IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 119 of 2005(D)
1. T.E.THOMAS 44/1745,
... Petitioner
2. GEORGEKUTTY T.E., THARUVATHU HOUSE,
3. THARAKAN (CHERIYAN)
Vs
1. SUSAMMA KOSHY, W/O. LATE JOHN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :SRI.K.SASIKUMAR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/12/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.Nos.119 of 2005 & 2374 of 2009
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Dated this the 23rd day of December, 2009
ORDER
The revision petitioners are accused in C.C.No.237 of 1997
and C.C.No.236 of 1997 respectively on the file of the Judicial
Magistrate of the First Class-II, Chengannur. Both prosecution
arose out of the same transaction. Hence, these revision
petitions are disposed by a common order. In C.C.No.236 of
1997, there are two accused. The prosecution was initiated on
the basis of a final report filed by the Sub Inspector of Police,
Mavelikkara in Crime No.11 of 1994 alleging offences under
Sections 451 and 427 read with Section 34 I.P.C. The law was
put in notion on the basis of a First Information Statement
lodged by one John S/o.Yohannan who is now no more. Ext.P2 is
the First Information Statement recorded by PW.5, the Sub
Inspector of Police, Mavelikkara. Ext.P1 is the First Information
Report. In the First Information Statement there were three
persons mentioned as accused. After investigation, the charge
sheet was laid before the Judicial Magistrate of the First Class,
Mavelikkara against two persons after omitting the second
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accused in the First Information Report. The learned Magistrate
took cognizance and proceeded as C.C.494/94. While so, it was
noticed to the defacto complainant that the second accused in
the First Information Report was omitted. The defacto
complainant, thereupon filed a complaint before the learned
magistrate against 3 accused persons as arrayed in the First
Information Report alleging the same offence. It was taken to
file as C.C.No.353 of 1995. Later, both cases were made over to
the Judicial Magistrate of the First Class-II, Chengannur where
the cases were re-numbered as C.C.No.236 and 237 of 1997
respectively. The learned magistrate proceeded with the trial
simultaneously and by judgment dated 15/11/2000, in both
cases, the learned magistrate arrived a conclusion of guilty.
Consequently, the accused were convicted in both cases. In
C.C.No.237 of 1997, the accused were sentenced to rigorous
imprisonment for six months and a fine of Rs.3,000/- under
Section 451 I.P.C. and to rigorous imprisonment for three
months under Section 427 I.P.C. In the light of the sentence
awarded in C.C.No.237 of 1997, no separate sentence was
awarded in C.C.No.236 of 1997.
Crl.R.P.No.119 of 2005
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2. Aggrieved by the above conviction and sentence in
C.C.No.237 of 1997, Criminal Appeal No.306 of 2000 was filed.
Aggrieved by the conviction in C.C.No.236 of 1997, Criminal
Appeal No.494 of 2008 was filed.
3. By judgment dated 14/12/2004 Criminal Appeal
No.306 of 2000 was dismissed. The other appeal was filed
thereafter. In filing that appeal, there was a delay of 2865 days
which was sought to be condoned in Criminal M.P.No.1171 of
2008. The learned Additional Sessions Judge, before whom the
appeal was filed, dismissed the petition to condone the delay.
Consequently, Criminal Appeal No.494 of 2008 was dismissed as
barred by limitation.
4. As against the conviction and sentence in C.C.No.237
of 1997 as confirmed in Criminal Appeal No.306 of 2000,
Crl.R.P.No.119 of 2005 is filed. As against the order dismissing
Criminal Appeal No.494 of 2008 as barred by limitation, Criminal
R.P.No.234 of 2009 was filed. Both revision petitions were heard
jointly.
5. Pws.1 to 3 examined in C.C.No.236 of 1997 are the
witnesses to prove the occurrence. PW.4 is an attestor to Ext.P3
scene mahazar. PW.5 is the Investigating Officer. In C.C.No.237
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of 1997 the wife of the defacto complainant was examined as
PW.1. The occurrence witnesses, who were examined as Pws.1
to 3 in C.C.No.236 of 1997, were examined as Pws.2 to 4. PW.5
is the Investigating Officer. Pws.1 and 3 in C.C.No.236 of 1997,
who were examined as Pws.2 and 4 in the other case had given
evidence to the effect that they had witnessed the 3 accused in
C.C.No.237 of 1997 committing mischief on a car bearing
registration No.KL-4-1991 kept parked in the porch of the house
of the defacto complainant. PW.1 in C.C.No.237/97, the wife of
the defacto complainant had deposed that she who was working
as a professor at Christian College, Chengannur had been
residing along with her husband and the son who was then
studying in 10th standard. On 8/3/1994 herself, her husband and
the son had gone out after locking the key of the gate at about 9
a.m. and at the time when they left home, the car was parked at
the porch and that when she came back at 4.15 p.m. she found
the vehicle including the engine were damaged and that the
mischief was committed by all the three accused because of the
long standing dispute between them. However she had not
witnessed the mischief alleged. PW.2 in C.C.No.236 of 1997 who
was examined as PW.3 in the other case had denied of
Crl.R.P.No.119 of 2005
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witnessing the mischief.
