IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 758 of 2001()
1. MICHAEL
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.G.GOPALAKRISHNAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :15/10/2009
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No. 758 OF 2001
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Dated this the 15th day of October , 2009
ORDER
The revision petitioner is the first accused in C.C.No.200/1992 of
Judicial First Class Magistrate Court II, Nedumangadu and appellant in
Crl. Appeal No.280/1995 of Sessions Court, Thiruvananthapuram. He
was convicted under Sections 324, 341 read with Section 34 of IPC and
Section 27 of Arms Act and sentenced to undergo rigorous
imprisonment for six months under Section 324 of IPC , simple
imprisonment for one month under Section 341 of IPC and rigorous
imprisonment for three months under Section 27 of Arms Act. The
accused 3 and 4 were found not guilty and acquitted by the trial court.
The lower appellate court confirmed the conviction and sentence of the
revision petitioner. The first accused has now comp up in revision
challenging his conviction and sentence.
2. The case of prosecution as shaped in evidence before the
trial court is that the revision petitioner along with three others with the
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common intension of causing hurt to PW1, the injured, attacked him
with a sword stick on January 26, 1992 at about 6.10 p.m. and inflicted
injuries described in Ext.P6 wound certificate on him.
3. The accused persons on appearance before the trial court
pleaded not guilty to a charge under Sections 324, 341 of IPC and
Section 27 of Arms Act. PWs 1 to 6 were examined and Exts.P1 to P6
and MO1 were marked. When questioned under Section 313 Cr.P.C.,
the accused denied the entire incident. No defence evidence was
adduced.
4. The trial court on an appreciation of evidence found the
first accused guilty of the offences punishable under Sections 324, 341
read with Section 34 of IPC and Section 27 of Arms Act and convicted
him thereunder and sentenced him as aforesaid. The trial court
acquitted accused 3 and 4 and refiled the case against accused No.2 as
he was absconding. The lower appellate court confirmed the
conviction and sentence of the first accused/revision petitioner. Now
the first accused has come up in revision challenging his conviction
and sentence.
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5. The following points arise for consideration :
1) Whether the conviction of the revision
petitioner under Sections 324, 341 read with Section
34 of IPC and Section 27 of Arms Act by the trial
court which is confirmed in appeal can be sustained ?
2) Whether the sentenced imposed is
excessive or unduly harsh ?
6. PWs 1 to 6 were examined and Exts.P1 to P6 and MO1
was produced on the side of the prosecution before the trial court.
PW3 is the defacto complainant and the injured. He testified in terms
of the prosecution case. I have gone through the evidence of PW3. No
serious discrepancies were brought out during cross examination to
discredit his evidence.
7. Counsel for the revision petitioner argued that the
uncorroborated version of PW3 cannot be accepted as he has testified
falsely due to political rivalry . I find no substance in the above
submission made by the counsel for the revision petitioner. Merely
because there was political rivalry between the accused persons and
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PW3, his evidence cannot be brushed aside. The trial court as well as
the lower appellate court has chosen to believe his evidence. I find no
reason to come to a different conclusion. Further his evidence is
supported by medical evidence. PW 6, the doctor who examined him
found corresponding injuries on the body of PW3. PWs 2 and 3, the
independent witnesses turned hostile and did not support the
prosecution. PW4 is the attester to scene mahazer. PW5 is the S.I. of
Police who conducted investigation and laid the charge before the trial
court.
8. As regards the charge under Section 27 of the Arms Act, it is
brought to my notice by the learned counsel for the revision petitioner
that a separate notification is necessary to show that the arms used for
committing the offence come within the purview of prohibited arms as
defined under section 2(1)(c) of the Arms Act and as provided under
Rule 3, Schedule I of the Arms Rules. It is admitted by the learned
Public Prosecutor that no such notification was issued in this case. The
above question was considered by the Apex Court in Subhash
Ramkumar Bind @ Vakil and another V. State of Maharashtra (2003)1
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SCC 506 and held that without the issuance of a notification, which
stands as a requirement of the statute, question of conviction under
Section 27(3) of the Arms Act would not arise. Therefore, no charge
under section 27 of the Arms Act will lie against the revision
petitioner/1st accused. Hence, the conviction and sentence imposed
against him under Section 27 of the Arms Act has to be set aside.
9. As regards the sentence imposed by the trial court under
Sections 324, 341 read with Section 34 IPC, the revision petitioner/1st
accused was sentenced to undergo rigorous imprisonment for six
months under Section 324 IPC and simple imprisonment for one month
under Section 341 IPC. The injuries sustained by PW3 are 5 cms. long
incised muscle deep wound over the left supra spintous area over the
scapula, 2 cms. long incised muscle deep wound on the anterior aspect
of palm at the root of little finger on right side and 2 cms. diameter
contusion on the right frontal area, as seen from Ext.P6, the wound
certificate. It shows that PW3 sustained only very simple injuries.
Taking into consideration all these facts and also the fact that the
incident occurred on January 26, 1992, i.e., about 18 years ago, I feel
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that a sentence of fine of Rs.3,000/- under section 324 IPC and
Rs.500/- under section 341 IPC would meet the ends of justice.
10. In the result, the revision petition is allowed in part. The
conviction of the revision petitioner/1st accused under Sections 324 and
341 rendered by the trial court, which was confirmed in appeal by the
lower appellate court is upheld. The sentence imposed by the trial
court, which is confirmed in appeal is set aside. The revision petitioner
is sentenced to pay fine of Rs.3,000/-, in default to undergo simple
imprisonment of three months under section 324 IPC and to pay fine of
Rs.500/-, in default to undergo simple imprisonment for one month
under section 341 IPC. The conviction and sentence under Section 27
of the Arms Act are set aside and the revision petitioner is acquitted of
the said charge. If the fine amount is realized, the same shall be paid to
PW3 as compensation as provided under Section 357(1) of the Code of
Criminal Procedure. Two months’ time is granted to the revision
petitioner to pay the fine amount. His bail bonds are cancelled.
P.Q. BARKATH ALI, JUDGE
sv/mn
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