2025:KER:26576 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 CRL.A NO. 108 OF 2006 AGAINST THE JUDGMENT DATED 19.12.2005 IN SC NO.98 OF 2004 OF COURT OF SESSION, MANJERI APPELLANTS/ACCUSED 1 & 2: 1 SHARAFUDEEN S/O.AHAMMEDKUTTY HAJI, PARIYATHODI HOUSE, VETTIKKATTIRI AMSOM, VALLUVANGAD. 2 SIHABUDEEN S/O.MUHAMMED, PARIYATHODI VEEDU, VETTIKKATTIRI AMSOM, VALLUVANGAD. BY ADV K.P.MUJEEB ALI RESPONDENT/RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.VIPIN NARAYAN, PP THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 26.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: 2025:KER:26576 CRL.A NO. 108 OF 2006 2 C.S.SUDHA, J. ------------------------------------------------------- Criminal Appeal No.108 of 2006 ------------------------------------------------------- Dated this the 28th day of March 2025 J U D G M E N T In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused nos.1 and 2 in S.C. No.98/2004 on the file of the Court of Session, Manjeri, challenge the conviction entered and sentence passed against them for the offences punishable under Sections 341 & 324 IPC. 2. The prosecution case as stated in the final report is as follows: Accused nos.1 to 3 were in inimical terms with PW2 as the latter had beaten up accused no.3. Therefore, on 28/09/2003 at about 09:30 a.m., in furtherance of their common intention to retaliate the attack on A3 by PW2, while PW1 and PW2 were 2025:KER:26576 CRL.A NO. 108 OF 2006 3 proceeding in their bicycles from Valluvangad to Oruvambram through Thampanangadi, accused nos.1 and 2 wrongfully restrained them by parking their autorickshaw bearing registration no.KL-10- K 5183 driven by accused no.2 across the road. Accused no.1 sprinkled chilli powder on the face of PWs 1 and 2, took out an iron rod kept inside the autorickshaw, and accused no.2 a stick, and both of them beat PWs 1 and 2, thereby attempting to commit culpable homicide not amounting to murder. Accused no.3 instigated accused nos.1 and 2 to commit the aforesaid act in order to take revenge on PWs 1 and 2 for having beaten him. Therefore, as per the final report, the accused persons were alleged to have committed the offences punishable under Sections 341, 308, 324 & 109 read with Section 34 IPC. 3. Crime No.121/2003, Pandikkad police station, that is, Ext.P5 FIR was registered by PW6, the then Assistant Sub Inspector on the basis of Ext.P1 FIS given by PW1, which was recorded by PW9. The investigation was conducted by PW10, the 2025:KER:26576 CRL.A NO. 108 OF 2006 4 then Sub Inspector, Pandikkad police station, who on completion of the investigation submitted the final report alleging the commission of the offences punishable under the aforementioned sections by accused nos.1 to 3. 4. On appearance of the accused persons, the jurisdictional magistrate after complying with all the necessary formalities as contemplated under Section 209 Cr.P.C. committed the case to the Court of Session, Manjeri. The case was taken on file as S.C. No.98/2004. Thereafter, the case was made over to the Additional Sessions Judge, Fast Track Court-III (Adhoc), Manjeri, for trial and disposal. On appearance of the accused persons before the trial court, a charge under Sections 341, 324, 308, 109 read with Section 34 IPC was framed, read over and explained to the accused persons to which they pleaded not guilty. 5. On behalf of the prosecution, PWs.1 to 10 were examined and Exts.P1 to P10 and MO1 to MO3 were marked in support of the case. After the close of the prosecution evidence, the 2025:KER:26576 CRL.A NO. 108 OF 2006 5 accused persons 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. The accused persons denied all those circumstances and maintained their innocence. 6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused persons. 7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence to find accused no.3 guilty of the offences alleged against him and hence he was acquitted under Section 235(1) Cr.P.C. of all the offences charged against him. Accused nos.1 and 2 have also been acquitted under Section 235(1) Cr.P.C. of the offences punishable under Sections 308 and 109 IPC. However, they have been found guilty of the offences punishable 2025:KER:26576 CRL.A NO. 108 OF 2006 6 under Sections 341 and 324 IPC. Hence, they have been sentenced to undergo rigorous imprisonment for a period of one month and to a fine of 500/- ₹ each and in default of payment of fine to undergo simple imprisonment for a period of 7 days each for the offence punishable under Section 341 IPC and to undergo rigorous imprisonment for a period of two years and to a fine of 5,000/- ₹ each and in default of payment of fine to undergo simple imprisonment for a period of six months each for the offence punishable under Section 324 IPC. The sentences have been directed to run concurrently. Out of the fine amount, if realized, 5,000/- each has been directed to be paid to PWs 1 and 2, the ₹ injured as compensation. Aggrieved, accused nos.1 and 2 have come up in appeal. