IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Crl.Rev.Pet.No. 846 of 2001() ----------------------------------- CRA.297/1999 of ADDL. SESSIONS COURT, ALAPPUZHA SC.64/1997 of ASSISTANT SESSIONS COURT, CHERTHALA .................... PETITIONER(S):APPELLANTS.ACCUSED ---------------------------------------------- 1. SRINIVASAN, S/O.RAGHAVAN, VADACHIRAYIL HOUSE, WARD NO.4, THANNEERMUKKOM PANCHAYAT. 2. MURALIDHARAN, S/O. RAGHAVAN, -DO- 3. MADHUSUDANAN, S/O. RAGHAVAN -DO- 4. GIRISH ALIAS ANILKUMAR, S/O. AMBUJAKSHAN, NIVARTHIL, WARD NO.4, THANNEERMUKKOM. 5. LAL, S/O. SUKUMARAN, PUTHENPURAKKALCHIRAYIL, WARD NO.4. THANNEERMUKKOM. 6. ROY, S/O. BHARGAVAN, PEEDIKACHIRAYIL, WARD NO.4, THANNEERMUKKOM. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S):RESPONDENT/COMPLAINANT. -------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.R.P.No.846 of 2001 ---------------------------------------------------- Dated this the 5th day of August, 2011 Order Six accused persons who were convicted by the Assistant Sessions Judge, Cherthala for offences punishable under Sections 143, 147, 148, 149, 427, 452, 324, 326 and 307 IPC are the revision petitioners. They were sentenced to undergo R.I. for five years each, with direction that the sentence will run concurrently. The appeal filed by them before the learned Sessions Judge was dismissed confirming the sentence passed against him. 2. This revision is directed against the said conviction and sentence. 3. The brief facts necessary for the case can be stated as follows: On 16.11.1995 at about 5 PM there was an incident with regard to cutting of grass between P.W.1 and the wife of accused No.1. With regard to the same there was some altercations. P.W.5 sustained injury in that incident and he was hospitalised. On the same day, after some time, at about 5.30 PM the accused formed themselves to an unlawful assembly armed with lances, trespassed into the court-yard of the house of P.W.1. They also Crl.R.P.846/01 2 entered into the house and pulled out P.W.2, the father-in-law of P.W.1 who was an aged man. The accused persons attacked P.Ws.1, 2 and 4. P.W.2 sustained fracture on his right ulna. He had also sustained incised injury on his abdomen. He was subjected to laparotomy and it was revealed that there was 50 ml of blood. There were 3 tears each measuring 0.5 cm on the Mesentery, serosal tear 0.5 cm on the antimesenteric border of jejunum, two small hametoma in the mesentery close to jejunum and the blood in the paritonial cavity mopped out. All the tears were repaired. Ragged edges of the wound were debrided and sutured. P.W.2 had to be treated as an inpatient from 16.11.1995 to 16.12.1995. The evidence regarding the incident spoken to by P.W.1 was corroborated by P.W.2, P.W.4 (one of the injured) and also by P.Ws. 6, 7 and 8. P.W.6 is a neighbour. Accepting the evidence tendered by the injured persons and the other inmates and the neighbour who actually witnessed the incident (P.W.6), the learned trial judge found the accused guilty of the offence as mentioned above. The learned Appellate Judge scanned the evidence again and came to the conclusion that the finding entered by the trial court is perfectly correct and Crl.R.P.846/01 3 concurred with the conviction. 4. Mr.Sanalkumar, learned counsel appearing for the revision petitioners assails the findings of the two courts below on the grounds raised in the revision petition. The learned counsel mainly submits that it cannot be believed at all all these persons had entertained the common object of causing such bodily injuries to P.W.2 or any other inmates of that house or to entertain the common intention of such bodily injury as likely to cause death of P.W.2. The learned counsel submits that the injury which P.W.2 had sustained could have been in the course of a scuffle. It is further contended that there is no clear and cogent evidence to show that any sharp edged weapon was used to cause the incised injury referred to by the doctor in Ext.P3 wound certificate. At any rate, the conclusion arrived at by the courts below that the accused had the common object of causing the murder of P.W.2 cannot be sustained at all and as such the conviction of the petitioners under Section 307 read with Section 149 IPC cannot be sustained. 5. As stated earlier P.W.2 had sustained very serious injuries. The very fact that the incised injuries caused on P.W.2 Crl.R.P.846/01 4 for which laparotomy had been conducted would indicate the intention of the offender who caused that injury. There is evidence to show that the accused had used lances and the injuries were caused when A1 lanced at P.W.2. P.W.2 was actually sitting in the easy chair. He was pulled out of the easy chair and was lanced at by A2 and he was also beaten with the stick portion of the lance on the right hand causing fracture of right ulna. It is clear that P.W.2 did not succumb to the injuries may be thanks to the grace of god. Only because that injury which was bordering jejunum was timely treated, he could be saved. Therefore, the contention that the said act will not attract Section 307 IPC cannot be sustained. Though the accused may not have had the intention to cause death, it can be very well found that it was done with the intention of causing such bodily injury which the offender knew to be likely to cause the death of the person to whom the injury was inflicted. So much so, the challenge against the conviction under Section 307 read with 149 IPC cannot be sustained. The fracture was caused on the right hand by beating with stick portion of lance. Hence, offence under Section 326 IPC is also attracted. It is a case where all the Crl.R.P.846/01 5 accused trespassed into the court-yard with the common object of attacking P.Ws.1, 2 and others. As such the finding entered by the courts below that all of them had the common object and it was in pursuance of that common object they committed rioting with deadly weapons and trespassed into the house which would attract the offences under Sections 143, 147 and 452 read with Section 149 IPC also has to be sustained. When the common object is proved, it is not necessary for the prosecution to find who among the members of the unlawful assembly caused grievous injury or injury which was likely to cause the death of the victim. So all the accused are liable to be convicted. As such the conviction of all the accused persons for the offences mentioned earlier is perfectly justified. The conviction is therefore confirmed. 6. Mr.Sanalkumar, learned counsel for the accused would submit that accused Nos.1 to 3 are from the very same house and that the incident happened because of a very trivial issue regarding cutting and collecting of grass. It was also stated that A1 had lost his job because of the conviction in this case. Therefore, the learned counsel for the revision petitioners Crl.R.P.846/01 6 submits that maximum leniency may be shown to the accused persons. The evidence would show that it was A1 who inflicted the serious injuries mentioned above. Considering all the aspects, the sentence is modified to the extent indicated below: A2 to A6 are sentenced to under R.lI for one year each for the offences under Sections 307 read with 149 and 326 read with 149 IPC. The sentence regarding fine imposed by the trial court stands confirmed. The sentence on the aforesaid accused persons on other counts also stands confirmed. A1 is sentenced to undergo R.I for three years each for the offences under Sections 326 and 307 read with 149 IPC. The sentence regarding fine and the sentence imposed on other counts stands confirmed. The revision is disposed of as above. N.K.BALAKRISHNAN, JUDGE. srd Crl.R.P.846/01 7 Crl.R.P.846/01 8