IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 Crl.Rev.Pet.No. 293 of 2002 CRA.207/1998 of ADDL.SESSIONS COURT, KOTTAYAM CC.105/1991 of JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANUR .................... REVN. PETITIONER: APPELLANTS/ACCUSED: 1. MAANI @ KOCHU, S/O. MAANI, CHEROLICKAL HOUSE, PADINJATTINKARA,PULIYANOOR VILLAGE, MEENACHIL. 2. MATHEW @ MATHAI, S/O. MAANI OF -DO- -DO-. 3. OUSEPPACHAN @ OUTHA, S/O.MAANI, -DO- -DO-. 4. JOSE, S/O. MAANI OF -DO- -DO-. 5. JOSEMON, S/O.MAANI OF -DO- -DO-. 6. SAJI, S/O.MAANI OF -DO- -DO-. BY ADV. SRI.M.J.THOMAS RESPONDENTS: RESPONDENT/COMPLAINANT: THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KEALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON 18/01/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.293 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January 2008 ORDER This revision petition is at the instance of the accused, six in number, who have been concurrently found guilty under Sections 143, 144, 447, 323, 324 read with Section 149 IPC, both by the trial court and the appellate court. 2. Petitioners were sentenced to pay a fine of Rs.500/- each for the offence under Section 143 IPC, Rs.1,000/- each for the offence under Section 144 IPC, and a fine of Rs.500/- each for the offence under Section 447 IPC. It was further directed that in default of payment of fine, petitioners shall be liable to undergo simple imprisonment for one month each for each of the offences. For the offences punishable under Section 323 IPC, petitioners were directed to suffer simple imprisonment for one month each and for the offence under Section 324 IPC, they were sentenced to undergo simple imprisonment for two months each. 3. The prosecution case in brief was that on July 7, 1991 at about 12 midnight, the accused had, in furtherance of their Crl.R.P.No.293 OF 2002 :: 2 :: common object to cause hurt to PW1 and PW2, formed themselves into an unlawful assembly and trespassed into the property of PW1. Accused No.1 beat PW1 on his left cheek and accused No.2 cut PW1 with a chopper resulting in a bleeding injury on the left thump. Accused No.2 kicked on the stomach of PW2, the wife of PW1. All the accused had beaten PW1 and PW2 resulting in abrasions and pain. Previous enmity was attributed as the alleged motive. Kidangoor Police had registered crime No.50/91 against the petitioners and after completing the investigation petitioners were charge sheeted. 4. The prosecution had examined PWs1 to 13 and marked Exts.P1 to P6 on its side. DW1 was examined on the side of the defence. The learned Magistrate, on a careful examination of the oral and documentary evidence on record, found the petitioners/accused guilty of the offences alleged against them and they were accordingly convicted and sentenced as mentioned above. 5. The learned Sessions Judge in an appeal re-evaluated the oral and documentary evidence on record and concurred with the Crl.R.P.No.293 OF 2002 :: 3 :: finding entered by the trial court. Hence, this revision petition. 6. It is contended by learned counsel for the petitioners that the courts below were not justified in accepting the prosecution case to hold the petitioners guilty. It is pointed out by the learned counsel that, admittedly, accused No.2 had suffered serious injuries in the connected incident in which PWs1 to 3 were the aggressors. Kidangoor Police had registered crime No.51/91 against PWs1 to 3 in this connection for offences punishable under Sections 323 and 324 read with Section 34 IPC and they were tried in C.C.106/91 before the Judicial Magistrate of First Class, Ettumanoor. But after trial, the accused in the above case were acquitted. 7. It is the contention of the learned counsel that the above aspects, particularly the fact that the police had registered a counter case against PWs 1 to 3 in this case, had not been considered by the learned Magistrate while holding the petitioners guilty. It is brought to my notice that petitioner No.2 had sustained grievous injuries measuring 6 cm x 1 cm x 1 cm at the oceipetal region of the scalp. Learned counsel has taken me Crl.R.P.No.293 OF 2002 :: 4 :: through the depositions of the material witnesses namely, PWs 1 to 7. 8. But as rightly pointed out by the learned Public Prosecutor, the courts below had meticulously examined the evidence on record and found that the prosecution had succeeded in proving the charge against the petitioners/accused. He further points out that it had come out in evidence that the accused had trespassed into the residential compound of PWs 1 and 2 and unleashed the attack on them using chopper, grinding stone etc. 9. However, it is pertinent to note that the version given by the injured before the Doctor was at variance from what they had stated before the police. In Ext.P1 F.I. Statement (Ext.P4 FIR) there was no mention about any attack by the accused with grinding stone. It is revealed from the evidence on record that all the witnesses are relatives and PWs 1 and 2 are residing in the neighbourhood of the accused. Further, it had come out in evidence that some dispute had been pending between the two families in connection with the death of a dog. The fact remains Crl.R.P.No.293 OF 2002 :: 5 :: that the accused in the counter case had been acquitted and the petitioners are now sentenced to suffer imprisonment for one month and two months each respectively for the offences under Sections 323 and 324 IPC. 10. Having perused the materials available on record, I am satisfied that the sentence of imprisonment is not warranted. Therefore, while confirming the order of conviction under all counts, the sentence of imprisonment imposed on the petitioners under Sections 323 and 324 is set aside. In lieu of the substantive sentence of imprisonment, petitioners shall pay Rs.2,500/- each as fine for the above offences, and in default of payment of fine they shall suffer simple imprisonment for two months each. On realisation of the fine amount PWs 1 and 2 shall be paid Rs.5,000/- each as compensation. Sentence imposed on the petitioners under the other three counts is confirmed. Revision petition is allowed to the above extent. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.293 OF 2002 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.293 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 18th Jan. 2008