IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Crl.Rev.Pet.No. 398 of 2008() ----------------------------- CRA.527/2004 of II ADDL. SESSIONS COURT, TRIVANDRUM SC.168/1999 of ASSISTANT SESSIONS COURT, NEYYATTINKARA .................... REVN. PETITIONER: APPELLANTS 1 TO 3/ACCUSED NO.1 TO 3: ------------------------------------------------------ 1. SELVARAJ ALIAS VIKRAMAN, S/O. PALAYYAN NADAR, KAKKATHOOKI VELLATTINKARA- THOTTARIKATHU VEEDU, VELLARADA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 2. JAYARAJ ALIAS JAYAN, S/O. PALAYYAN NADAR KAKKATHOOKI VELLATTINKARATHOTTARIKATHU VEEDU, VELLARADA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 3. PALRAJ ALIAS KUNJUMON, S/O. PALAYYAN NADAR, KAKKATHOOKI VELLATTINKARA- THOTTARIKATHU VEEDU, VELLARADA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON 19/03/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. No. 398 of 2008 * * * * * * * * * * * * * * * * * * Dated: 19-03-2008 ORDER In this Revision filed under Sections 397 and 401 I.P.C., the revision petitioners who are accused Nos. 1 to 3 in S.C. No. 168 of 1999 on the file of the Assistant Sessions Court, Neyyattinkara challenge the conviction entered and the sentence passed concurrently by the courts below for offences punishable under Sections 143, 147, 148, 324 and 307 read with Section 149 I.P.C. 2. The case of the prosecution can be summarised as follows:- On 19-08-1997 at about 6.30 p.m. on the public road near Kakkathookki Junction in Vellarada Village the 7 accused persons formed themselves into an unlawful and in prosecution of the common object of the said assembly to murder P.Ws 1 to 5 they committed rioting armed with deadly weapons such as sword, Crl.R.P. No. 398 of 2008 -:2:- choppers, wooden sticks etc. and A1 cut P.W.1 with a sword which was aimed at his neck and when P.W.1 tried to ward off the cut with his left hand the sword struck on his head resulting in a portion of the skull getting chipped off along with a flap and also caused injury to left arm and rear side of his head. When P.W.1 raised an alarm and attempted to escape from the onslaught of the assailants, A2 cut him with a chopper causing injury to his shoulder. When P.Ws 2 to 4 came to the rescue of P.W.1, A3 cut P.W.2 with a chopper causing injuries to his shoulder and left thigh and A1 cut P.W.3 with a chopper causing a hurt on the inner aspect of the left wrist and front of head on either side . A2 cut PW.2 with a chopper causing a penetrating injury on his head. A1 cut P.W.4 with a chopper causing injury to his left hand above the elbow and right thigh. P.W.5 the father of P.Ws 1 and 2 who rushed to the scene of occurrence was intercepted by A1 who loudly uttered that he and his children would be done to death and cut P.W.5 with a sword causing injury to his left cheek, ear, head causing the outer table of the head being chipped off along with a flap and P.W.5 who fell on the ground was cut with a chopper by A3 causing grievous hurt below the left knee. A2 cut P.W5 with a chopper causing Crl.R.P. No. 398 of 2008 -:3:- injuries to his hand muscles. thereafter A1 cut P.Ws 2 and 3 with a chopper and A4 to A7 beat P.W.5 with wooden sticks causing injuries to his left thigh and ankle including fracture of bone and other injuries to his left shoulder and head. The accused have thereby committed offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Sec. 149 I.P.C. and Sec. 27(1) of the Arms Act, 1959. The motive for the occurrence was the prior enmity on account of P.W.2 lodging a complaint before the Vellarada Police alleging that the accused had committed mischief by uprooting the tapioca cultivation and causing destruction to the rubber seedlings . 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.Ws 1 to 21 and got marked 19 documents as Exts.P1 to P19 and 5 weapons as Mos 1 to 5 and blood stained earth as MO 6 and 7. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating evidence appearing against them in Crl.R.P. No. 398 of 2008 -:4:- the evidence for the prosecution. They denied those circumstances and maintained their innocence. 5. After hearing the prosecution and the accused under Section 232 Cr.P.C. the trial judge did not record an order of acquittal of the accused. The accused were thereafter calaled upon to enter on their defence and to adduce any evidence which they might have in support thereof. They did not adduce any defence evidence. The learned Addl. Sessions Judge, after trial, as per judgment dated 23-09-2004 acquitted all the accused persons of the offence punishable under Section 27 (1) of the Arms Act, 1959 but convicted them of the offences punishable under Sections 143, 147, 148, 324, 326 and 307 read with Sec. 149 I.P.C. For the conviction under Sections 143, 147, 148 and 324 I.P.C. each of the accused persons was sentenced to rigorous imprisonment for six months, one year, two