IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 3364 of 2008() ------------------------------ CRA.230/2006 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.347/2001 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------------- VARGHESE, S/O.PAILY, PALLIPPADAN HOUSE, MANNUTHY DESOM, OLLUKKARA VILLAGE, THRISSUR DIST. BY ADV. SRI.U.O.JOSE RESPONDENT(S): RESPONDENT:COMPLAINANT: -------------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. .SASIDHARAN NAMBIAR,J . CRL.R.P. NO.3364 OF 2008 Dated, this the 7 th day of November,2008 ORDER Revision petitioner is challenging the conviction and sentence for the offence under sections 452, 341 and 323 IPC in C.C.347/2001 on the file of Judicial First Class Magistrate-II as confirmed by Additional Sessions Judge, Thrissur in Crl.A.230/2006. 2. Prosecution case was that petitioner is a money lender and had occasion to advance money to PW1 and though PW1 repaid the money in excess of the amount received, petitioner was demanding excess amount. On 25.1.2001 at about 7.30 p.m while PW1 and his family including PWs. 2 and 3 were viewing the television, petitioner came to that house and called Pw1 out and when PW1 approached petitioner he demanded further amount and when it was refused, petitioner caught hold of the collar CRRP 3364/2008 2 of the shirt worn by PW1 and smashed on the left eye of PW1 causing hurt. Seeing it PW2 the wife intervened and petitioner pushed her to the ground by holding her at the back of neck and when PW1 tried to rescue her he was again assaulted. It is alleged that petitioner thereby committed the offences under section 341, 323, 452, 427 and 354 of Indian Penal Code. Based on Exts.P1 First Information Statement, Ext.P4 FIR was prepared and crime registered. PW8 investigated the case and laid a final report which was taken cognizance by the learned Magistrate. Petitioner pleaded not guilty. On the evidence of PWs. 1 to 5 and Exts.P1 to P4 and portion of the statement of PW2 recorded under section 161 of Code of Criminal Procedure as Ext.D1, learned Magistrate found the petitioner guilty of the offences under sections 452, 341 and 323 of IPC. He was found not guilty of the offence under section 354 and 427 of IPC and was convicted CRRP 3364/2008 3 and sentenced for the other offences. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.230/2006. Learned Sessions Jude on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for one month for the offence under section 452 IPC, in addition to a fine of Rs.2500/- and in default simple imprisonment for one month, simple imprisonment for one month for the offence under section 341 IPC, simple imprisonment for one month and a fine of Rs.1000/- for the offence under section 323 IPC and in default simple imprisonment for one month . The conviction and sentence is challenged in this revision. 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel argued that the courts below did not properly appreciate the evidence and in the CRRP 3364/2008 4 absence of independent witness, relying on the evidence of PWs. 1 to3 courts below should not have convicted the petitioner. It is also argued that in any case the sentence awarded is excessive. 5. Learned Magistrate and learned Sessions Judge analysed the evidence of PWs.1 to 3 and found their evidence credible. Though independent witness was not examined, it is to be born in mind that the incident took place in the house of PWs. 1 to 3 and no independent witness could be expected to be present there. Therefore non-examination of the independent witness is not fatal. The question is whether the evidence of Pws. 1 to 3 is credible and reliable. 6. Ext.P3 wound certificate with the evidence of PW3 establish the injuries sustained by PW1. The evidence of PW1 is fully corroborated by the evidence of PW2 and 3. I find no reason to differ with the findings of the courts below on the CRRP 3364/2008 5 credibility and reliability of the evidence of PWs 1 to 3. Their evidence establish that while PWs.1 to 3 were inside the house petitioner came there by about 7.30 p.m and called PW1 and when he moved towards petitioner he caused hurt to PW1 and when PW2 tried to intervene, she was also manhandled. Evidence also establish that petitioner wrongly restrained PW1 and inflicted the injuries after committing lurking house trespass. Conviction of the petitioner for the offence under sections 341,323 and 452 of IPC is perfectly legal. 7. Then the only question is with regard to the sentence. It was argued that sentence awarded by the learned Sessions Judge warrants interference. Though learned counsel appearing for petitioner argued that leniency is to be shown, learned Sessions Judge was very lenient and sentenced the petitioner only to simple imprisonment for one month in addition to a fine of Rs.2500/- for the CRRP 3364/2008 6 offence under section 452 IPC, eventhough the punishment provided is imprisonment which could be extended upto a period of seven years. The sentence awarded for the offence under section341 and 323 was simple imprisonment for one month. That sentence was directed to be run concurrently with the sentence awarded under section 452 IPC. In such circumstance, no interference is warranted in the sentence also. Revision is dismissed. M.SASIDHARAN NAMBIAR JUDGE Tpl/-