IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 Crl.Rev.Pet.No. 452 of 2002 ----------------------------- CRA.24/1999 OF ADDL. SESSIONS COURT, (FAST TRACK) NO.1, PALAKKAD SC.16/1992 OF PRL. ASSISTANT SESSIONS COURT, PALAKKAD .................... REVN. PETITIONERS: APPELLANTS/ACCUSED. ------------------------------------------------------------------ 1. SWAMINATHAN, S/O.IDUMBAN, PALAKKAL PARAMBU, VALLIKODE, PUDUPPARIYARAM, PALAKKAD. 2. PRABHAKARAN, S/O.VISWANATHAN, PALAKKAL PARAMBU, VALLIKKODE, PUDUPPARIYARAM, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: RESPONDENT/COMPLAINANT. -------------------------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. REJI JOSEPH. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = CRL.R.P. 452 OF 2002 = = = = = = = = = = = = = DATED THIS, THE 14TH DAY OF NOVEMBER, 2002. O R D E R Petitioners are the accused in S.C. 16 of 1992 on the file of the Assistant Sessions Judge, Palakkad. The Sub Inspector of Police, Hemambika Police Station, in Crime No. 37 of 1991, prosecuted the revision petitioners alleging offences under Sections 447 and 307 read with Section 34 I.P.C. with an allegation that at 10.30 a.m. on 4.3.1991, the revision petitioners, in furtherance of their common intention committed criminal trespass to the house of PW.1 and the second revision petitioner commanded to murder PW.1 whereupon the first revision petitioner targeted a cut at the neck of PW.1 with M.O.1 sword. PW1 warded off the cut and as a result it fell on his hand and sustained grievous injury. He was rushed to the District Hospital, Palakkad wherein PW.9 was the police surgeon. Ext.P4 is the wound certificate issued by him. PW.1 was subsequently referred to Medical College Hospital, Coimbatore where he had undergone treatment from 4.3.1991 to 30.4.1991 in proof of which Ext.P6 treatment certificate was produced by the prosecution. On the basis of Ext.P1 F.I. statement given by CRL. R.P. 452/2002 2 PW.2, the Assistant Sub inspector of Police, who was examined as PW.11, registered a case for which Ext. P5 First Information Report was prepared. The investigation was taken over by PW.13, the Sub Inspector, who, after completing the investigation, filed the charge sheet before the local magistrate. 2. On finding that the offence alleged is exclusively triable by a Court of Session, the case was committed to the Court of Session, Palakkad, from where it was made over to the Principal Assistant Sessions Judge, Palakkad. The revision petitioners pleaded not guilty to the charge when framed and read over to them. Therefore, they were sent for trial. The revision petitioners took a defence of total denial though their presence at the spot was not disputed. No defence evidence was let in. The learned Assistant Sessions Judge, after trial, arrived at a finding of guilt. Consequently, the revision petitioners were convicted for offences under sections 307 and 447 read section 34 I.P.C. and the first revision petitioner was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 10,000/- under Section 307 I.P.C. and to undergo simple imprisonment for three months for offence under Section 447 I.P.C. The second revision petitioner was sentenced to rigorous imprisonment for five years and a fine of Rs. 10,000/- for offence under Section 307 IPC and for CRL. R.P. 452/2002 3 simple imprisonment three months for offence under Section 447 IPC. In Crl. A. 749 of 1994, this Court set aside the conviction and sentence; and the case was remanded to the trial court for fresh disposal. Thereafter the trial court arrived at a finding that the prosecution had succeeded to establish offences only under Sections 326 and 447 r/w Section 34 I.P.C. Accordingly, the revision petitioners were sentenced to rigorous imprisonment for three years and a fine of Rs. 10,000/- under Section 326 I.P.C., and simple imprisonment for two months under Section 447 I.P.C. Assailing the above conviction and sentence, Crl. A. 24 of 1999 was filed before the Sessions Judge, Palakkad. The appeal was made over to the Additional Sessions Judge (Ad hoc)-1. By the impugned judgment dated 12.4.2002, the Additional Sessions Judge confirmed the above conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was preferred. 