Kerala High Court
Kunhali @ Mon vs The State Of Kerala on 30 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 30TH DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944
CRL.A NO. 1576 OF 2007
AGAINST THE JUDGMENT DTD 20/7/2007 IN SC 362/2005 OF ADDITIONAL
SESSIONS JUDGE (ADHOC)-II, KALPETTA
APPELLANTS/COUNTER PETITIONERS 1 TO 7:
1 KUNHALI @ MON, S/O.HAMSA, 28 YEARS
MANOTTIYIL HOUSE, CHEEYAMBAM P.O., VALIYAKUNISHU,
S.BATHERY TALUK, WAYANAD DISTRICT.
2 NIZAR, S/O.AHAMED, 25 YEARS
PURAMATTATHIL HOUSE, CHEMBAKAMOOLA P.O., KELAKAVALA,
S.BATHERY TALUK, WAYANAD DISTRICT.
3 FAIZAL, S/O.AHAMED, 28 YEARS
POYILIL HOUSE, CHEEYAMBAM P.O. IRULAM AMSOM,
S.BATHERY TALUK, WAYANAD DISTRICT.
4 SHAJI, S/O.JOY, 34 YEARS CHAVARA
PUZHAYIL HOUSE, SEETHA MOUND P.O., PADICHIRA AMSOM,
S.BATHERY TALUK, WAYANAD DISTRICT.
5 KUNHUMON @ NOUSHAD, S/O.AHAMED
26 YEARS, POYILIL HOUSE, CHEEYAMBAM P.O., IRULAM AMSOM,
S.BATHERY TALUK, WAYANAD DISTRICT.
6 ASHWAK, S/O.KUNHUMUHAMMED, 23 YEARS
PURAMATTATHIL HOUSE, CHEEYAMBAM P.O., S.BATHERY TALUK,
WAYANAD DISTRICT.
7 UMESH, S/O.RAGHAVAN, 24 YEARS
ATHIRATHI HOUSE, AMARAKUNHI, CHEEYAMBAM P O,
S.BATHERY TALUK, WAYANAD DISTRICT.
BY ADV SRI.A.C.DEVY
RESPONDENT/STATE:
THE STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
BY ADV.SRI.VIPIN NARAYAN, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
19.09.2022, THE COURT ON 30/9/2022 DELIVERED THE FOLLOWING:
2
Crl.Appeal No.1576 of 2007
C.S.SUDHA, J.
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Crl.Appeal No.1576 of 2007
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Dated this the 30th day of September, 2022
JUDGMENT
This appeal under Section 374(2) Cr.P.C. filed by the accused in S.C.No.362/2005 on the file of the Addl.Sessions Judge, Ad hoc - II, Kalpetta, challenge the conviction entered and sentence passed against them for the offences punishable under Sections 143, 147, 148, 341, 324 read with Section 149 IPC.
2. The prosecution case is that the accused, seven in number, due to their enmity towards PW1 and in furtherance of their common object of committing culpable homicide of PW1, on 01/11/2004 at 4 p.m., formed themselves into an unlawful assembly armed with deadly weapons and wrongfully restrained PW1, who was on duty as driver of a bus. They voluntarily caused hurt to PW1 with a jack handle and attempted to commit culpable homicide. When PW2 and PW3 tried to intervene and prevent the assault, the accused wrongfully restrained them and voluntarily caused hurt to them also. Hence the accused, as per the final report, are alleged to have 3 Crl.Appeal No.1576 of 2007 committed the offences punishable under Sections 143, 147, 148, 341, 308 read with Section 149 IPC.
3. On the basis of Ext.P1 FIS of PW1, PW12, the then Assistant Sub Inspector, Pulpally Police Station, registered Crime No.309 of 2004, i.e., Ext.P1(a) FIR. PW13 and PW14 are stated to be the Investigating Officers. PW14, the then Circle Inspector, Pulpally Police Station, is stated to have completed the investigation and submitted the charge sheet alleging the commission of aforesaid offences by the accused.
