IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 Crl.Rev.Pet.No. 758 of 2001() ----------------------------- CRA.280/1995 of I ADDL. SESSIONS COURT, TRIVANDRUM CC.200/1992 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- MICHAEL ALIAS MADHU, S/O DEVASAHAYAM THALAKKOTTUKONATHU KIZHAKKEKONIKKOLLI VEEDU KALTHUMMAL MURI, ARUVIKKARA VILLAGE BY ADV. SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENT(S): RESPONDENT/CLAIMANT --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 758 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October , 2009 ORDER The revision petitioner is the first accused in C.C.No.200/1992 of Judicial First Class Magistrate Court II, Nedumangadu and appellant in Crl. Appeal No.280/1995 of Sessions Court, Thiruvananthapuram. He was convicted under Sections 324, 341 read with Section 34 of IPC and Section 27 of Arms Act and sentenced to undergo rigorous imprisonment for six months under Section 324 of IPC , simple imprisonment for one month under Section 341 of IPC and rigorous imprisonment for three months under Section 27 of Arms Act. The accused 3 and 4 were found not guilty and acquitted by the trial court. The lower appellate court confirmed the conviction and sentence of the revision petitioner. The first accused has now comp up in revision challenging his conviction and sentence. 2. The case of prosecution as shaped in evidence before the trial court is that the revision petitioner along with three others with the Crl.R.P.No.758/0 Page numbers common intension of causing hurt to PW1, the injured, attacked him with a sword stick on January 26, 1992 at about 6.10 p.m. and inflicted injuries described in Ext.P6 wound certificate on him. 3. The accused persons on appearance before the trial court pleaded not guilty to a charge under Sections 324, 341 of IPC and Section 27 of Arms Act. PWs 1 to 6 were examined and Exts.P1 to P6 and MO1 were marked. When questioned under Section 313 Cr.P.C., the accused denied the entire incident. No defence evidence was adduced. 4. The trial court on an appreciation of evidence found the first accused guilty of the offences punishable under Sections 324, 341 read with Section 34 of IPC and Section 27 of Arms Act and convicted him thereunder and sentenced him as aforesaid. The trial court acquitted accused 3 and 4 and refiled the case against accused No.2 as he was absconding. The lower appellate court confirmed the conviction and sentence of the first accused/revision petitioner. Now the first accused has come up in revision challenging his conviction and sentence. Crl.R.P.No.758/0 Page numbers 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Sections 324, 341 read with Section 34 of IPC and Section 27 of Arms Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentenced imposed is excessive or unduly harsh ? 6. PWs 1 to 6 were examined and Exts.P1 to P6 and MO1 was produced on the side of the prosecution before the trial court. PW3 is the defacto complainant and the injured. He testified in terms of the prosecution case. I have gone through the evidence of PW3. No serious discrepancies were brought out during cross examination to discredit his evidence. 7. Counsel for the revision petitioner argued that the uncorroborated version of PW3 cannot be accepted as he has testified falsely due to political rivalry . I find no substance in the above submission made by the counsel for the revision petitioner. Merely because there was political rivalry between the accused persons and Crl.R.P.No.758/0 Page numbers PW3, his evidence cannot be brushed aside. The trial court as well as the lower appellate court has chosen to believe his evidence. I find no reason to come to a different conclusion. Further his evidence is supported by medical evidence. PW 6, the doctor who examined him found corresponding injuries on the body of PW3. PWs 2 and 3, the independent witnesses turned hostile and did not support the prosecution. PW4 is the attester to scene mahazer. PW5 is the S.I. of Police who conducted investigation and laid the charge before the trial court. 8. As regards the charge under Section 27 of the Arms Act, it is brought to my notice by the learned counsel for the revision petitioner that a separate notification is necessary to show that the arms used for committing the offence come within the purview of prohibited arms as defined under section 2(1)(c) of the Arms Act and as provided under Rule 3, Schedule I of the Arms Rules. It is admitted by the learned Public Prosecutor that no such notification was issued in this case. The above question was considered by the Apex Court in Subhash Ramkumar Bind @ Vakil and another V. State of Maharashtra (2003)1 Crl.R.P.No.758/0 Page numbers SCC 506 and held that without the issuance of a notification, which stands as a requirement of the statute, question of conviction under Section 27(3) of the Arms Act would not arise. Therefore, no charge under section 27 of the Arms Act will lie against the revision petitioner/1st accused. Hence, the conviction and sentence imposed against him under Section 27 of the Arms Act has to be set aside. 9. As regards the sentence imposed by the trial court under Sections 324, 341 read with Section 34 IPC, the revision petitioner/1st accused was sentenced to undergo rigorous imprisonment for six months under Section 324 IPC and simple imprisonment for one month under Section 341 IPC. The injuries sustained by PW3 are 5 cms. long incised muscle deep wound over the left supra spintous area over the scapula, 2 cms. long incised muscle deep wound on the anterior aspect of palm at the root of little finger on right side and 2 cms. diameter contusion on the right frontal area, as seen from Ext.P6, the wound certificate. It shows that PW3 sustained only very simple injuries. Taking into consideration all these facts and also the fact that the incident occurred on January 26, 1992, i.e., about 18 years ago, I feel Crl.R.P.No.758/0 Page numbers that a sentence of fine of Rs.3,000/- under section 324 IPC and Rs.500/- under section 341 IPC would meet the ends of justice. 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner/1st accused under Sections 324 and 341 rendered by the trial court, which was confirmed in appeal by the lower appellate court is upheld. The sentence imposed by the trial court, which is confirmed in appeal is set aside. The revision petitioner is sentenced to pay fine of Rs.3,000/-, in default to undergo simple imprisonment of three months under section 324 IPC and to pay fine of Rs.500/-, in default to undergo simple imprisonment for one month under section 341 IPC. The conviction and sentence under Section 27 of the Arms Act are set aside and the revision petitioner is acquitted of the said charge. If the fine amount is realized, the same shall be paid to PW3 as compensation as provided under Section 357(1) of the Code of Criminal Procedure. Two months' time is granted to the revision petitioner to pay the fine amount. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE sv/mn Crl.R.P.No.758/0 Page numbers