IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.Rev.Pet.No. 1515 of 2001() ------------------------------ CRA.9/2000 of ADDL.SESSIONS COURT, PARAVUR CC.704/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONERS / APPELLANT / ACCUSED : --------------------- 1. BABU, S/O. MADHAVAN, THAIVALIPPIL VEEDU, MANAKKAPPADI KARA, KARUMALOOR VILLAGE. 2. JAYAN, S/O. KUTTAPPAN, MANNAMBALAM VEEDU, MANAKKAPPADI KARA, KARUMALOOR VILLAGE. BY ADV. MR. SAIBY JOSE KIDANGOOR RESPONDENTS: --------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, ALUVA, CR. 554/94. BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kkms/ P.Q.BARKATH ALI, J. = = = = = = = = = = = = = = == = = = = = = Crl. R.P. No. 1515 OF 2001 = = = = = = = = = = = = = == = = = = = = = Dated this the 3rd day of November 2009. JUDGMENT The revision petitioners are the accused in Calendar Case No. 704/1995 of Judicial First Class Magistrate-I, Aluva and appellants in Criminal Appeal No. 119/2000 of Additional Sessions Court, North Paravur. They were convicted under Section 353 and 427 r/w Section 34 of Indian Penal Code and are sentenced to undergo rigorous imprisonment for three months each under Section 353 I.P.C. and rigorous imprisonment for one month each for offence punishable under Section 427 of Indian Penal Code. The sentences were ordered to run concurrently. On appeal, the learned Sessions Judge set aside the conviction of the appellants/accused under Section 427 of I.P.C. and they were acquitted of the said charge. But their conviction and sentence under Section 353 r/w Section 34 I.P.C. was confirmed. Now accused 1 and 2 have come up in revision challenging their conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court in brief is this. 3. On October 26, 1994 at about 6 p.m., the defacto complainant PW1 was working as Conductor in Bus No. S.481 of Crl. R.P. No. 1515 OF 2001 2 K.S.R.T.C. on the route Paravur to Aluva. One of the passengers on board first accused took two tickets for Rs.1.20 each from Paravur to Manakkapady and gave a ten rupee note. PW1 issued two tickets and returned the balance Rs.7/- and 60 ps. At that time, first accused asked PW1 to pay 20 ps. more as balance. The first accused then said to him that only 40 ps. was returned and 20 ps. is balance. A wordy quarrel ensued first accused in the bus fisted PW1 and snatched away the ticket rack and money bag and flung it on the platform of the bus. Second accused then hit PW1 on his lower jaw. PW1 got down at Manakkapady and went to the hospital along with the driver of the bus. Thus, according to the prosecution, accused persons have committed the offences punishable under Section 427, 353 r/w 34 of I.P.C. 4. On appearance before the trial court, the accused pleaded not guilty to a charge under sections 427, 353 r/w 34 of I.P.C. PW 1 to 8 were examined. Exts.P1 to P5 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C., the accused denied the entire incident. DW1 was examined on the side of the accused persons. 5. The trial court on an appreciation of evidence found accused persons 1 and 2 guilty of the offences punishable under Crl. R.P. No. 1515 OF 2001 3 Section 427, 353 r/w Section 34 of the Indian Penal Code and convicted them thereunder and sentenced them as aforesaid. On appeal, the conviction of the revision petitioners under Section 427 r/w Section 34 of the Indian Penal Code was set aside and they were acquitted of the said charge. But the conviction and sentence under Section 353 r/w 34 I.P.C. are confirmed. The accused 1 and 2 have come up in revision challenging their conviction and sentence. 6. Heard the Counsel for the revision petitioners and the Public Prosecutor. 7. The following points arise for consideration. (1) Whether the conviction of the revision petitioners under Section 353 r/w 34 of I.P.C. rendered by the trial court which is confirmed in appeal can be sustained? (2) Whether the sentence imposed is excessive or unduly harsh? 8. Point No.1:- The case of the prosecution as testified by PW1 the defacto complainant is that on October 26, 1994 at 6 p.m. while he was travelling as a conductor in K.S.R.T.C. bus bearing registration No. S.481 from Paravur to Aluva, the Crl. R.P. No. 1515 OF 2001 4 accused persons assaulted him and snatched away the ticket rack and money bag and threw it to the floor of the bus, that the first accused restrained him and fisted him and the second accused hit him on the lower jaw and that thereby accused persons have committed offences punishable under Section 427 and 353 r/w Section 34 I.P.C. 9. PW1 is the conductor of the bus and the defacto complainant. PW2 is the driver of the bus. PWs 2, 3 and 4 are the eye witnesses to the incident. They supported PW1 on all material particulars. They have identified accused persons also. The trial court as well as the lower appellate court has chosen to believe their evidence. I am not inclined to come to a different conclusion. 10. PW5 is the Doctor, who examined PW1 and issued a wound certificate Ext.P2. He found corresponding injuries on the lower jaw of PW1. PW5 has opined that such injuries could be caused as alleged by the prosecution. PW6 is an official of K.S.R.T.C., who on getting information reached the place of occurrence and took the ticket rack and cash bag to the office. There was a shortage of Rs.49.10 paise and two tickets were seen torn. PW7 is the Sub Inspector of Police who prepared Crl. R.P. No. 1515 OF 2001 5 Ext.P3 Scene Mahazar. PW8 is the Head Constable who prepared F.I.R. on the basis of Ext.P1. Ext.P1(a) is the body mahazar prepared by him. 11. I have gone through the evidence of Pws 1 to 4. I find no reason to disbelieve their evidence. Accused persons were known to PW1 previously. No serious discrepancies or inconsistencies were pointed out in the evidence of PW1 to PW4. The case of the accused as stated by them when questioned under Section 313 of Cr.P.C. and is spoken to by DW1 that on hearing the noise in the bus they went there and tried to pacify the real person who quarreled with the PW1 was also not proved. Both the Lower Courts disbelieved the above case of accused persons. For all these reasons, I am inclined to uphold the finding of the trial court which is confirmed in appeal that the accused persons have committed the offences punishable under Section 353 r/w 34 of I.P.C. That being so, the conviction of the revision petitioners under Section 353 r/w Section 34 of I.P.C. has to be confirmed. 12. As regards the sentence, the incident occurred in 1994 and the accused persons are aged persons. Taking into consideration all these facts, I feel that a sentence of Crl. R.P. No. 1515 OF 2001 6 imprisonment till the rising of the Court and a fine of Rs.5,000/- would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioners under Section 353 r/w Section 34 I.P.C. is confirmed. Revision petitioners are sentenced to undergo imprisonment till the rising of Court and to pay a fine of Rs.5,000/- each in default to undergo Simple Imprisonment for two months each. The fine amount if realized shall be paid to PW1 as compensation as provided under Section 357(1) of Cr.P.C. One month's time is granted for payment of fine. Their bail bonds are cancelled. The accused persons shall surrender before the trial Court on or before 30.12.2009 to receive the sentence. P.Q.BARKATH ALI JUDGE kkms/