IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 39 of 2002() ---------------------------- CRA.129/1999 of I ADDL.SESSIONS COURT, ERNAKULAM CC.415/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER/APPELLANT/ACCUSED: ---------------------------------------- RAJESH, S/O. KRISHNAN, PULITHARA NIOKATH VEEDU,PONNARIMANGALAM DESOM, MULAVUKAD VILLAGE. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT/RESPONDENT/COMPLAINANT: --------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO.39/02 ORDER ON CRL.M.P. NO.258/02 IN CRL.R.P. NO.39/02 DISMISSED SD/- 11.8.2010 M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ PA TO JUDGE M.SASIDHARAN NAMBIAR, JUDGE CRL.R.P. NO.39/02 ORDER DATED, 11.8.2010 M.SASIDHARAN NAMBIAR, J. --------------------------- Crl.R.P. No. 39 OF 2002 -------------------------- Dated this the 11th day of August, 2010 O R D E R Petitioner, the accused in C.C. No.415 of 1996 on the file of Judicial First Class Magistrate-I Ernakulam was convicted and sentenced for the offences under Sections 447 and 323 of Indian Penal Code. He was acquitted for the offence under Section 294(b) of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.Appeal No.129 of 1999. The learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that courts below did not properly appreciate the evidence and the delay in the FIR reaching the court was not properly appreciated. It was pointed out that there was a delay of two days in reaching the FIR in court and though the evidence of PWs 1 to 4 was relied on by the courts below, on proper appreciation of evidence, it should have been found that they are not trust worthy witnesses. 4. I have gone through the evidence of PWs 1 to 4 and the Crl. R.P. No.39 of 2002 2 findings of the courts below. The fact that PW2 sustained hurt on 3.3.1996 is proved by the evidence of PW2 corroborated by PWs 3 and 4 and the evidence of PW6 the doctor with Ext.P3 wound certificate. Though PWs 2 to 4 were cross-examined at length, nothing was brought out to disbelieve their evidence. In such circumstances, courts below were perfectly right in relying on their evidence and finding that petitioner trespassed into the property where PWs 2 and 3 were residing and voluntarily caused hurt to PW2. Hence conviction of the petitioner for the offences under Sections 323 and 447 of Indian Penal code is perfectly legal. 5. Then the only question is regarding the sentence. Learned Magistrate awarded a sentence of simple imprisonment for one month for the offence under Section 447 and simple imprisonment for six months for the offence under Section 323 of Indian Penal Code. Learned Magistrate did not grant the benefit of the benevolent provisions of the Probation of Offenders Act finding that without provocation petitioner attacked PW2, a woman, and in such circumstances, he is to be awarded substantive sentence. The incident was on 3.3.1996. Considering the entire facts of this case and the time lag, interest of justice will be met if petitioner is granted the benefit of Sections 3 and 4 of Probation of Offenders Act after Crl. R.P. No.39 of 2002 3 getting a positive report from the Probation Officer. The learned Magistrate is directed to call for a report from the District Probation Officer and decide on getting the report as provided under sections 3 and 4 of Probation of Offenders Act. It is made clear that in case the petitioner is granted the benefit under sections 3 and 4 of Probation of Offenders Act, he shall be asked to pay compensation to PW2, the injured. Revision is allowed in part. Conviction of the petitioner for the offences under Sections 447 and 323 of Indian Penal Code is confirmed. The sentence awarded by the learned Magistrate as confirmed by the learned Sessions Judge, is set aside. Judicial First Class Magistrate-I, Ernakulam, is directed to call for a report from the District Probation Officer and decide whether petitioner could be released granting the benefit under sections 3 and 4 of Probation of Offenders Act. The petitioner is directed to appear before Judicial First Class Magistrate-I, Ernakulam, on 3.9.2010. Send back the records immediately. M.SASIDHARAN NAMBIAR, (JUDGE) vps Crl. R.P. No.39 of 2002 4 Crl. R.P. No.39 of 2002 5