IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 Crl.Rev.Pet.No. 1303 of 2002() ------------------------------ CRA.6/2000 of V ADDL.SESSIONS COURT, ERNAKULAM CC.265/1997 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED NO.1 & 2 ------------------------------------------------ 1. HARIDAS S/O. GOPALAN, THOPPILVEETTIL, IV/313, GANAPATHIKKADU DESOM, CHELLANAM. 2. SIVAPRASAD S/O. GOPALAN, THOPPILVEETTIL, IV/313, GANAPATHIKKADU DESOM, CHELLANAM. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENT(S): COPMPLAINANT --------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KANNAMALY (CIRME 23/97) REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1303 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November, 2009 ORDER Revision petitioners are accused 1 and 2 in C.C.No.265/1997 of Judicial First Class Magistrate I, Kochi and appellant in Crl.Appeal No.6/2000 of 5th Additional Sessions Court, Ernakulam. They were convicted under Sections 341, 323 and 324 of IPC read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for six months under Section 324 of IPC, three months under Section 323 of IPC and one month under Section 341 of IPC. The sentences were ordered to run concurrently. Their conviction and sentence are confirmed in appeal. The accused persons have now come up in revision challenging their conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on March 1, 1997 at about 4 'o' clock morning, accused 1 and 2 with the common intention of causing hurt to PW1 , first accused beat PW1 on his head with a stick and second accused caught hold of PW1 and fisted PW1 on chest and back and that thereby Crl.R.P.No.1303/2002 Page numbers committed the offence punishable under Sections 341, 323 and 324 of IPC read with Section 34 of IPC. 3. When the accused persons appeared before the trial court, they pleaded not guilty to a charge under Sections 341, 323 and 324 of IPC read with Section 34 of IPC. PWs 1 to 7 were examined and Exts.P1 to P4 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court , the accused persons denied the entire transaction. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the accused persons guilty of the offence punishable under Sections Sections 341, 323 and 324 of IPC read with Section 34 of IPC, convicted them thereunder and sentenced them as aforesaid which is confirmed in appeal. Accused 1 and 2 have come up in revision challenging their conviction and sentence. 5. The following points arise for consideration ? 1) Whether the conviction of the revision petitioners under Sections 341, 323 and 324 of IPC read with Section 34 of IPC rendered Crl.R.P.No.1303/2002 Page numbers by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed in excessive or unduly harsh ? Point No.1 6. PWs 1 to 7 were examined and Exts.P1 to P4 were marked on the side of the prosecution. PW1 is the defacto complainant. He testified that on March 1, 1997 at about 4.A.M. while he was drawing water from the water tap near the St.Sebastians Church at Chellanam, accused 1 and 2 came there and assaulted him. Accused 1 and 2 are brothers. I have gone through his evidence . Nothing was brought out during his cross examination to discredit his evidence. PWs 2 and 3 the alleged eye witnesses supported PW1. On going through their evidence, I find no reason to disbelieve them. 7. Counsel for the petitioners argued that there was three days delay in registering the FIR, that the incident occurred on 1/3/1997 and Ext.P1 FI statement was recorded only on 4/3/1997, that the delay was not explained on the side of the prosecution and that therefore, the Crl.R.P.No.1303/2002 Page numbers version of PW1 regarding the incident could not be believed. I am unable to agree. PW6 is the Medical Officer who examined PW1 on 1/3/1997 at 10.30 A.M. Therefore, I feel that even if there was some delay in registering the FIR, it does not materially affect the case of prosecution. For all these reasons, I feel that the lower court is perfectly justified in believing the evidence of PWs 1 to 3. PW4 is the attestor to scene mahazer . PW5 is the Head Constable who registered the FIR. PW7 is the investigating officer. 8. The case of the accused persons when questioned under Section 313 of Cr.P.C. was that they were attacked by PWs 1 and 2 and that in that attack PW1 as well as accused persons fell down and sustained injuries. There is no force in the above contention. PW1 as well as PWs 2 and 3 testified that it was the accused persons who attacked PW1. For all these reasons, I am inclined to confirm the conviction of the revision petitioners under Sections 341, 323 and 324 of IPC read with Section 34 of IPC. Point No.2 9. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for six months under Section 324 of IPC , Crl.R.P.No.1303/2002 Page numbers three months under Section 323 of IPC and one month under Section 341 of IPC which is confirmed in appeal. The incident is of the year 1997. PW1 sustained only abrasions . Taking into consideration all these aspects, I feel that a sentence of fine of Rs. 500/- each under Section 341 and 323 of IPC and Rs. 1000/- each under Section 324 of IPC would meet the ends of justice. In the result, the Criminal Revision Petition is allowed in apart. The conviction of the revision petitioners under Sections 341, 323 and 324 of IPC read with Section 34 of IPC is confirmed. They are sentenced to pay a fine of Rs. 500/- each under each count of Section 341 and 323 of IPC , in default, to undergo simple imprisonment for one month each. They are also sentenced to pay a fine of Rs. 1000/- each under Section 324 of IPC , in default, to undergo simple imprisonment for three months each. Their bail bonds are cancelled. One month's time is granted for payment of fine. Fine amount, if realised, shall be paid to PW1 as compensation as provided under Section 357(1) Cr.P.C. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1303/2002 Page numbers