IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 237 of 2002()
1. ASOKAN, S/O. DIVAKARAN,
... Petitioner
2. GOPALAKRISHNAN, S/O. RAMAKRISHNAN,
3. KESAVAN S/O. KUNJACHAN,
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.K.GOPALAKRISHNA KURUP
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :28/10/2009
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.237 of 2002
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Dated this the 28th day of October, 2009
ORDER
Revision petitioners are accused 1 to 3 in C.C.No.118/1992 of
Judicial First Class Magistrate Court II, Kottayam and appellants in
Crl.Appeal No.242/1996 of Additional Sessions Court, Kottayam.
They were convicted under Sections 114,326, 447, 427 and 324 read
with Section 34 of IPC and are sentenced to undergo rigorous
imprisonment for six months and to pay a fine of Rs. 1,000/- each , in
default, to undergo simple imprisonment for a further period of three
months under Section 326 of IPC. They are further sentenced to
undergo rigorous imprisonment for a period of one month each under
Section 447 of IPC and to undergo rigorous imprisonment for three
months under Section 427 of IPC. No separate sentence was imposed
under Section 324 of IPC. Their conviction and sentence were
confirmed in appeal. Now the accused persons have come up in
revision challenging their conviction and sentence.
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2. The case of the prosecution as shaped in evidence before
the trial court was that on December 17, 1989 at about8.30 P.M. on
account of the previous enmity, the accused persons with the intention
of causing hurt trespassed into the courtyard of the building of PW1
and PW2 bearing door No.152A of Ward No. XII of Panachikkadu
Panchayath and on the instigation of third accused, first accused cut
PW2 with a sword stick and second accused beat PW1 and PW2 with
an iron rod and inflicted the injuries described in Exts.P2 and P3
wound certificates. In the incident PW1 lost her gold chain worth Rs.
2,100/- and that thereby the accused persons have committed the
offences punishable under Sections 447, 114, 324, 326, 427 read with
Section 34 of IPC.
3. Initially the case was taken on file by Chief Judicial
Magistrate’s Court, Kottayam as C.C.No.66/1990 which was made over
to the Judicial First Class Magistrate Court II, Kottayam and refiled as
C.C.NO.118/1992. When the accused persons appeared before the
trial court, they pleaded not guilty to a charge under Section 427, 114,
324, 326 , 447 read with Section 34 of IPC. PWs 1 to 9 were examined
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and Exts.P1 to P7 were marked on the side of the prosecution. When
questioned under Section 313 of Cr.P.C. by the trial court, they denied
the entire incident. On the side of the accused persons, DW1 was
examined. The trial court on an appreciation of evidence found the
revision petitioners guilty of the offences punishable under Sections
447, 114, 324, 326 , 427 read with Section 34 of IPC and sentenced
them as aforesaid which is confirmed in appeal. Now the accused
persons have come up in revision challenging their conviction and
sentence.
4. The following points arise for consideration :
1) Whether the conviction of the revision
petitioners under Sections 447, 114, 324, 326 , 427
read with Section 34 of IPC by the trial court which
is confirmed in appeal can be sustained ?
2) Whether the sentence imposed is
excessive or unduly harsh ?
Point No.1
5. PWs 1 to 9 were examined. Exts.P1 to P7 were marked on
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the side of the prosecution. PWs 1 to 2 are the injured persons. PW1 is
the mother of PWs 2 and 3. PW5 is the only independent witness to
prove the incident who turned hostile and did not support the
prosecution. PW4 is the doctor who initially treated PWs 1 and 2 and
issued the wound certificates Ext.P2 and P3. PW6 is the attestor to the
scene mahazer. PW7 is the Head Constable who prepared the FIR.
PW8 is the Sub Inspector of Police who conducted investigation in this
case. PW9 is the Doctor who issued the discharge certificate-Ext.P7
which shows that PW2 sustained fracture on the skull.
