IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Crl.Rev.Pet.No. 14 of 2008() ---------------------------- CRA.226/2006 of ADDITIONAL SESSIONS JUDGE (ADHOC) I MANJERI CC.293/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------- ABOOBACKER, S/O. SAIDALI, VARIKKATHODI HOUSE, MELE VATTAPPARA, KATTIPPARUTHI, KARIPOL POST, MALAPPURAM DISTRICT. BY ADV. SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.SHEENA SAMUEL RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE ASSISTANT SUB INSPECTOR OF POLICE, VALANCHERI. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.14 of 2008 ------------------------------------- Dated this the 3rd day of January, 2008 O R D E R The petitioner is aggrieved by the verdict of guilty, conviction and sentence imposed in a prosecution for offences punishable under Section 448, 341 and 323 I.P.C. He now faces the sentence of S.I for a period of one month under Section 341 I.P.C., 2 months u/s 448 I.P.C and a further period of 3 months u/s 323 I.P.C. Substantive sentences are all directed to run concurrently. 2. The crux of the allegations against the petitioner is that on 28.02.07 at 6.30 p.m, he trespassed into the residential building occupied by Pws 1 and 2. He wrongfully restrained PW2 and assaulted PW1 causing simple hurt to her. PW1 is the wife of PW2. Accused had allegedly gone to the premises as the representative of the landlord of Pws 1 and 2, who were in occupation as tenants of such building, to demand rent. The crux of the allegations is that when rent was demanded and not paid by PW2, the accused assaulted PW2. PW1 intervened. She was also assaulted. 3. Cognizance was taken on the basis of a final report submitted by the police after investigation. The accused denied Crl.R.P.No.14 of 2008 2 the offences alleged against him. Thereupon Pws 1 to 6 were examined and Exts.P1 to P4 were marked. Pws 1 and 2 are the victims/spouses. Ext.P1 is the F.I statement lodged. PW3 is an attestor to Ext.P2 scene mahazar. PW4 is the doctor who examined the victim(PW1) on the date of the incident and issued Ext.P3 wound certificate. PW5 proved Ext.P4. He conducted the investigation. PW6 is the brother of PW1 who claimed that he was present at the scene of the crime and had witnessed the occurrence. The accused denied the allegations against him in toto. Under Section 313 Cr.P.C the accused denied all allegations against him. Through PW3 who was examined by the prosecution to prove attestation of Ext.P2 scene mahazar, different version was sought to be advanced. Such version was that an incident had taken place, but not in the residential building of Pws 1 and 2. There was no assault by accused on Pws 1 and 2. PW1 had fallen and suffered the injury. This was the version which was sought to be advanced through PW3 who obliged the accused during cross examination. DW1 was examined to contend that he was not the landlord of the building as claimed by Pws 1 and 2. DW2, a neighbour was examined to further support the version of PW3 in cross examination. No material objectives were marked. Crl.R.P.No.14 of 2008 3 4. The courts below concurrently came to the conclusion that the version of Pws 1 and 2, which is eminently supported by the prompt Ext.P3 wound certificate as also Ext.P1 F.I statement can be safely accepted. Trial court had reservations about accepting the evidence of PW6, whereas the appellate court found that the trial court was not justified in rejecting the evidence of PW6. Accordingly the courts below proceeded to pass the impugned concurrent judgments. 5. Before me, the learned counsel for the petitioner has advanced detailed arguments. The learned counsel for the petitioner reiterates the contentions that were raised before the courts below. I shall eschew the evidence of PW6 and not enter into the controversy as to whether the appellate court is justified in placing reliance on the oral evidence of PW6. At this third tier of criminal litigation, I find absolutely no reason to discard the evidence of Pws 1 and 2, which is eminently supported by Exts.P1 F.I statement and P3 wound certificate. The alleged cause narrated to PW4 recorded in Ext.P3 as also the nature of injury described in Ext.P3 support the evidence of Pws 1 and 2 eminently. That DW1 is not a landlord is not of any crucial significance as it is evident that the building stood in the name of the son of DW1. The convenient version advanced by PW3 in Crl.R.P.No.14 of 2008 4 cross examination, which is supported by DW2 does not also carry conviction. Even going by their version, as noted by the courts below, an incident had admittedly taken place and I find no reason whatsoever which could have prompted Pws 1 and 2 to shift the scene of the said crime from anywhere else to their residential premises. 6. The upshot of the above discussions is that there is absolutely no reason to invoke the revisional powers of supervision and correction against the verdict of guilty and conviction entered against the petitioner. 7. Lastly and finally the learned counsel for the petitioner submits that the sentence imposed is excessive. Leniency may be shown to the petitioner. Even accepting the entire allegations, it can be seen that the petitioner had only gone to Pws 1 and 2 to collect rent. Some untoward incident and wordy and physical altercations appear to have taken place even going by the prosecution evidence. The petitioner may not be compelled to endure the trauma of incarceration in prison. The sentences may be modified into one of fine, it is prayed. 8. Having considered all the relevant circumstances, I find merit in the said submission of the learned counsel for the petitioner. I am satisfied that deterrence in a case like this does Crl.R.P.No.14 of 2008 5 not depend on the period of time that the offender spends behind the bars. A lenient substantive sentence of imprisonment coupled with an appropriate direction to pay compensation to the victims, I am satisfied, shall eminently serve the ends of justice. 9. In the result: a) This Crl.R.P is allowed; b) The impugned verdict of guilty and conviction of the petitioner are upheld; c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court on all the three counts. He is further directed to pay an amount of Rs.6,000/- (Rupees Six Thousand only) in all (Rs.3,000/- each to PW1 and PW2) as compensation and in default to undergo S.I for a period of 2 months. If realised the entire amount shall be released to the complainant. 8. The petitioner shall appear and the sureties shall produce him before the learned Magistrate on or before 01.02.2008 to undergo the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/- Crl.R.P.No.14 of 2008 6