years and two years respectively. For the conviction under Section 326 I.P.C. each of the accused persons was sentenced to rigorous imprisonment for three years and to pay fine of Rs. 3,000/- and on default to pay the fine to suffer simple imprisonment for one year for the conviction under Sec. 307 I.P.C. each of them was sentenced to rigorous imprisonment for 5 years and to pay fine of Rs. 5,000/- Crl.R.P. No. 398 of 2008 -:5:- and on default to pay the fine to suffer simple imprisonment for two years respectively. The substantive sentences were directed to run concurrently. The fine amount was directed to be paid as compensation to P.Ws 1, 2 and 5 in the ratio of 1:1:2 under Section 357 (1)(b) Cr.P.C. 6. On appeal preferred by the accused as Crl. A. 527 of 2004 on the file of the Sessions Court, Thiruvananthapuram, the II Addl. Sessions Judge, Thiruvananthapuram as per judgment dated 26-7-2007 acquitted accused Nos. 4 to 7 of all the offences and acquitted A1 to A3 of the offence punishable under Section 326 I.P.C. but confirmed the conviction and sentence of A1 to A3 with regard to the remaining offences. Hence, this Revision. 7. I heard the learned counsel appearing for the revision petitioners and the learned Public Prosecutor. 8. The learned counsel appearing for the revision petitioners made the following submissions before me in support of the revision:- 9. Going by the prosecution case it was P.W.2 who filed a complaint against A1 to A3. If so, why should A1 to A3 try to kill P.W.1 instead of P.W.2. P.W.1 is a known criminal in that Crl.R.P. No. 398 of 2008 -:6:- area. The ingredients of Sec. 307 I.P.C. are not attracted. Neither the motive nor the intention to commit the alleged offences has been proved. Out of the occurrence witnesses examined as P.W. 5 the courts below have concurrently believed only P.Ws 1 and 2. The lower appellate court has not believed P.Ws 1 to 5. None of the independent witnesses have supported the prosecution. Eventhough Ext.P1 F.I. statement mentions the names of 10 persons, 7 alone have been charge-sheeted and out of them 4 have been acquitted by the lower appellate court. P.W.1 who is a hardened criminal had sufficient animosity to falsely implicate A1 to A3. P.Ws 1 , 2 and 5 were not speaking the truth. 10. I am afraid that I cannot agree with the above submissions. P.Ws 1 to 11 were examined as the occurrence witnesses. Out of them P.Ws 1 to 5 are the injured witnesses. P.Ws 3 and 4 and P.Ws 6 to 11 turned hostile to the prosecution. P.Ws 1 and 2 are the sons of P.W.5. Having regard to the manner in which the revision petitioners along with others opened the aggression on P.W.5 and his family members and the manner in which deadly weapons were used to assault P.Ws 1, 2 and 5 and having further regard to the nature of the grave Crl.R.P. No. 398 of 2008 -:7:- injuries sustained by on P.Ws 1, 2 and 5, I have no hesitation to conclude that the courts below were fully justified in believing P.Ws 1 and 2 . It is really a mistery that P.Ws 1 and 2 who sustained severe cut injuries on their heads with portions of the scalp and the skull inside chopped off due to the swish of the sword wielded by A1, have survived. Witnessing such a ghastly occurrence, P.Ws 3, 4 and 6 to 11 must have been so scared that they could not muster sufficient strength to depose against the accused at their peril. Hence, the failure on the part of those witnesses to support the prosecution cannot be characterised as testimonial infidelity. The trial judge who had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe the prosecution witnesses and this court sitting in revision will be loathe to interfere with the conclusions reached by the lower appellate court unless the appreciation of the evidence by those courts has been faulty. I am not able to see any infirmity in the appreciation of evidence by the courts below. The conviction was rightly entered against the revision petitioners. 11. What now survives for consideration is the adequacy or otherwise of the sentence imposed on the revision petitioners. Crl.R.P. No. 398 of 2008 -:8:- Having regard to the horrendous manner in which A1 to A3 armed with lethal weapons pounced upon P.Ws 1 to 5 and inflicted the injuries, shows the daring manner in which A1 to A3 and their companions set upon their victims. Considering the facts and circumstances of the case, I do not think that the sentence imposed on them by the lower appellate court calls for any interference. If at all the lower appellate court has erred it was on the side of leniency in reducing the substantive sentence. I, therefore, did not find any good reason to interfere with the sentence imposed on the revision petitioners as well. In the result this Revision is dismissed confirming the conviction entered and the sentence passed against the revision petitioners. V. RAMKUMAR, JUDGE ani/