IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 Crl.Rev.Pet.No. 685 of 2001() ----------------------------- CRA.84/1997 of SESSIONS COURT, THALASSERY CC.161/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER(S): APPELLANTS - ACCUSED --------------------- 1. KURIAN, S/O. KURIAN, 40 YEARS, COOLIE, RESIDING AT VELLARVALLY. 2. SUNNY, S/O. THOMAS, 30 YEARS, TAPPING, DO. 3. BABU, S/O. THOMAS, 28 YEARS, FARMER, DO. 4. V. RAJU, S/O. ANANDAN, 31 YEARS, TIMBER WORK, DO. 5. MATHEW, S/O. MATHEW, 24 YEARS, TAPPING, DO. BY ADV. SMT.P.M.INDU SRI.GEORGE SEBASTIAN RESPONDENT(S): RESPONDENT - COMPLAINANT --------------- STATE OF KERALA (SHO, PERAVOOR POLICE STATION), REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P. 685 of 2001 ............ DISMISSED 18.11.2002 SD/- P.Q.BARKATH ALI, JUDGE. -/true copy/- P.S. to Judge P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 685 of 2001 ------------------------------------------------------ Dated: NOVEMBER 18, 2009 ORDER The five revision petitioners are the accused in CC 161/1995 of the Judicial First Class Magistrate Court, Kuthuparamba and appellants in Crl.A.84/1997 of Additional Sessions Court, Thalassery. They are convicted for the offences punishable under secs.143, 147, 148, 341, 323 and 324 read with sec.149 of IPC. They are sentenced to undergo rigorous imprisonment for three months each under each of the counts under secs.143 and147 read with sec.149 of IPC, rigorous imprisonment for six months each under sec.148 read with sec.149 of IPC, to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month each under sec.341 of IPC read with sec.149 of IPC, to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for three months each under sec.323 read with sec.149 of IPC and to undergo rigorous imprisonment for six months each under sec.324 read with sec.149 of IPC. Out of the fine amount, if realised, Rs.5000/- shall be paid as compensation to PWs.1 and 2 each and Rs.1000/- was directed to be paid to PW.5 as provided under sec.357(1) Cr.P.C. They were acquitted of the offence under sec.326 read with sec.149 of IPC. On appeal, the lower appellate court confirmed their conviction and sentence. 2 2. The case of the prosecution as shaped in evidence before the trial court is that at about 2.30 p.m. on September 4, 1994 all the accused formed themselves into an unlawful assembly at Vellarvally armed with deadly weapons with the common object of assaulting the de facto complainant Chandran due to previous enmity, that in prosecution of that common object when the said Chandran /PW.1 and his mother-in-law/PW.5 Mathu were waiting for bus at Vellarvally, the accused attacked PW.1 causing serious injuries on his body by beating and cutting him with weapons and when his mother-in-law PW.5 and father-in-law PW.2 came to save him, the accused inflicted injuries on them also and that thereby committed the offences punishable under secs.143, 147, 148, 341, 323, 324 and 326 read with sec.149 of IPC. 3. The accused persons on appearance before trial court pleaded not guilty to the charges under secs.143, 147, 148, 341, 323, 324 and 326 read with sec.149 of IPC. The prosecution examined PWs.1 to 12 and marked Exts.P1 to P11 and Mos.1 to 4. DWs.1 and 2 were examined for defence. When questioned under sec.313 Cr.P.C., the accused persons submitted that PW.1 and others assaulted one Vasu and his people and to escape from that liability PW.1 has made this false complaint against the accused persons. Dws.1 and 2 were examined on the side of the accused. 4. The lower court on an appreciation of evidence found the revision petitioners guilty of the offences punishable under secs.143, 147, 148, 341, 323 and 324 read with sec.149 of IPC., convicted them 3 thereunder and sentenced them as aforesaid which is confirmed in appeal. The accused persons have come up in revision challenging their conviction and sentence. 5. Heard counsel for the revision petitioner and the Public Prosecutor. 6. The following points arise for consideration:- I. Whether the conviction of the revision petitioners under secs.143, 147, 148, 341, 323 and 324 read with sec.149 of IPC can be sustained? II. Whether the sentence imposed is excessive or unduly harsh? Point No.I 7. PWs.1 to 12 were examined and Exts.P1 to P11 and Mos.1 to 4 were marked on the side of the prosecution to prove the guilt of the accused persons. PWs.1, 2 and 5 supported the prosecution. PW.1 is the de facto complainant and the injured who gave the F.I. Statement Ext.P1. PW.2 is his father-in-law and PW.5 is his mother-in- law. They have sustained injuries. They gave a consistent version regarding the incident. I have gone through their evidence. Nothing was brought out in their cross-examination to discredit their evidence. They identified all the accused persons in court who are known to them for more than twenty years. Therefore both the courts below are perfectly justified in believing their evidence regarding the incident. 