IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2793 of 2009()
1. RAJESH, AGED 26 YEARS,
... Petitioner
2. SALAM, AGED 24 YEARS,
3. BHOOBHESH, S/O.AYYAPPAN,
4. SUNIL, S/O.THANKAPPAN,
5. PRAVEEN, S/O.SASIDHARAN,
6. DEVADAS, AGED 32 YEARS,
7. SHIJU, AGED 25 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.2793 of 2009
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Dated this the 28th day of August, 2009
O R D E R
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This revision is in challenge of judgment of learned Additional
Sessions Judge, North Parur in Crl. Appeal No.883 of 2004 confirming
conviction and sentence of petitioners. Petitioners, seven in number
faced trial in C.C.No.1170 of 2001 of the court of learned Judicial First
Class Magistrate-, Aluva, for offence punishable under Sections 143,
147, 148, 341, 323 and 324 read with 34 of the Indian Penal Code (for
short, “the IPC“). Case is that on 1.1.2001 at about 2.00 a.m. while
P.Ws.1 to 3, brothers were traveling in a car and reached the scene of
occurrence they found fire set up on the road and when they stopped
the car and enquired, petitioners beat on the car and assaulted P.Ws.1
to 3 with stick. Petitioner No.1 is stated to have assaulted P.W1 with
stick while petitioner Nos.2 and 3 are stated to have assaulted P.Ws.2
and 3 with sticks. According to the prosecution P.W1, himself a
doctor gave first aid to P.Ws.2 and 3 and himself went to the Little
Flower Hospital, Angamaly on the same day at 11.25 a.m. He was
examined by P.W4., who issued Ext.P2, wound certificate. It is
revealed that P.W.1 had suffered lacerated wound and contusions.
P.Ws.1 to 3 gave evidence regarding the alleged incident and
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identified petitioners as the assailants. First information regarding the
alleged incident was given by P.W1. That was recorded by P.W.5 who
registered the case.
2. It is contended by learned counsel that first information
was lodged only after eight days of the alleged incident. Further
contention is that there is no proper identification of the assailants.
3. It is true that though the alleged incident was on 1.1.2001
Ext.P1, first information was given only on 9.1.2001. P.W1 has an
explanation for that – he stated that he was not aware of the name
and addresses of the assailants and hence he enquired about that, got
name and addresses of assailants and gave first information. Exhibit
P2, wound certificate of P.W.1 shows that he was examined by P.W4
on the date of the incident at 11.25 a.m. At that time P.W.1 had a
history of assault as the cause of injury. Exhibit P2 corroborates the
evidence of P.Ws.1 to 3 regarding P.W1 sustaining injury on 1.1.2001.
In that circumstance mere delay in giving first information is not by
itself is fatal.
4. So far as identity of petitioners is concerned, P.Ws.1 to 3
have identified petitioners as the assailants. It is true that according
to P.Ws.1 to 3 they had no previous acquaintance with petitioners
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and P.W1 would say that he had enquired with the local people who
had given name and addresses of petitioners. Going by the evidence
of P.Ws.1 to 3 there were other persons at the place of occurrence at
the relevant time. Learned counsel took me through the evidence of
P.Ws1 to 3. On going through the evidence of P.Ws.1 to 3 I have no
reason to disbelieve the identification of the petitioners made by
P.Ws.1 to 3. Conviction therefore does not require interference.
5. What remained for consideration is whether sentence
awarded is excessive. Learned magistrate has imposed imprisonment
for various periods on petitioners. It is requested that leniency may be
shown to petitioners.
6. It is seen that the accident occurred in the New Year eve.
Even evidence of P.Ws.1 to 3 would show that petitioners and others
were making merry on the public road. There is no case of any other
motive for the incident. Though P.Ws.2 and 3 also suffered injury
there is no evidence as to the nature of injury suffered by them. A
further fact to be noted is that petitioners were all in the age group of
25 years during the relevant time. It is not shown that they are
involved in any other offence before or after this incident. In the
circumstances instead of sending them behind bars they must be
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given an opportunity to mend their ways. I am satisfied that simple
imprisonment till rising of the court and sentence of fine are
sufficient in the ends of justice.
Resultantly, this revision petition is allowed in part to the
following extent:
(i) While retaining the conviction of
petitioners for the offence found against them
substantive sentence awarded to them is
modified as simple imprisonment till rising of
the court.
(ii) Each of the petitioners are also
sentenced to pay fine of Rs.500/- for each of
the offence under Secs.143, 145, 148, 341 and
323 IPC and in default to undergo simple
imprisonment for two weeks each under each
count.
(iii) Each of the petitioners are
sentenced to pay fine of Rs.2,000/- for the
offence under Sec.324 and in default to
undergo simple imprisonment for one month
each.
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(iv) Default sentence shall run
consecutively.
(v) Out of the fine if realised Rs.2,000/-
shall be given to P.W1 and Rs.1,000/- each to
P.Ws.2 to 3 by way of compensation.
Petitioners are granted time till 30.10.2009 to deposit fine in the
trail court. They shall appear in the trial court on 31.10.2009 to
receive the sentence. Until then execution of warrant if any against
petitioners will remain in abeyance.
THOMAS P.JOSEPH, JUDGE.
vsv
