IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 981 of 2000(C)
1. P.K.ABOOBACKER
... Petitioner
Vs
1. FAZILUL ALI
... Respondent
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/06/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.R.P.No.981 of 2000
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ORDER
Defacto complainant, who is the injured and
examined as PW2 in S.C.No.89/1996 on the file of I
Additional Assistant Sessions Court, Thrissur,
filed this revision challenging the order of
acquittal passed by learned Sessions Judge in
Crl.A.No.146/1998. The contention raised in the
revision is that learned Sessions Judge has no
power to entertain an appeal involving a sentence
of imprisonment for more than seven years and
therefore, the order of acquittal is illegal. It is
also contended that learned Sessions Judge did not
consider the prosecution case in the proper
perspective and re-appreciation of evidence was not
proper and on the evidence, learned Sessions Judge
should not have interfered with the conviction.
2. Prosecution case is that the eleven accused
formed themselves into an unlawful assembly on
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18.1.1995 at about 1.15 p.m. and in furtherance of
their common object, trespassed into the house of
PW2, armed with dangerous weapons like iron rod and
wooden stick and with the intention to cause the
death of PW2, first petitioner inflicted a blow on
the head of PW2 with MO1 iron rod and second
petitioner hit him with MO2 wooden stick and the
other accused threw stones at the house of PW2 and
caused damage to the house and also caused injuries
to PW3, a relative and thereby committed the
offences under Sections 143, 147, 148, 452, 324 and
304 read with Section 149 of Indian Penal Code.
Accused pleaded not guilty.
2. Learned Assistant Sessions Judge, on the
evidence of PWs 1 to 13, Exhibits P1 to P13 and Mos
1 and 2 and DWs 1 to 3 and Exhibits D1 to D6, on
the side of the defence, convicted accused 1 to 3,
6 to 8 and 11, except the accused, who were
absconding, for the offences under Sections 143,
147, 148, 452, 324 and 307 read with Section 149 of
Indian Penal Code. They were sentenced to rigorous
imprisonment for seven years and a fine of
Rs.5,000/- each and in default, simple imprisonment
for one year for the offence under Section 307 read
with Section 149 of Indian Penal Code. No separate
sentence was awarded for the offences under
Sections 143 and 147 of Indian penal Code. They
were sentenced to simple imprisonment for six
months each for the offence under Section 452 read
with Section 149 of Indian Penal Code, simple
imprisonment for six months each for the offence
under Section 148 of Indian Penal Code and simple
imprisonment for one year each for the offence
under Section 324 read with Section 149 of Indian
Penal Code. The substantive sentences were directed
to be run concurrently.
3. The first contention raised by the
petitioners is that as the sentence is seven years
for the offence under Section 307 of Indian Penal
Code and one year for the offence under Section 324
of Indian Penal Code, no appeal will lie before the
Sessions Court. Section 374 of Code of Criminal
Procedure provides appeals from convictions. Sub-
section (2) of Section 374 provides that any person
convicted on a trial held by a Sessions Judge or an
Additional Sessions Judge or on a trial held by any
other Court in which a sentence of imprisonment for
more than seven years may appeal to the High Court.
Sub-section (3) provides that save as otherwise
provided in sub-section (2), any person convicted
on a trial by a Metropolitan Magistrate or
Assistant Sessions Judge or Magistrate of the first
class or of the second class, may appeal to the
Court of Session. Therefore, Sessions Judge is
competent to entertain an appeal filed against the
conviction and sentence by Assistant Sessions
Judge, provided, the sentence is imprisonment for
not more than seven years. An appeal will lie
before the High Court against the conviction of a
Assistant Sessions Judge only if the sentence of
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imprisonment is for more than seven years or less.
If the sentence is seven years, an appeal will lie
before the Sessions Court and if the sentence is
more than seven years, an appeal will lie only
before the High Court. It is not aggregate of the
sentence for the different offences convicted that
matters, but the maximum sentence for any of the
offences. Therefore, the contention of the
petitioner that no appeal will lie before the
Sessions Court and Crl.A.No.13/1998 should not have
been entertained by the Sessions Court cannot be
accepted, as the maximum sentence awarded was
imprisonment for seven years for the offence under
Section 307 of Indian Penal Code. An appeal is
perfectly maintainable.
4. Learned counsel would argue that learned
Sessions Judge did not consider the evidence in the
proper perspective and on the evidence, conviction
should not have been interfered. A reading of the
judgment of the learned Sessions Judge shows that
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the learned Sessions Judge has elaborately
considered the evidence and appreciated each item
of evidence in the proper perspective. Learned
Sessions Judge found that in respect of the
incidents that occurred on that fateful day, three
crimes were registered, i.e., Crime Nos.11/1995,
12/1995 and 13/1995 of Vadakkekad Police Station.
Final report submitted in this case, which was
taken cognizance was in Crime No.12/1995. Crime
No.13/1995 relates to an incident which occurred in
front of the house of PW2. Crime No.11/1995 relates
to an incident, which took place at the Primary
Health Centre, where some of the accused were
admitted. Parties of the prosecution witnesses in
this case are accused in the other two crimes.
Learned Sessions Judge found that though refer
reports were filed in Crime Nos.11/1995 and
13/1995, on the facts and circumstances of the
case, prosecution is bound to produce the F.I.
Statements, the scene mahazar and the final reports
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in all the crimes, so that court can evaluate the
materials and decide whether prosecution case is
true or the defence case is true. Learned Sessions
Judge, on analysing the evidence of PWs 1 to 3, the
injured and the eye witnesses, found that according
to the prosecution, entire incident in this case
occurred inside the house of PW2. Based on the
evidence, learned Sessions Judge found that if such
injuries were sustained inside the house of PW2,
there should be some traces of blood in the house,
in view of the injuries sustained, but none was
found. Learned Sessions Judge also found that blood
stains were found in the courtyard of the house of
PW2, probabilising the case of the defence that
injuries sustained were not inside the house but
from outside the house. Learned Sessions Judge also
found that the defence case that when accused 3 to
5 were passing through the road, they were attacked
by PW2 and party and to prevent the attack, the
accused persons had thrown stones at the house of
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PW2 which caused the damage. The fact that damage
was caused to the house of PW2 is admitted by the
prosecution. Learned Sessions Judge, on re-
appreciation of the entire evidence, found that it
is improbable to cause such damage if some among
the accused had gone into the house and inflicted
the injuries, while, the remaining accused threw
stones at the house of PW2, which would have
injured the accused also. It is after proper
appreciation of evidence, learned Sessions Judge
found that prosecution case cannot be true and PWs
1 and 3 could have sustained injuries not from the
house of PW2, as claimed by the prosecution, but in
the incident which took place either outside the
house of PW2 or at the Primary Health Centre, where
the accused were attacked. Considering the entire
evidence and reasonings of the learned Sessions
Judge, it cannot be said that learned Sessions
Judge did not properly appreciate the evidence or
the conclusions arrived at by the learned Sessions
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Judge are not valid and reasonable conclusions that
could be taken on a proper appreciation of the
evidence. In any case, appreciation of evidence
cannot be said to be perverse. When the view taken
by the learned Sessions Judge was after
appreciation of evidence and it is a reasonable
view, no interference is warranted in this
revision.
Revision fails and is dismissed.
23rd June, 2010 (M.Sasidharan Nambiar, Judge)
tkv
CRRP 981/00 10
M.Sasidharan Nambiar, J.
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Crl.R.P.No.981 of 2000
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ORDER
23rd June, 2010