons attempting to take away teak wood from the dumping depot. When they obstructed them, they ran away and PW1 followed them and caught hold of the 1st accused. Immediately the 1st accused took a Malappuram knife and stabbed PW.1 on his chest and the 2nd accused kicked PW1 on the abdomen. PW.1 fell down. He was taken to the Government Hospital, Mundakkayam. PW.5 who was the then Assistant Surgeon attached to the Government Hospital, Mundakkayam, examined PW.1 and issued Ext.P3 wound certificate. PW.6, the then Head Constable attached to the Mundakkayam Police Station, on receipt of information, Ext.P4, from the Government Hospital, Mundakkayam, reached the hospital and recorded the F.I. Crl.R.P.No.292/1999 Page numbers Statement of PW.1- Ext.P1. PW.7, the then Sub Inspector of Police, Mundakkayam, registered a case on the basis of Ext.P1 F.I. Statement. After conducting the investigation he laid the charge before the trial court. 3. The accused persons on appearance before the lower court pleaded not guilty to the charge under Sections 323, 324 and 353 r/w Section 134 of IPC. When questioned under sec.313 Cr.P.C., the accused persons denied the entire incident before the lower court. No defence evidence was adduced. 4. On an appreciation of evidence the trial court found the accused persons guilty of the offences alleged against them, convicted them and sentenced them as aforesaid. The conviction and sentence of the accused persons was confirmed in appeal by the Sessions Court, Kottayam by judgment dated February 18, 1999. The 1st accused has now come up in revision. 5. Counsel for the revision petitioner has argued that the lower court went wrong in accepting the evidence of Pws.1 to 3 who are official witnesses and that therefore on that ground itself the accused Crl.R.P.No.292/1999 Page numbers persons should have been acquitted. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 7. I have gone through the evidence of Pws.1 to 3. The trial court as well as the lower appellate court has chosen to believe their evidence. I find no reason to disbelieve their evidence and come to a different conclusion. No serious discrepancies or inconsistencies were brought out in their cross-examination to discredit their evidence. An attempt was made during their cross examination to show that PWs 1 to 3 would not have identified the assailants as there was no sufficient light at the place of the occurrence. There is no substance in the above contention. The accused persons were previously known to PWs 1 to 3. Further they testified that there were sufficient light to identify them. Even before the doctor PW1 has stated the name of the first accused. It is true that Pws.1 to 3 are official witnesses. But there is no Crl.R.P.No.292/1999 Page numbers rule of law that the evidence of official witnesses should not be believed. It is settled law that evidence of official witnesses can be believed if they are found credible and trustworthy. The trial court as well as the appellate court found their evidence credible and trustworthy. I find no grounds to hold otherwise. No other points were argued before me. Taking into consideration of all these facts, I feel that the trial court as well as the appellate court is justified in accepting the evidence of PWs 1 to 3 and find the revision petitioner guilty of the offence punishable under secs.323, 324 and 353 IPC read with sec.34 of IPC. I find no illegality or error in the judgment of the trial court as well as that of the appellate court. Therefore the conviction of the revision petitioner by the trial court under secs.323, 324 and 353 IPC read with sec.34 of IPC which is confirmed in appeal is upheld 8. As regards the sentence, the learned counsel for the revision petitioner produced medical certificate to show that the revision petitioner is suffering from Asthma and is undergoing treatment. Learned Public Prosecutor pointed out that Crl.R.P.No.291/1999 filed by the second accused in this case is dismissed by this court and that it Crl.R.P.No.292/1999 Page numbers is not proper to reduce the sentence of this revision petitioner in this revision petition. Taking into consideration the fact that the revision petitioner is suffering from Asthma , I feel that the substantive sentence imposed by the lower court can be reduced to three months. In the result the revision petition is allowed in part. The conviction of the revision petitioner by the trial court which is confirmed in appeal under Sections 323, 324 and 353 IPC read with sec.34 of IPC is upheld. The sentence is modified to the effect that he is sentenced to undergo rigorous imprisonment for three months each under Section 324 IPC and under Section 353 IPC . The substantive sentence imposed shall run concurrently. Sentence of fine imposed under Section 323 of IPC is maintained. His bail bounds are cancelled. He shall surrender before the trial court on or before September 30, 2009 to suffer the sentence. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.292/1999 Page numbers Crl.R.P.No.292/1999 Page numbers