IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.Rev.Pet.No. 981 of 2000(C) ------------------------------------------------- CRA.146/1998 of SESSIONS COURT, THRISSUR SC.89/1996 of I ADDL. ASSISTANT SESSIONS COURT, THRISSUR .................... REVN. PETITIONER/PW2: P.K.ABOOBACKER, VADAKKEKAD, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.T.K.AJITH KUMAR RESPONDENTS/APPELTS & RESPDT-COMPLAINANT/ACCUSED: 1. FAZILUL ALI, S/O VAKAYIL KUNJALAN, VADAKKEKAD VILLAGE, THEKKEKAD KALLUR DESOM. 2. MOHANAN, S/O KORANGATH APPUKUTTAN, VALATHUR VILLAGE, CHEKKITHARA DESOM. 3. GAFUR, S/O VAKAUIL KUNJALAN, VADAKKEKAD VILLAGE, THEKKEKAD KALLUR DESOM. 4. ABOOBACKER, S/O VALIYAVEETTIL MOHHAMED, DO. DO. 5. GAFUR, S/O VAKAYIL MUHAMMED, DO. DO. 6. SHAKKUR, S/O ARAKKAL KURUPPATH KUNJUMUHAMMED, DO. DO. 7. MOIDUTTY, THEKKEPATTAYIL MUHAMMED, DO. DO. 8. STATE OF KERALA REP. BY C.I. OF POLICE, KUNNAMKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R8 ADV.SRI.S.MUHAMMED HANEEFF FOR R1-R5 & R7 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.981 of 2000 -------------------------- ORDER Defacto complainant, who is the injured and examined as PW2 in S.C.No.89/1996 on the file of I Additional Assistant Sessions Court, Thrissur, filed this revision challenging the order of acquittal passed by learned Sessions Judge in Crl.A.No.146/1998. The contention raised in the revision is that learned Sessions Judge has no power to entertain an appeal involving a sentence of imprisonment for more than seven years and therefore, the order of acquittal is illegal. It is also contended that learned Sessions Judge did not consider the prosecution case in the proper perspective and re-appreciation of evidence was not proper and on the evidence, learned Sessions Judge should not have interfered with the conviction. 2. Prosecution case is that the eleven accused formed themselves into an unlawful assembly on CRRP 981/00 2 18.1.1995 at about 1.15 p.m. and in furtherance of their common object, trespassed into the house of PW2, armed with dangerous weapons like iron rod and wooden stick and with the intention to cause the death of PW2, first petitioner inflicted a blow on the head of PW2 with MO1 iron rod and second petitioner hit him with MO2 wooden stick and the other accused threw stones at the house of PW2 and caused damage to the house and also caused injuries to PW3, a relative and thereby committed the offences under Sections 143, 147, 148, 452, 324 and 304 read with Section 149 of Indian Penal Code. Accused pleaded not guilty. 2. Learned Assistant Sessions Judge, on the evidence of PWs 1 to 13, Exhibits P1 to P13 and Mos 1 and 2 and DWs 1 to 3 and Exhibits D1 to D6, on the side of the defence, convicted accused 1 to 3, 6 to 8 and 11, except the accused, who were absconding, for the offences under Sections 143, 147, 148, 452, 324 and 307 read with Section 149 of CRRP 981/00 3 Indian Penal Code. They were sentenced to rigorous imprisonment for seven years and a fine of Rs.5,000/- each and in default, simple imprisonment for one year for the offence under Section 307 read with Section 149 of Indian Penal Code. No separate sentence was awarded for the offences under Sections 143 and 147 of Indian penal Code. They were sentenced to simple imprisonment for six months each for the offence under Section 452 read with Section 149 of Indian Penal Code, simple imprisonment for six months each for the offence under Section 148 of Indian Penal Code and simple imprisonment for one year each for the offence under Section 324 read with Section 149 of Indian Penal Code. The substantive sentences were directed to be run concurrently. 3. The first contention raised by the petitioners is that as the sentence is seven years for the offence under Section 307 of Indian Penal Code and one year for the offence under Section 324 CRRP 981/00 4 of Indian Penal Code, no appeal will lie before the Sessions Court. Section 374 of Code of Criminal Procedure provides appeals from convictions. Sub- section (2) of Section 374 provides that any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years may appeal to the High Court. Sub-section (3) provides that save as otherwise provided in sub-section (2), any person convicted on a trial by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, may appeal to the Court of Session. Therefore, Sessions Judge is competent to entertain an appeal filed against the conviction and sentence by Assistant Sessions Judge, provided, the sentence is imprisonment for not more than seven years. An appeal will lie before the High Court against