3. I have heard the learned counsel appearing for the revision petitioner as well as the Public Prosecutor. PW.1, the defacto complainant, PW.2, the sister and PW.3 the sister-in-law of PW.1 had given evidence in support of the prosecution case. The evidence of PW.9, the Police surgeon supported by Ext.P4 wound certificate would show that PW.1 had through CRL. R.P. 452/2002 4 and through cut wound between index finger and middle finger extending on the front aspect up to the distal third of right forearm and on the back aspect up to the wrist; tendens and carpel bones cut. PW.1 was in a semi conscious condition at the time of admission. He was later referred to the Medical College Hospital, Coimbatore and as evident by Ext.P6, PW.1 had to undergo hospitalized treatment till 30.4.1991. The nature of injury would show that PW.1 had sustained grievous hurt. The nature of the injury is not at all assailed by the learned counsel for the revision petitioners. PW.1 had given evidence regarding the cut injury inflicted by the first revision petitioner after trespassing into the house. Pws. 2 and 3 had given evidence to the effect that revision petitioners committed criminal trespass to the house of PW.1 and enquired about Pazhanimala who is the brother of PW.1. Since PW.1 could not hear the statement by the revision petitioners, he showed some gestures. Thereupon, the second revision petitioner commanded to murder PW.1. Responding to the command, the first revision petitioner inflicted a cut injury with M.O.1 sword which is admittedly a deadly weapon. Though PWs 1 to 3 were subjected to searching cross examination, no material as disclosed to disbelieve them. Going by their evidence, I find that the courts below had correctly relied upon their testimony to come to a conclusion of guilt. CRL. R.P. 452/2002 5 4. The learned counsel for the revision petitioner persuasively argued that there is no involvement of the second revision petitioner. The evidence of PW.2 would convincingly establish that it was on the command of the second revision petitioner, the first revision petitioner inflicted the cut injuries on PW.1. The presence of the revision petitioners at the house of PW.1 is not disputed. They have no good explanation for going to the house of PW.1 at that time with M.O.1 sword. At no stretch of imagination, it cannot be concluded that the second revision petitioner, who was accompanying the first revision petitioner who was armed with M.O.1 sword, was not aware of the intention. Common intention is very evident. Therefore, I find no merit in the submission made by the learned counsel for the revision petitioners that there is no evidence to establish the involvement of the second revision petitioner. I find that the trial court and the appellate court are correct in coming to the conclusion of guilt for offence under Sections 326 and 447 r/w Section 34 I.P.C. There is no reason to interfere with the conviction under challenge. 5. Regarding the sentence, learned counsel submitted that the sentence awarded is very harsh and that the incident occurred about twenty years back and thereafter, there is no untoward incident. It is true that regarding the conduct of the revision petitioners subsequent to the crime, CRL. R.P. 452/2002 6 there is no material before me. Therefore, it can be concluded that there is no bad conduct on the side of the revision petitioners subsequent to the crime. But it cannot be ignored that the target was the neck of the victim and that M.O1 was a very deadly weapon. If PW.1 did not ward off the attack, sometimes the cut might have fell on his neck and death might have been caused. However, fortunately, it did not happen. Evidently it is a narrow escape. The nature of injury and weapon speaks volumes about the force of the cut and the intention. In this view of the matter it cannot be said that the sentence awarded is anyway harsh. But having due regard to the nature of the injury sustained, I find that the victim is to be adequately compensated and that the compensation awarded is not at all sufficient. Therefore, in my opinion, modification of the sentence is warranted. I find that a sentence of rigorous imprisonment for two years and a fine of Rs. 25,000/- (Rupees twenty five thousand) each for offence under Section 326 IPC r/w 34 IPC would be justified. For offence under Section 447 IPC the sentence awarded by the courts below is moderate. In the result, while confirming the conviction, the sentence for offence under Section 326 r/w 34 IPC is reduced to rigorous imprisonment for two years and a fine of Rs. 25,000/- (Rupees twenty five thousand) each. In default of payment of fine, the revision petitioners shall undergo simple CRL. R.P. 452/2002 7 imprisonment for six months. The conviction and sentence under Section 447 IPC are sustained. The sentences shall run concurrently. Fine amount, if collected, shall be paid to PW.1 as compensation. P.S. GOPINATHAN, (JUDGE) Knc/- CRL. R.P. 452/2002 8 P.S. GOPINATHAN, J. = = = = = = = = = = = CRL.R.P. 452 OF 2002 = = = = = = = = = = = = = J U D G M E N T DATED: 14TH NOVEMBER, 2002.