4. On appearance of the accused before the court below, they were furnished with copies of all the prosecution records. On 25/10/2006, the court below framed a charge for the offences punishable under Sections 143, 147, 148, 341, 308 read with Section 149 IPC, which was read over and explained to the accused, to which they pleaded not guilty.
5. The prosecution examined PWs.1 to 14 and got marked Exts.P1 to P9 and MO1 in support of their case. After the close of the prosecution evidence, all the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. All the accused denied those circumstances and 4 Crl.Appeal No.1576 of 2007 maintained their innocence.
6. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused were asked to enter on their defense and adduce evidence in support thereof. No oral evidence was adduced by the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment found all the accused guilty of the offences punishable under Sections 143, 148, 324, 341 r/w Section 149 IPC. They were acquitted of the offences under Section 308 r/w Section 149 IPC. All the accused have been sentenced to pay a fine of ₹500/- each for the offences punishable under Sections 143, 148 and 341 IPC and rigorous imprisonment for 3 months each and to a fine of ₹1,000/- each for the offences punishable under Section 324 IPC. In default of payment of fine, they have been directed to undergo two weeks' rigorous imprisonment each for the offences punishable under Sections 143, 148 and 341 IPC respectively and to one month under Section 324 IPC.
8. In the appeal memorandum, it is alleged that the court below without properly appreciating the facts, circumstances and evidence, has 5 Crl.Appeal No.1576 of 2007 wrongfully convicted the accused persons and hence the judgment is liable to be set aside.
9. The only point that arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the accused by the court below are sustainable or not.
10. Heard Adv.A.C.Devy, the learned counsel for the appellants and Adv.Vipin Narayan, the learned Senior Public Prosecutor.
11. On going through the impugned judgment, I find no reasons to interfere with the findings of the court below. The evidence and materials on record have been properly analysed and the findings arrived at. For the offences punishable under Sections 143, 148 and 341 IPC, the sentence imposed is only fine which in the circumstances of the case, is quite appropriate. Therefore no interference whatsoever is called for into the findings of the court below relating to the offences relating to the said offences. However, for the offence punishable under Section 324 IPC, the accused have been sentenced to rigorous imprisonment for three months' each and to a fine of ₹1,000/- each and in default of payment of fine, to undergo imprisonment for one month.
6Crl.Appeal No.1576 of 2007
12. On going through Exts.P4 to P6, the wound certificate of PWs.1 to 3, no grievous injuries are seen to have been sustained by them. Exts.P4 to P6, the wound certificates of PW1 and PW3 respectively, show that they had suffered only pain pursuant to the incident. Ext.P5 wound certificate of PW2 shows that he had sustained a small abrasion on his elbow. Therefore, sentence of three months' rigorous imprisonment seems to be disproportionate. Hence to that extent, the finding of the court below needs to be interfered with. As far as the findings relating to the other offences are concerned, I find no reason to interfere and therefore the conviction and sentence of the court below for the offences punishable under Sections 143, 148 and 341 is confirmed.
13. As far as the offence under Section 324 IPC is concerned, the sentence is modified and all the accused are sentenced to undergo imprisonment till the rising of the court and to pay a fine of ₹1,000/- each and in default of payment of fine, to undergo simple imprisonment for three weeks. As directed by the court below, if the fine amount is realised, an amount of ₹3000/- each shall be payable to PW1 to PW3.
In the result, the appeal is partly allowed and the sentence relating to the 7 Crl.Appeal No.1576 of 2007 offence punishable under Section 324 IPC alone is modified. All the accused are sentenced to imprisonment till the rising of the court and to a fine of ₹1000/- each and in default of payment of fine, to undergo simple imprisonment for three weeks. Out of the fine amount if realised, ₹3,000/- each shall be paid to PW1 to PW3. The sentence relating to the offences punishable under Sections 143, 148 and 341 IPC of the court below is confirmed. The appellants shall appear before the court below on 19/12/2022 for receiving the sentence. The lower court records shall be transmitted forthwith to the court below.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/