the conviction of a Assistant Sessions Judge only if the sentence of CRRP 981/00 5 imprisonment is for more than seven years or less. If the sentence is seven years, an appeal will lie before the Sessions Court and if the sentence is more than seven years, an appeal will lie only before the High Court. It is not aggregate of the sentence for the different offences convicted that matters, but the maximum sentence for any of the offences. Therefore, the contention of the petitioner that no appeal will lie before the Sessions Court and Crl.A.No.13/1998 should not have been entertained by the Sessions Court cannot be accepted, as the maximum sentence awarded was imprisonment for seven years for the offence under Section 307 of Indian Penal Code. An appeal is perfectly maintainable. 4. Learned counsel would argue that learned Sessions Judge did not consider the evidence in the proper perspective and on the evidence, conviction should not have been interfered. A reading of the judgment of the learned Sessions Judge shows that CRRP 981/00 6 the learned Sessions Judge has elaborately considered the evidence and appreciated each item of evidence in the proper perspective. Learned Sessions Judge found that in respect of the incidents that occurred on that fateful day, three crimes were registered, i.e., Crime Nos.11/1995, 12/1995 and 13/1995 of Vadakkekad Police Station. Final report submitted in this case, which was taken cognizance was in Crime No.12/1995. Crime No.13/1995 relates to an incident which occurred in front of the house of PW2. Crime No.11/1995 relates to an incident, which took place at the Primary Health Centre, where some of the accused were admitted. Parties of the prosecution witnesses in this case are accused in the other two crimes. Learned Sessions Judge found that though refer reports were filed in Crime Nos.11/1995 and 13/1995, on the facts and circumstances of the case, prosecution is bound to produce the F.I. Statements, the scene mahazar and the final reports CRRP 981/00 7 in all the crimes, so that court can evaluate the materials and decide whether prosecution case is true or the defence case is true. Learned Sessions Judge, on analysing the evidence of PWs 1 to 3, the injured and the eye witnesses, found that according to the prosecution, entire incident in this case occurred inside the house of PW2. Based on the evidence, learned Sessions Judge found that if such injuries were sustained inside the house of PW2, there should be some traces of blood in the house, in view of the injuries sustained, but none was found. Learned Sessions Judge also found that blood stains were found in the courtyard of the house of PW2, probabilising the case of the defence that injuries sustained were not inside the house but from outside the house. Learned Sessions Judge also found that the defence case that when accused 3 to 5 were passing through the road, they were attacked by PW2 and party and to prevent the attack, the accused persons had thrown stones at the house of CRRP 981/00 8 PW2 which caused the damage. The fact that damage was caused to the house of PW2 is admitted by the prosecution. Learned Sessions Judge, on re- appreciation of the entire evidence, found that it is improbable to cause such damage if some among the accused had gone into the house and inflicted the injuries, while, the remaining accused threw stones at the house of PW2, which would have injured the accused also. It is after proper appreciation of evidence, learned Sessions Judge found that prosecution case cannot be true and PWs 1 and 3 could have sustained injuries not from the house of PW2, as claimed by the prosecution, but in the incident which took place either outside the house of PW2 or at the Primary Health Centre, where the accused were attacked. Considering the entire evidence and reasonings of the learned Sessions Judge, it cannot be said that learned Sessions Judge did not properly appreciate the evidence or the conclusions arrived at by the learned Sessions CRRP 981/00 9 Judge are not valid and reasonable conclusions that could be taken on a proper appreciation of the evidence. In any case, appreciation of evidence cannot be said to be perverse. When the view taken by the learned Sessions Judge was after appreciation of evidence and it is a reasonable view, no interference is warranted in this revision. Revision fails and is dismissed. 23rd June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 981/00 10 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.981 of 2000 -------------------------- ORDER 23rd June, 2010