IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3822 of 2008()
1. JAYASEELAN, S/O. LATE SOOSA MANICKAM,
... Petitioner
2. JOHN STEPHEN, S/O. LATE SOOSA MANICKAM
3. WILLIAM SELVARAJ, S/O. DUDIYAPPAN,
4. ALBERT JOSEPH, S/O. SOOSA MANICKAM,
5. STEPEHN, S/O. JOSEPH,
Vs
1. STATE OF KERALA, (KOZHINJAMPARA POLICE
... Respondent
For Petitioner :SRI.P.K.MOHANAN(PALAKKAD)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/12/2008
O R D E R
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/-