IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 506 of 2000() ----------------------------- CRA NO.144/1997 OF ADDL. SESSIONS JUDGE, KOZHIKODE S.C.NO.31/1994 OF I ADDL. ASSISTANT SESSIONS JUDGE, KOZHIKODE REVN. PETITIONER(S)/APPELLANT/ACCUSED 1 TO 4: --------------------- 1. VIJAYAN, AGED 35, S/O.RAGHAVAN, AGRICULTURIST, PONNAMKANDY HOUSE, KOZHIKODE. 2. PREMARAJAN, AGED 35, S/O.APPU, NEIYANADU AMSOM, KOZHIKODE. 3. KRISHNAN @ RADHAKRISHNAN, AGED 31, S/O.APPU, PONNAMKANDY HOUSE, KOZHIKODE. 4. JAYANANDAN, AGED 35, CHILAM PARAMBATH HOUSE, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENT/RESPONDENT: --------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.506 of 2000 -------------------------------------- Dated this the 2nd day of June, 2009. ORDER This revision is at the instance of accused Nos.1 to 4 who, along with accused No.5 faced trial in the Additional Assistant Sessions Court, Kozhikode for offence punishable under Sections 143, 147, 148 and 307 read with Section 149 of the Indian Penal Code (for short, “the Code”). Case is that on 2.11.1992 at about 8 p.m. petitioners along with accused No.5 formed unlawful assembly, armed with deadly weapons such as cycle chain, chopper and iron rod committed rioting and attempted to cause death of PW1 on the pathway leading to the house of PW2. Learned Additional Assistant Sessions Judge found the petitioners guilty of the said offences as well as Section 326 of the Code and sentenced them to undergo imprisonment for various periods. Accused No.5 was acquitted of the charges against him. Petitioners took up the matter in appeal. Learned First Additional Sessions Judge acquitted petitioners of charges under Sections 143, 147, 148,307 and 326 read with Section 149 of the Code but found them guilty under Section 324 of the Code. Petitioners were sentenced to undergo rigorous imprisonment for one year each for that offence. Petitioners are aggrieved and preferred this revision. During the pendency of the revision counsel reported that petitioner No.3/accused No.3 died. Learned Public Prosecutor was directed to verify the same and report. counsel for petitioner submits that petitioner No.3/accused No.3 is dead. I find no reason to Crl.R.P.No.506/2000 2 discard that statement. Nobody has chosen to prosecute the revision on behalf of petitioner No.3 but being a revision it cannot abate consequent to the death. It is contended that the conviction of the petitioners even under Section 324 of the Code is not sustainable in so far as there is no reliable evidence for the same. 2. Ext.P2 is the mahazar for scene of occurrence prepared by the Investigating Officer on 3.11.1992 describing the pathway leading to the house of PW2 as the place of occurrence. Investigating officer found foot prints and two pairs of chappels at and near the place of occurrence. PW8 is the Village Officer who prepared Ext.P10, sketch. Though it is not stated in Ext.P2, evidence of PW8 is that there is an electric post at the place of occurrence. 3. Evidence regarding the incident proper is given by PWs 1 and 2. Their evidence is that immediately before the incident they were talking near the pathway and in order to go to his house PW2 proceeded upto a distance of 15 metres when petitioners and accused No.5 rushed to the place of occurrence stating that they were looking for PW1 and assaulted him. Petitioner Nos.2 and 4 assaulted PW1 with chopper while petitioner Nos.1 and 3 assaulted him with a cycle chain and iron rod. PWs 1 and 2 identified MOs 1 to 3 as the said weapons. In cross-examination PW1 admitted that he is accused in three case one of which was for causing stab injury on PW2. In that case petitioners figured as witnesses for the prosecution. Crl.R.P.No.506/2000 3 4. PW5 examined PW1 on 2.11.1992 at about 9.15 p.m. and issued Ext.P4. PW1 suffered incised wounds, lacerated wounds, contused abrasion and loosening of upper right lateral incisor and lower canine teeth. The history and alleged cause of injury stated by PW1 is assault on that day at 8 p.m. with chopper, cycle chain and iron rod. PW5 opined that those injuries could be caused with MOs 1 to 3. PW9, Head Constable recorded Ext.P1 (F.I.Statement) given by PW1 while undergoing treatment at Medical College Hospital, Kozhikode on 3.11.1992 at about 12 p.m. There, he described the incident in the way he stated while in the box. PW11, ASI registered the case. PW10 prepared the mahazar for scene of