4 8. PW.3 is the person in front of whose house the incident happened. Though he testified regarding the incident, he did not identify the accused persons. PW.4 is an independent alleged eye witness who also did not identify the accused persons, but would say that immediately after the incident PW.1 told him that he was beaten up by the accused persons. PW.6 is the doctor who examined PWs.1, 2 and 5 and issued wound certificates Exts.P2 to P4. He found about 12 injuries on PW.1 and 7 injuries on PW.2. PW.5 did not sustain any injuries. PW.7 is the Head Constable who recorded the F.I.Statement and registered the F.I.R. PW.8 is the Head Constable who further investigated the case. PW.9 is the Sub Inspector who verified the investigation and laid the charge. Pws.10 and 12 are the attesters to the scene mahazar and PW.11 is the attester to the seizure mahazar. PWs.11 and 12 did not support the prosecution. 8. The trial court as well as the lower appellate court have discussed in detail the evidence of PWs.1, 2 and 5 and chosen to believe their evidence. On going through their evidence I find no reason to come to a different conclusion. Further, immediately after the incident PW.1 told PW.4 that it was the accused persons who assaulted them. Therefore I uphold the finding of the trial court which is confirmed in appeal that the prosecution has proved beyond doubt that at about 2.30 p.m. on September 4, 1994 all the accused formed themselves into an unlawful assembly armed with deadly weapons with the common object of assaulting PW.1, unlawfully restrained him, 5 his father-in-law PW.2 and his mother-in-law PW.5 and attacked them and inflicted injuries descried in the wound certificates Exts.P2 to P4. Therefore I am inclined to confirm the conviction of the accused persons under secs.143, 147, 148, 341, 323 and 324 read with sec.149 of IPC. Point No. II 9. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three months each under each of the counts under secs.143 and147 read with sec.149 of IPC, rigorous imprisonment for six months each under sec.148 read with sec.149 of IPC, to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month each under sec.341 of IPC read with sec.149 of IPC, to pay a fine of Rs.1000/- each, in default to undergo rigorous imprisonment for three months each under sec.323 read with sec.149 of IPC and to undergo rigorous imprisonment for six months each under sec.324 read with sec.149 of IPC. Out of the fine amount, if realised, Rs.5000/- each was ordered to be paid as compensation to PWs.1 and 2 and Rs.1000/- was directed to be paid to PW.5 as provided under sec.357(1) Cr.P.C. which is confirmed in appeal. The incident occurred in 1994 i.e. about 15 years ago. The accused persons are the neighbours of PWs.1, 2 and 5. Taking into consideration all these aspects, I feel that the substantive sentence imposed by the courts below can be reduced to imprisonment till the rising of the court. A fine of Rs.5000/- under sec.324 of IPC, a fine of 6 Rs.2000/- under sec.323 of IPC, a fine of Rs.500/- under sec.341 of IPC and fine of Rs.500/- under each count of secs.143, 147 and 148 of IPC would meet the ends of justice. 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioners under secs.143, 147, 148, 341, 323 and 324 read with sec.149 of IPC is upheld. The sentence is modified to the effect that they are sentenced to pay a fine of Rs.5000/- each, in default to undergo simple imprisonment for three months each under sec.324 of IPC. They are further sentenced to pay a fine of Rs.2000/- each, in default to undergo simple imprisonment for three months each under sec.323 of IPC. They are also sentenced to pay a fine of Rs.500/- each, in default to undergo simple imprisonment for one month each under sec.341 of IPC. They are further sentenced to pay a fine of Rs.2000/- each under each of secs.143, 147 and 148 read with sec.149 of IPC, in default to undergo simple imprisonment for two months each (total fine of Rs.13,500/- each). Out of the fine amount, if realised, Rs.25,000/- shall be paid to PW.1, Rs.10,000/- to PW.2 and Rs.5000/- to PW.5 as compensation as provided under sec.357(1) of Cr.P.C. Their bail bonds are cancelled. The revision petitioners shall surrender before the lower court on or before 30.12.2009 and pay the fine. P.Q. BARKATH ALI, JUDGE mt/-