IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3822 of 2008() ------------------------------ CRA.546/2006 of SESSIONS COURT, PALAKKAD CC.145/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER(S): --------------------- 1. JAYASEELAN, S/O. LATE SOOSA MANICKAM, KIRIYAM PALLAM, VADAKARAPTHY, CHITTUR, PKD DIST. 2. JOHN STEPHEN, S/O. LATE SOOSA MANICKAM DO......DO..... (A3). 3. WILLIAM SELVARAJ, S/O. DUDIYAPPAN, PALASSAMPATHY, VADAKARAPATHY, CHITTUR, PALAKKAD DIST (A5). 4. ALBERT JOSEPH, S/O. SOOSA MANICKAM, KIRIYAM PALLAM, VADAKARAPATHY, CHITTUR, PALAKKAD DIST (A4). 5. STEPEHN, S/O. JOSEPH, PLASAMAPATHY, VADAKARAPATHY, CHITTUR, PALAKKAD DIST. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): --------------- STATE OF KERALA, (KOZHINJAMPARA POLICE CRIME NO.82/04), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3822 OF 2008 ............................................ DATED THIS THE 1ST DAY OF DECEMBER, 2008 ORDER Petitioners are accused in C.C.145 of 2004 on the file of Judicial First Class Magistrate, Chittur. Prosecution case was that they formed themselves into an unlawful assembly with the common object of wrongfully restraining PW1 and 2 and inflict injuries and in furtherance of the common object, wrongfully restrained Pws 1 and 2 and inflicted hurt and committed offences under Section 143, 147, 342 and 324 read with Section 149 IPC. Petitioners pleaded not guilty. Prosecution examined eight witnesses and marked eight exhibits and identified Mos 1 and 2. Petitioners did not adduce any evidence. 2. Learned Magistrate, on the evidence, found the petitioners guilty of the offences under Section 143, 147, 342, 325 read with 149 IPC. Petitioners 2, 3 and 5 were sentenced and others were granted benefit under Probation of Offender's Act. Petitioners challenged the conviction before Sessions Court, Palakkad in Crl.A.546 of 2006 and Crl.A.547 of 2008. Learned Sessions Judge heard both the appeals together and on reappreciation of evidence, confirmed the conviction. Learned CRRP 3822/2008 2 Sessions Judge confirmed the benefit granted to accused 4 and 6 under Probation of Offenders Act and dismissed Crl.A.547 of 2006 filed by them. In Crl.A. 546 of 2006, while confirming the conviction, sentence was set aside and accused 2, 3 and 5 were released on probation by directing to execute a bond with two solvent sureties to keep peace and be of good behaviour for a period of two years. Third accused was also directed to pay compensation of Rs.7000/- which was directed to be recovered as fine. Revision petition is filed challenging the judgment of the learned Sessions Judge. 3. Learned counsel appearing for revision petitioners was heard. The argument of the learned counsel is that appreciation of evidence by the courts below was perverse. It was argued that there is absolutely no evidence to prove existence of an unlawful assembly and on the very ground, there cannot be an unlawful assembly with the common object of preventing PW1 from proceeding to police station to lodge the complaint. It was argued that evidence, if properly appreciated, would result in a finding that revision petitioner has not committed the offence as alleged and therefore the conviction is not sustainable. 4. On hearing the learned counsel and going through the CRRP 3822/2008 3 judgments of the courts below, I find no reason to interfere with the conviction. Though learned counsel vehemently argued that there was misappreciation of evidence and the appreciation of evidence was perverse, on going through the judgment and depositions, I cannot agree with the submission. Learned Magistrate elaborately considered the evidence and learned Sessions Judge also analysed the evidence at length. PWs 1 and 2 are the injured. Evidence of PWs 1 and 2 establish the identity of all revision petitioners including deceased first accused. Though in Ext.P1 F.I.Statement lodged by PW1, apart from petitioners, it was alleged that there were ten others, who were not identified, identity of six accused were properly proved by evidence of PWs 1 and 2. Though learned counsel argued that there was no light as the alleged incident was at about 10 pm and therefore PWs 1 and 2 could not have identified revision petitioners, as rightly found by the courts below, petitioners are persons known to PWs 1 and 2 and their evidence establish that PWs 1 and 2 had identified revision petitioners as persons who are among the other members of the unlawful assembly. Evidence of PW1 was corroborated by the evidence of PW2. In such circumstances, I find no reason to interfere with the factual CRRP 3822/2008 4 finding of courts below that revision petitioners were among the persons who took PWs 1 and 2, after restraining PW1 while proceeding to police station and inflicted the injury on PW1 causing loss of teeth. Learned counsel argued that absence of rope marks on the body in the wound certificate is sufficient to disbelieve the evidence of PWs 1 and 2 that they were not tied with ropes on that night. As rightly found by courts below, on that reason alone, their evidence cannot be disbelieved. It was argued that though the name of third person as a person who inflicted injury on PW1 was wrongly mentioned and the rank given was 6th accused, and therefore findings cannot be accepted. As rightly noted by learned Sessions Judge it could only be by mistake committed by the Magistrate while recording the deposition, because accused could only be referred by name by the witness, and it is Magistrate who had given the rank number of accused when witness had given his name. On that discrepancy, the evidence cannot be disbelieved. Therefore going through the entire evidence and the totality of evidence, I find no reason to interfere with the conviction. 5. Then the question is with regard to sentence. Learned Magistrate granted the benefit of Probation of Offender's Act to CRRP 3822/2008 5 accused Nos. 4 and 6. Learned Sessions Judge, in the light of the report of the Probation Officer, granted the benefit to other accused also. Third accused is directed to pay a compensation of Rs.7000/- to PW1 as it was from the hands of third accused, PW1 lost his teeth. In such circumstances, no interference with regard to sentence is also warranted. Revision petition is dismissed. Petitioners are granted one months time from today to execute the bond and to pay the compensation as directed by learned Sessions Judge. M.SASIDHARAN NAMBIAR, JUDGE lgk/-