6. The lower court records are not called for in this case.
Therefore, the counsel for the revision petitioners produced the copies
of the depositions in this case. I have gone through the evidence of
PWs 1 to 3. I find no reason to disbelieve their evidence. Further trial
court has chosen to believe their evidence and the lower appellate court
confirmed the said finding of the trial court. I find no reason to come
to a different conclusion.
7. The main argument advanced by the defence counsel was
that as no independent witnesses were examined in this case and that
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therefore the interested version of PWs 1 to 3 cannot be believed. I
find no merit in the above contention. Both the courts below have
chosen to believe their evidence. I find no special reason to disbelieve
their evidence. In my view the trial court as well as the lower appellate
court is perfectly justified in believing their evidence.
8. It was next argued by the counsel for the revision
petitioner that the incident occurred at 8.30 P.M., that there was no
sufficient light therein to identify the accused persons and that
therefore the version of PWs 1 to 3 cannot be believed. There is no
substance in the above contention. The accused persons are neighbours
of PWs 1 to 3. Further PW2 testified that there was electric light in the
building at the time of the incident. Therefore the argument of the
counsel for the revision petitioner that PWs 1 to 3 would not have
identified the accused persons is without any merit.
9. In an attempt to show that there was no electric light at the
scene of incident, DW1 a neighbour of PWs 1 to 3 were examined by
the accused. He would say that there was no electric light at the scene
of incident. But in Ext.P4 scene mahazer presence of electric light is
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mentioned. That being so, the trial court is perfectly justified in
rejecting the evidence of DW1.
10. The next question is whether a charge under Section 326
will lie against the accused persons. The grievous injury sustained by
PW2 is fracture on the head as seen from Ext.P7 discharge certificate
issued by PW7. Therefore, both the courts below are justified in
convicting the accused persons under Section 326 of IPC. Thus I
confirm the conviction of the accused persons under Sections 326, 447,
427, 324 and Section 114 of IPC read with Section 34 of IPC.
Point No.2
10. As regards the sentence, the trial court imposed a sentence
of rigorous imprisonment for six months and a fine of Rs. 1000/- each
under Section 326 of IPC and rigorous imprisonment for one month
each under Section 447 of IPC and rigorous imprisonment for three
months each under Section 427 of IPC. No separate sentence was
imposed under Section 324 of IPC. The incident occurred in 1989 i.e.
about 20 years back. The accused persons are neighbours of PWs 1 to
3 . Taking into consideration all these aspects, I feel that a sentence of
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imprisonment till the rising of court and a fine of Rs. 10,000/- each , in
default , to undergo simple imprisonment for six months each under
Section 326 of IPC and a fine of Rs. 500/-each under Section 447 of
IPC and a fine of Rs.1000/- each under Section 427 of IPC would meet
the ends of justice.
In the result, Criminal Revision Petition is allowed in part.
Conviction of the revision petitioner under Section 326, 447, 114, 324,
427 read with Section 34 of IPC is confirmed. The sentence is
modified to the effect that accused persons are sentenced to undergo
imprisonment till the rising of court and to pay a fine of
Rs 10,000/- each, in default, to undergo simple imprisonment for six
months each under Section 326 of IPC. They are further sentenced to
pay a fine of Rs. 500/ – each under Section 447 of IPC , in default, to
undergo simple imprisonment for two months each. They are further
sentenced to pay a fine of Rs. 1000/- each under Section 427 of IPC, in
default, to undergo simple imprisonment for one month each. No
separate sentence is imposed under Section 324 of IPC. Out of the fine
amount, if realised, Rs.5,000/- shall be paid to PW1 and the balance
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amount to PW2 as compensation as provided under Section 357(1)
Cr.P.C. The accused persons shall surrender before the trial court on or
before 30-11-2009 to receive the sentence. Time is granted for
payment of fine upto 30-12-2009.
P.Q.BARKATH ALI
JUDGE
sv.
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