IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 14 of 2008()
1. ABOOBACKER, S/O. SAIDALI,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE ASSISTANT SUB INSPECTOR OF POLICE,
For Petitioner :SRI.T.K.SAIDALIKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :03/01/2008
O R D E R
R.BASANT, J
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Crl.R.P.No.14 of 2008
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Dated this the 3rd day of January, 2008
O R D E R
The petitioner is aggrieved by the verdict of guilty,
conviction and sentence imposed in a prosecution for offences
punishable under Section 448, 341 and 323 I.P.C. He now faces
the sentence of S.I for a period of one month under Section 341
I.P.C., 2 months u/s 448 I.P.C and a further period of 3 months u/s
323 I.P.C. Substantive sentences are all directed to run
concurrently.
2. The crux of the allegations against the petitioner is
that on 28.02.07 at 6.30 p.m, he trespassed into the residential
building occupied by Pws 1 and 2. He wrongfully restrained PW2
and assaulted PW1 causing simple hurt to her. PW1 is the wife of
PW2. Accused had allegedly gone to the premises as the
representative of the landlord of Pws 1 and 2, who were in
occupation as tenants of such building, to demand rent. The crux
of the allegations is that when rent was demanded and not paid
by PW2, the accused assaulted PW2. PW1 intervened. She was
also assaulted.
3. Cognizance was taken on the basis of a final report
submitted by the police after investigation. The accused denied
Crl.R.P.No.14 of 2008 2
the offences alleged against him. Thereupon Pws 1 to 6 were
examined and Exts.P1 to P4 were marked. Pws 1 and 2 are the
victims/spouses. Ext.P1 is the F.I statement lodged. PW3 is an
attestor to Ext.P2 scene mahazar. PW4 is the doctor who
examined the victim(PW1) on the date of the incident and issued
Ext.P3 wound certificate. PW5 proved Ext.P4. He conducted the
investigation. PW6 is the brother of PW1 who claimed that he was
present at the scene of the crime and had witnessed the
occurrence. The accused denied the allegations against him in
toto. Under Section 313 Cr.P.C the accused denied all allegations
against him. Through PW3 who was examined by the prosecution
to prove attestation of Ext.P2 scene mahazar, different version
was sought to be advanced. Such version was that an incident
had taken place, but not in the residential building of Pws 1 and 2.
There was no assault by accused on Pws 1 and 2. PW1 had fallen
and suffered the injury. This was the version which was sought to
be advanced through PW3 who obliged the accused during cross
examination. DW1 was examined to contend that he was not the
landlord of the building as claimed by Pws 1 and 2. DW2, a
neighbour was examined to further support the version of PW3 in
cross examination. No material objectives were marked.
Crl.R.P.No.14 of 2008 3
4. The courts below concurrently came to the conclusion
that the version of Pws 1 and 2, which is eminently supported by
the prompt Ext.P3 wound certificate as also Ext.P1 F.I statement
can be safely accepted. Trial court had reservations about
accepting the evidence of PW6, whereas the appellate court found
that the trial court was not justified in rejecting the evidence of
PW6. Accordingly the courts below proceeded to pass the
impugned concurrent judgments.
5. Before me, the learned counsel for the petitioner has
advanced detailed arguments. The learned counsel for the
petitioner reiterates the contentions that were raised before the
courts below. I shall eschew the evidence of PW6 and not enter
into the controversy as to whether the appellate court is justified
in placing reliance on the oral evidence of PW6. At this third tier
of criminal litigation, I find absolutely no reason to discard the
evidence of Pws 1 and 2, which is eminently supported by Exts.P1
F.I statement and P3 wound certificate. The alleged cause
narrated to PW4 recorded in Ext.P3 as also the nature of injury
described in Ext.P3 support the evidence of Pws 1 and 2
eminently. That DW1 is not a landlord is not of any crucial
significance as it is evident that the building stood in the name of
the son of DW1. The convenient version advanced by PW3 in
Crl.R.P.No.14 of 2008 4
cross examination, which is supported by DW2 does not also carry
conviction. Even going by their version, as noted by the courts
below, an incident had admittedly taken place and I find no
reason whatsoever which could have prompted Pws 1 and 2 to
shift the scene of the said crime from anywhere else to their
residential premises.
6. The upshot of the above discussions is that there is
absolutely no reason to invoke the revisional powers of
supervision and correction against the verdict of guilty and
conviction entered against the petitioner.
7. Lastly and finally the learned counsel for the petitioner
submits that the sentence imposed is excessive. Leniency may
be shown to the petitioner. Even accepting the entire allegations,
it can be seen that the petitioner had only gone to Pws 1 and 2 to
collect rent. Some untoward incident and wordy and physical
altercations appear to have taken place even going by the
prosecution evidence. The petitioner may not be compelled to
endure the trauma of incarceration in prison. The sentences may
be modified into one of fine, it is prayed.
8. Having considered all the relevant circumstances, I find
merit in the said submission of the learned counsel for the
petitioner. I am satisfied that deterrence in a case like this does
Crl.R.P.No.14 of 2008 5
not depend on the period of time that the offender spends behind
the bars. A lenient substantive sentence of imprisonment coupled
with an appropriate direction to pay compensation to the victims,
I am satisfied, shall eminently serve the ends of justice.
9. In the result:
a) This Crl.R.P is allowed;
b) The impugned verdict of guilty and conviction of the
petitioner are upheld;
c) But the sentence imposed is modified and reduced. In
supersession of the sentence imposed on the petitioner by the
courts below, he is sentenced to undergo imprisonment till rising
of court on all the three counts. He is further directed to pay an
amount of Rs.6,000/- (Rupees Six Thousand only) in all (Rs.3,000/-
each to PW1 and PW2) as compensation and in default to undergo
S.I for a period of 2 months. If realised the entire amount shall be
released to the complainant.
8. The petitioner shall appear and the sureties shall
produce him before the learned Magistrate on or before
01.02.2008 to undergo the modified sentence hereby imposed.
(R.BASANT, JUDGE)
rtr/-
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