occurrence (Ext.P2) and seized the chappels. PW11, Investigating Officer claimed to have arrested the petitioners on 5.11.1992 at about 10.30 p.m. and on questioning petitioner No.1 on 6.11.1992 he stated that MOs 1 to 3 wrapped in a newspaper has been thrown into the bushes on the side of the road and on that information as led by petitioner No.1, he went to that place and discovered MOs 1 to 3. Ext.P5 is the mahazar for that purpose. PW6 is an attestor in Ext.P5 and supported the prosecution and identified MOs 1 and 2. The cloths which PW1 was wearing were seized as pr Ext.P3on 5.11.1992. The material objects were produced in court as per Ext.P6 series, property list on 4.12.1992. PW7, Section Clerk attached to the court received the same. Ext.P8 is the covering letter for sending MOs 1 to 3 and the newspaper in which it was allegedly wrapped for chemical examination. Ext.P9 is the report of chemical analysis report wherein it is stated that no sign of human blood was seen on the material objects. Crl.R.P.No.506/2000 4 5. It is true that though petitioners and accused No.5 are closely known to PW1, he did not mention name of any of the assailants to the doctor at the time of examination. But it is not the requirement of law that the name of the assailants is to be disclosed to the medical officer and even if it is so done, the latter should record it. The mere fact that PW1 was involved in some cases including one for stabbing petitioner No.2 is not sufficient to disbelieve the evidence of PWs 1 and 2. Supporting the evidence of PWs 1 and 2 there is evidence of PWs 3 and 4. Hearing the cry from the scene of occurrence they reached there and found PW1 lying wounded. PW3 has stated that he saw petitioner Nos.1 and 2 and a few others at the scene of occurrence. I have gone through the evidence and do not find reason to interfere with the same since the finding of the courts below as to the involvement of the petitioners is based on proper appreciation of the evidence. Hence the challenge to the conviction under Section 324 of the Code has to stand. 6. As requested by the learned counsel for petitioners, the report of the District Probation Officer was called for as to the antecedents and conduct of petitioner Nos.1, 2 and 4. The District Probation Officer has reported that petitioner Nos.1, 2 and 4 are of good nature and are not involved in any other case. It is also reported that they are leading a peaceful life and their relatives are also caring for them. District Probation Officer has therefore, recommended application of Section 4 of the Probation of Offenders Act. Crl.R.P.No.506/2000 5 7. It is submitted by learned counsel that though subsequent to the incident, petitioner No.2 got employment in the southern railway. Petitioner Nos.1, 2 and 4 are not shown to be involved in any other case. It has come out in evidence that PW1 was involved in a few other cases and he was convicted for inflicting stab injury on petitioner No.2. Since petitioner Nos.1, 2 and 4 are not shown to be habitual offenders or involved in any other case and the incident on hand occurred in view of the enmity petitioner Nos.1, 2 and 4 had with PW1, I do not think that it is necessary to direct them to keep peace and be of good behaviour. Instead, the sentence imposed on them can be modified as fine of Rs.5,000/- each. Out of the fine if realised, Rs.12,500/- will be given to PW1 as compensation. Petitioners are granted one month's time to deposit the fine in the trial court. Resultantly, this revision petition is allowed in part in the following lines:- i. Revision to the extent it concerned petitioner No.3/accused No.3 is dismissed. ii. Revision to the extent it concerned petitioner Nos.1, 2 and 4/accused Nos.1, 2 and 4 is allowed to the extent that the sentence imposed on them for offence punishable under Section 324 of the Code is modified as fine of Rs.5,000/-(Rupees Five thousand only) each and in default of payment, to undergo simple imprisonment for two months each. Petitioners are granted one month's time to deposit fine in the trial court. Crl.R.P.No.506/2000 6 iii. Out of the fine if realised Rs.12,500/- (Rupees Twelve thousand and five hundred only) will be given to PW1 as compensation under Section 357(1) of the Code of Criminal Procedure. Crl.M.A.No.2808 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks Crl.R.P.No.506/2000 7 Thomas P.Joseph, J. Crl.R.P.No.506 of 2000 ORDER 2nd June, 2009.