IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1578 of 2003()
1. SURESH KUMAR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.N.V.KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :17/08/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.1578 OF 2003
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Dated 17th August, 2010
O R D E R
Third accused in C.C.288/1993 on
the file of Judicial First Class
Magistrate, Ranni filed this revision
challenging his conviction for the ofence
under Sections 341 and 324 read with
Section 34 of Indian Penal Code.
Prosecution case was that on 23/3/1993 at
about 5.30 p.m PW1, the injured while
walking along the way near to the house of
the first accused, asking whether he caused
damage to her rubber tree, she pelted
stones at PW1. It hit on his left shoulder
causing hurt. When first accused took
another stone, PW1 tried to run away. The
petitioner then caught hold of PW1 and
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wrongfully restrained him. Second accused, son
of the first accused, then a student, took
rubber tapping knife and inflicted hurt on the
stomach of PW1 with the knife and all the
accused thereby committed the offences under
Sections 341 and 324 read with Section 34 of
Indian Penal Code. All the accused pleaded not
guilty. Prosecution examined six witnesses and
marked seven exhibits. On the side of the
accused, DW1 was examined. Learned Magistrate
on the evidence found all the accused guilty.
They were convicted for the offences. As second
accused was aged only 19 years and was a
student, learned Magistrate released him under
Section 4 of Probation of Offenders Act and
sentenced the petitioner and first accused to
rigorous imprisonment for six months each for
the offence under Section 324 of Indian Penal
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Code and to rigorous imprisonment for one
month each for the offence under Section 341
read with Section 34 of Indian Penal Code.
Petitioners challenged the conviction and
sentence before Sessions Court, Pathanamthitta
in Crl.A.1/1996. Learned Additional Sessions
Judge on re-appreciation of the evidence, set
aside the conviction of the first accused and
acquitted her. Conviction and sentence of the
first petitioner was confirmed. Revision is
filed challenging the conviction.
2. Learned counsel appearing for the
petitioner and learned Public Prosecutor were
heard.
3. Learned counsel appearing for the
petitioner submitted that first accused stands
acquitted and second accused who inflicted the
injury on PW1 was released on probation and
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petitioner who according to the prosecution
only wrongfully restrained PW1 alone stands
sentenced and learned Magistrate and learned
Sessions Judge did not consider the question
whether on the facts and circumstances of the
case, petitioner could be released on probation
or not. It is submitted that considering the
fact that the incident was in 1993 and
petitioner was not involved in any other
offence before or after the incident, he may be
released on probation.
4. Learned Public Prosecutor
submitted that question of granting probation
to the petitioner be decided after calling a
report from the District Probation Officer.
5. Though first accused was convicted
and sentenced for the offences under Sections
323 and 324 read with Section 34 of Indian
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Penal Code, learned Sessions Judge on re-
appreciation of the evidence acquitted her.
Case against the petitioner is that he
wrongfully restrained PW1 and second accused
who now stands released on probation inflicted
the injury on the stomach of PW1 with a rubber
tapping knife. Neither learned Magistrate nor
learned Sessions Judge considered the question
whether the petitioner could be released on
probation granting the benefit of the
benevolent provisions of Probation of Offenders
Act, even though considering his age, second
accused was released on probation. As stated
earlier, even according to the prosecution
petitioner only wrongfully restrained PW1
which enabled the second accused to inflict
injury on his stomach. There is no case for the
prosecution that petitioner was involved in any
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other offence. In such circumstances, in the
interest of justice, learned Magistrate should
have considered the question whether
petitioner could be released on bail,
especially, when conviction is only for the
offences under Sections 324 and 341 with the
aid of Section 34 of Indian Penal Code. Hence
it is necessary to remand the case to the
learned Magistrate to consider the question.
Revision is allowed in part. Sentence
awarded for the offence under Sections 324 and
341 read with Section 34 of Indian Penal Code
is set aside. Judicial First Class Magistrate,
Ranni is directed to call for a report on the
petitioner from the District Probation Officer.
On getting the report, Magistrate shall
consider the question whether he could be
released either under Section 3 or 4 of the
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Probation of Offenders Act. Judicial First
Class Magistrate, Attingal shall call for a
report from the District Probation Officer and
decide the said question, after hearing the
petitioner and the Assistant Public Prosecutor.
Petitioner is directed to appear before the
Judicial First Class Magistrate, Ranni on
17/9/2010.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.