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against appellants/accused nos.1 and 2 by the trial court are sustainable or not. 2025:KER:26576 CRL.A NO. 108 OF 2006 7 9. Advocate Sri.K.P.Mujeeb was appearing on behalf of the appellants/accused nos.1 and 2. There was no representation for the appellants on several days when the matter was taken up for hearing. Therefore, this Court as per order dated 04/12/2024 directed that the order dated 13/01/2006 suspending the sentence of the accused be withdrawn and the trial court was directed to execute the sentence against the appellants. As there was no representation for the appellants, Adv.Thomas Sabu Vadakekut was appointed on State Brief for the appellants and the matter was adjourned to 19/12/2024. On 19/12/2024, Adv. K.P.Mujeeb appeared before the Court and submitted that it was due to health reasons that he had been unable to appear before the Court on the earlier posting dates and that he was ready to argue the appeal on the next posting date. Therefore, Adv. Thomas Sabu Vadakekut, who was appointed on State Brief, was relieved of his duties and the matter was adjourned for hearing the learned counsel for the appellants. When the matter was taken up for final hearing on 2025:KER:26576 CRL.A NO. 108 OF 2006 8 25/03/2025, there was no representation for the appellants. However, in the interest of justice, one more opportunity was granted and the matter was adjourned to 26/03/2025. On the said day also, there was no representation for the appellants and hence relying on the dictum in Bani Singh v. State of U.P., AIR 1996 SC 2439, this Court is proceeding to consider the case on merits after examining the entire records in the case. Heard the learned Public Prosecutor. 10. PWs 1 and 2 are the injured in this case. PW1, when examined, deposed that while he, along with PW2, were riding along on two bicycles, they saw an autorickshaw coming from the opposite direction. The autorickshaw stopped in front of their bicycles in such a manner as to cause obstruction. From the autorickshaw, accused nos.1 and 2 came out and sprinkled chilli powder on them. Both of them fell down. Accused no.1 then beat PW2 with an iron rod and accused no.2 beat PW1 with a stick. Thereafter, both accused nos.1 and 2 beat PWs 1 and 2. While the 2025:KER:26576 CRL.A NO. 108 OF 2006 9 accused persons were assaulting them, an autorickshaw approached the scene of occurrence. Seeing the autorickshaw approaching, both the accused persons got into their autorickshaw and drove off. PW1 identified MO1 as the stick that was used to beat him and MO2 as the iron rod that was used to beat PW2. PW1 also deposed that the accused left the articles at the place of occurrence in a hurry. The cover containing the chilli powder was identified and marked as MO3. 11. The testimony of PW1 is corroborated by PW2, another injured. Further, the testimony of PWs 1 and 2 is corroborated by the testimony of PW3, an eyewitness. According to PW3, on the said day, while he was proceeding in an autorickshaw, when he reached near the scene of occurrence, he found an autorickshaw parked across the road blocking the road. He saw PWs 1 and 2 coming on their bicycles. He saw somebody throwing something at the children, pursuant to which both of them fell down. At this time, accused no.1 came out of the autorickshaw with MO2 iron 2025:KER:26576 CRL.A NO. 108 OF 2006 10 rod and accused no.2 with MO1 stick and beat up the children. On seeing PW3, the accused persons drove off in their autorickshaw. PW2 identified MO1 and MO2 as the stick and iron rod used by the accused persons to cause hurt to PWs 1 and 2. He also identified MO3, the packet which contained the chilli powder which was sprinkled on PWs 1 and 2. He took PWs 1 and 2 in his autorickshaw to the hospital, where they were given necessary treatment. 11.1. PW5, Assistant Surgeon, District Hospital, Manjeri, deposed that on 28/09/2003 at 11:30 a.m., he had examined PWs 1 and 2 and had issued Exts.P3 and P2 wound certificates respectively. On examination, PW1 had ‘multiple linear contused abrasions of various sizes on back’. PW5 also examined PW2. On examination, he found the following injuries on PW2: “(1) bilateral conjunctival congestion (2) lacerated wound 2 x ½ x ½ cm left side of forehead (3) contusion 2 x 4 cm above left wrist 2025:KER:26576 CRL.A NO. 108 OF 2006 11 (4) abrasions over both hand dorsal aspect (5) multiple linear contused abrasions on back” The testimony of PWs 1 to 3 and 5 has not been discredited in any way though they were extensively cross-examined. Therefore, I find no reasons to disbelieve them. The evidence on record shows that accused nos.1 and 2 had wrongly restrained PWs 1 and 2 and had voluntarily caused hurt to them with MO1 and MO2 weapons. The medical evidence also supports the case. Therefore, I find no infirmity in the finding of the trial court calling for an interference by this Court. 12. Now coming to the sentence that has been imposed on the accused persons. As noticed earlier, accused nos.1 and 2 have been sentenced to undergo rigorous imprisonment for a period of one month and to a fine of 500/- each and in default of payment ₹ of fine to undergo simple imprisonment for a period of 7 days each for the offence punishable under Section 341 IPC and to undergo rigorous imprisonment for a period of two years and to a fine of 2025:KER:26576 CRL.A NO. 108 OF 2006 12 5,000/- each and in default of payment of fine to undergo simple ₹ imprisonment for a period of six months each for the offence punishable under Section 324 IPC. The incident took place in the year 2003. 22 years have elapsed since the incident. In the facts and circumstances of the case; the injuries sustained by PWs 1 and 2 and the fact that no criminal antecedents have been reported, I find that the interest of justice would be served by adequately compensating the injured/witnesses. Therefore, the impugned judgment is modified as follows: The conviction of accused nos.1 and 2 for the offences punishable under Sections 341 and 324 IPC is confirmed. They are sentenced to imprisonment for a day till the rising of the court. Accused nos.1 and 2 shall pay compensation of 5,000/- each to ₹ PW1 and 7,500/- each to PW2 under Section 357(3) Cr.P.C and in ₹ default of payment, they shall undergo simple imprisonment for a period of two months each. The appeal is allowed to the aforesaid extent. 2025:KER:26576 CRL.A NO. 108 OF 2006 13 Interlocutory applications, if any pending, shall stand closed. Sd/- C.S.SUDHA JUDGE NP