6. PWs.1 and 3 in C.C.No.236 of 1997 who were
examined as PWs.2 and 4 in the other case had deposed that at
about 11.30a.m. he had seen the three accused in C.C.No.237 of
1997 committing mischief on a Maruti car kept parked in the car
porch of the house of the defacto complainant by beating with
iron rod. Ext.P3 Mahazar in C.C.No.236 of 1997, copy of which
was marked as Ext.P1 in the other case, would show that
damages were sustained to the car as alleged by the prosecution.
The mahazar would convincingly establish the mischief to the
car. In fact, the damage is not disputed. Only the involvement of
the revision petitioners are disputed. Regarding that the
prosecution case is supported by the testimony of PW.2 and
PW.4 examined in C.C.No.237 of 1997. According to the learned
counsel for the revision petitioner, PW.2 is a chance and stock
witness and for that reason no credibility can be given to his
evidence. As against the PW.4, the allegation is that he is not
aware as to what is the bonnet of the car and that he is not
aware of the number of the car. In the light of the submission
made by the learned counsel for the revision petitioner I had
carefully gone through the judgments of the courts below. I was
Crl.R.P.No.119 of 2005
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taken through the evidence of Pws.2 and 4 by the learned
counsel for the revision petitioner. In fact the revision
petitioners could not succeeded to bring out any material to
impeach the veracity of those witnesses. I fail to find any reason
to reject the evidence of Pws.2 and 4. It was also argued by the
learned counsel for the revision petitioner that according to
Pws.2 and 4 the mischief was committed with the help of iron
rod and that the tearing of the body of the car would show that
some sharp edged weapon might have been used. With due
regard to the damages noted, I fail to accept the arguments
advanced by the learned counsel. There is no material to come
to a conclusion that the damages noted in the vehicle could not
be caused with an iron rod.
7. The learned counsel had also argued that in
C.C.No.236 of 1997 while Pws.1 and 3 therein were examined
there is no mention that the second accused in C.C.No.237 of
1997 was present. Whereas in the other case it was deposed so.
On going through the evidence of Pws.1 and 3 there is nothing
on record to show that those witnesses had denied the presence
of second revision petitioner Crl.R.P.No.119 of 2005.
In C.C.No.236 of 1997 only 2 accused were tried and their
Crl.R.P.No.119 of 2005
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presence alone was spoken by the witnesses. It was not even put
to the witnesses during cross-examination that second revision
petitioner Crl.R.P.no.119 of 2005 was not present at the time of
commission of crime. His presence is very well spoken in
C.C.No.237 of 1997 where all the three accused were
prosecuted. I find that the evidence of Pws.1 and 3 in
C.C.No.236 of 1997 (Pws.2 and 4 in the other case) instill
confidence. There is no reason to disbelieve them. I find that the
courts below had correctly arrived at a conclusion that all the
revision petitioners in Crl.R.P.No.119 of 2005 had committed
mischief. In the other case also mischief is established.
8. The scene mahazar would show that the car porch
was attached to the house of the defacto complainant and it
being a place where the car was parked, the entry to the car
porch would amount to house trespass as defined in Section
442 I.P.C. So, offence under Section 451 I.P.C. is also
established. I find that the conviction under challenge is not
liable to be interfered in exercise of the revisional powers.
Taking into account that the revision petitioners in R.P.119/05
are aged 73, 60, 74 years respectively and that they are related
and neighbours to the defacto complainant, the first accused is
Crl.R.P.No.119 of 2005
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an engineer and that the second accused is a pensioner, I find
that the revision petitioners are entitled to a little leniency in
sentence, especially taking into account that when the victim and
the assailants are related the substantive sentence may not yield
any result other than thickening the enemity. I find that a
sentence of imprisonment till rising of the court with an order to
pay Rs.20,000/- each as compensation to the defacto complainant
would meet the ends of justice.
9. In the result, Crl.R.P.No.119 of 2005 is allowed in
part. While confirming the conviction, the sentence is reduced
to imprisonment till rising of the court and each of them to pay
Rs.20,000/- to PW.1 as compensation under Section 357(3) of the
Code of Criminal Procedure. In default of payment of
compensation, the revision petitioners shall undergo simple
imprisonment for four months. Criminal R.P.No.2374 of 2007 is
dismissed as devoid of merits. The revision petitioners in
Crl.R.P.No.119 of 2005 shall pay the compensation on or before
6/2/2010, on which date they shall surrender before the trial
court for execution of the sentence.
P.S.GOPINATHAN, JUDGE
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