Kerala High Court
Y.P.Koya vs State Of Kerala on 4 March, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940
Crl.Rev.Pet.No. 912 of 2005
IN CRA 481/2003 of D.C. & SESSIONS COURT,KOZHIKODE DATED 04-03-2005
IN CC 319/2000 of J.M.F.C.-I,THAMARASSERY DATED 11-08-2003
REVISION PETITIONER(S)/APPELLANT/ACCUSED NO.2:
Y.P.KOYA, S/O. MAMUKUTTY,
POOLAKKACHALIL HOUSE, KAKKAD AMSOM,, KOZHIKODE TALUK,
MUKKAM POLICE STATION.
BY ADV.SRI.SUNIL V.MOHAMMED
RESPONDENT(S)/RESPONDENT/COMPLAINANT::
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,,
HIGH COURT OF KERALA,
ERNAKULAM.
BY SR. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-07-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ds
P.UBAID, J.
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Crl.R.P. No. 912 of 2005
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Dated this the 02nd day of July, 2018
ORDER
The revision petitioner herein is the second accused in C.C. No.319 of 2000 of the Judicial First Class Magistrate Court-I, Thamarassery. The case against the accused Nos. 1 and 3 was split up and refiled when they remained consistently absent during trial. The prosecution case is that the three accused assaulted the defacto complainant Sirajudheen at the Highway Hotel at Mukkom, due to previous enmity, and inflicted injuries on his body with an iron rod. The police registered the crime on the complaint made by the said Sirajudheen, and after investigation, submitted final report in court under Sections 341, 323, 324 and 506(i) read with Section 34 of the Indian Penal Code.
2. All the accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed Crl.R.P. No. 912 of 2005 -2- against them. The prosecution examined four witnesses, including the defacto complainant, and proved Exts.P1 to P7 documents in the trial court.
3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence.
4. On an appreciation of the evidence, the trial court found the second accused guilty under Sections 341, 323, 324 and 506(i) IPC. He was convicted with the aid of Section 34 IPC on the finding that the alleged assault was jointly made by the three accused sharing their common intention.
5. Aggrieved by the judgment of conviction dated 11.08.2003, the second accused approached the Court of Session, Kozhikode, with Crl.A. No. 481 of 2003. In appeal, the learned Sessions Judge, Kozhikode, confirmed the conviction, but modified the sentence under Sections 324 and 506(i) IPC. The sentence under Section 341 and Crl.R.P. No. 912 of 2005 -3- 323 IPC was maintained in appeal. Now the second accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.
6. On hearing both sides, and on a perusal of the materials, I find no reason for interference in the findings and the conviction made by the courts below concurrently against the revision petitioner under Section 324 IPC. But I do not find sufficient evidence or material to sustain the conviction under Sections 341, 323 and 506(i) IPC.
7. Of course, in Ext.P1 complaint, the defacto complainant has alleged wrongful restrain, criminal intimidation etc.. But when examined as a witness, he did not state anything of that sort. His evidence is practically about the voluntary infliction of injuries on his body by the accused with an iron rod. Thus, what is at the best proved by the evidence of the complainant is the offence under Section 324 IPC. Of course, it is true that the weapon of offence could not be seized by the police. The complainant Crl.R.P. No. 912 of 2005 -4- has given evidence regarding the nature of the weapon. He is definite that the accused inflicted injuries on his body with an iron rod.
8. PW2 is the doctor examined to prove Exts.P2 and P3 wound certificates. The doctor's evidence shows that the defacto complainant had sustained some simple injuries in the incident. The doctor noted a swelling over the right elbow joint, a scratch mark on the dorsal of left hand, and an abrasion on the right joint. It appears that the complainant's friend, Sulfiquer was also assaulted by the accused. But he was not examined as a witness in the trial court. Ext.P2 wound certificate shows that Sulfiquer had only complaint of pain. Ext.P3 wound certificate relates to the complainant. It stands proved by the evidence of PW1, and also the medical evidence given by PW2 that the accused had inflicted simple injuries on the body of PW1 with an iron rod. This constitutes the offence punishable under Section 324 IPC. Crl.R.P. No. 912 of 2005 -5-
9. Now the question of sentence. The trial court imposed only a fine sentence of Rs.500/- each under Sections 341 and 323 IPC. But under Sections 324 and 506(i) IPC, the trial court imposed simple imprisonment for one year each. In appeal, the learned Sessions Judge confirmed the sentence under Sections 323 and 341 IPC, but modified the other sentence. Accordingly, the jail sentence under Sections 324 and 506(i) IPC was reduced to simple imprisonment for one month each. On a consideration of the various aspects, I feel that the minimum sentence possible, and also the maximum fine sentence will be the adequate sentence in this case. The trial court has not imposed any fine sentence under Section 324 IPC.
In the result, this revision petition is allowed in part. The revision petitioner is found not guilty of the offences under Section 341, 323 and 506(i) IPC, and he is acquitted of those offences in revision. But the conviction under Section 324 IPC is confirmed. However, the sentence Crl.R.P. No. 912 of 2005 -6- imposed by the court below under Section 324 IPC will stand modified as follows:
(a) The jail sentence imposed by the court below under Section 324 IPC will stand modified and reduced to imprisonment till rising of the court.
(b) In lieu of such modification, the revision petitioner/second accused is sentenced to pay a fine of Rs.5,000/- (Rupees Five Thousand only) under Section 324 IPC.
(c) An amount of Rs.4,000/- from the fine amount, if realized, shall be paid to PW1 as compensation.
The revision petitioner will surrender before the trial court within three weeks from this date to serve out the modified sentence, and to make payment of the fine amount voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence, and realize the Crl.R.P. No. 912 of 2005 -7- amount of fine, or enforce the default sentence of simple imprisonment for two months.
Sd/-
P.UBAID JUDGE ds 02.07.2018 //True Copy// P.A. To Judge