Abraham @ Babu and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 27[TH] DAY OF JULY 2022 / 5TH SRAVANA, 1944 CRL.REV.PET NO. 2986 OF 2004** **AGAINST THE JUDGMENT CRA 138/1998 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), FASTTRACK COURT-I, PATHANAMTHITTA CC 472/1995 OF JUDICIAL MAGISTRATE OF FIRST CLASS,THIRUVALLA REVISION PETITIONER/APPELLANT/ACCUSED:** - 1 ABRAHAM @BABU, ACHARICHIRAYIL, MEPRAL MURI, PERINGARA VILLAGE. - 2 SHAJI, ACHARICHIRAYIL MEPRAL MURI PERINGARA VILLAGE. - 3 SAJI, ALUMCHUVATTIL, MEPRA MURI, PERINGARA VILLAGE. - 4 JOSEPH PUNNAN @BABU, KANIYAMTHARA VADAKKEPPARAMPIL, MEPRAL MURI, PERINGARA VILLAGE. - 5 A.C.JOSEPH, KOCHAPPI ALUMCHUVATTIL HOUSE, MEPRAL MURI, PERINGARA VILLAGE. BY ADV SRI.V.PHILIP MATHEW ## **RESPONDENT/RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SRI G SUDHEER-PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P.No.2986/2004 ## -:2:- **==> picture [87 x 9] intentionally omitted <==** Dated this the 27[th ] day of July, 2022 This revision petition is directed against the judgment dated 22/09/2004 in Crl.Appeal.No. 138/1998 on the files of the Additional District and Sessions Judge (Adhoc) Fast Track Court I, Pathanamthitta (for short ‘the appellate court’) and the judgment dated 29/10/1998 in CC No. 472/1995 on the files of the Judicial First Class Magistrate Court, Thiruvalla (for short ‘the trial court’). 2. The revision petitioners are the accused nos. 1 to 4 and 6. They along with the accused No.5 faced trial for the offences punishable under Sections 143, 147, 149, 323, 324 and 447 of the IPC. The prosecution case in short is that, on 25/02/1995 at about 10.30 p.m, on account of previous enmity, the accused formed themselves into an unlawful assembly and in furtherance of the common object of the assembly, trespassed into the courtyard of PWs 1 and 2 and the 1[st] petitioner hit PW1 on the left side of head with a stone and the 2[nd] and 3[rd] petitioners beat him on his chest and back causing pain and Crl.R.P.No.2986/2004 -:3:- when his son PW3 intervened, accused Nos.4 to 6 beat him on his chest and back. 3. On the side of the prosecution, PWs.1 to 8 were examined and Exts.P1 to P6 were marked. No defence evidence was adduced. After a full-fledged trial, the trial court found the accused guilty of the offences punishable under Sections 143, 147, 149, 323, 324 and 447 of the IPC and they were convicted for the said offences. They were sentenced to undergo rigorous imprisonment for one month each for the offences punishable under Section 143, 147, 323 and 447 IPC and rigorous imprisonment for one year for the offence punishable under Section 324 r/w 149 IPC. The appellate court allowed the appeal preferred by the petitioners in part by confirming the conviction and setting aside the sentence passed by the trial court. The appellate court modified the sentence and ordered the petitioners to pay a fine of `1,000/- each in default to suffer simple imprisonment for one month for the offence punishable under Section 143 of the IPC, fine of `1,000/- each in default to suffer simple imprisonment for one month for the offence punishable under Section 147 of the IPC, fine of `500/- each in default to Crl.R.P.No.2986/2004 -:4:- suffer simple imprisonment for 15 days for the offence punishable under Section 447 of the IPC, fine of `1,000/- each in default to suffer simple imprisonment for one month for the offence punishable under Section 323 of the IPC and to undergo simple imprisonment for 3 months each and to pay a fine of `2,000/- each in default to suffer simple imprisonment for 7 months each for the offence punishable under Section 324 r/w 149 of the IPC. Aggrieved by the conviction and sentence passed by both the courts below, the petitioners preferred this revision petition. 4. I have heard Sri. V. Philip Mathews, the learned counsel for the revision petitioners and Sri. G. Sudheer, the learned Public Prosecutor. 5. I went through the evidence on record and the impugned judgment. On the side of the prosecution, the injured as well as the eyewitnesses supported the prosecution version. The prosecution has also adduced the medical evidence to support the oral evidence given by the injured and eyewitnesses. One of the eyewitnesses is an independent witness. The trial court appreciated the entire evidence on record and found that Crl.R.P.No.2986/2004 -:5:- the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. The appellate court on re appreciation of evidence confirmed the findings of the court below. It is settled that in the revision, reappreciation of evidence is not permissible. I find no illegality or impropriety in the conviction entered into by the court below. Accordingly, it is confirmed. 6. The next question is regarding the sentence. The learned counsel for the revision petitioners submitted that, during the pendency of this revision petition, the petitioner Nos.1, 4 and 5 died and the petitioner Nos. 2 and 3 are only alive at present. The learned Public Prosecutor submitted that, the defacto complainant also died. This court issued notice to the legal heirs of the defacto complainant and the eldest son of the defacto complainant personally appeared before me for and on behalf of the legal heirs of the defacto complainant. He submitted that the defacto complainant left behind five children including himself. He further submitted that, they have no objection in reducing the substantive sentence awarded to the petitioners 2 and 3 if adequate compensation is given to them. The counsel for the petitioners also pleaded that, in these circumstances, the Crl.R.P.No.2986/2004 -:6:- substantive sentence may be confined to imprisonment till rising of the court and instead, compensation be awarded to the legal heirs of the defacto complainant. I find some force in the said submissions. 7. Section 357 of Cr.P.C is an important provision empowering the court to award compensation to the victims of the crime while passing the judgment of conviction. In addition to conviction, the court may order the accused to pay reasonable amount by way of compensation to the victim who suffered by the action of the accused. It is a measure of responding appropriate claim to the crime as well as reconciling the victim with the offender. The Apex court in _**Hari Kishan & Another v. Sukhbir Singh & Others**_ [AIR 1988 SC 2127] highlighted the necessity of invoking the power u/s 357 of Cr.P.C by the court. The Apex Court has recommended that the power u/s 357 of Cr.P.C is to be exercised liberally so as to meet the ends of justice in the better way. 8. The crime is of the year 1995. Now, more than 26 years have been elapsed. That apart, the defacto complainant and three accused are no more. The legal heirs of the defacto Crl.R.P.No.2986/2004 -:7:- complainant have no objection in reducing the substantive sentence. Considering the entire facts and circumstances of the case, I am of the view that the substantive sentence of imprisonment imposed for the offence u/s 324 of Cr.P.C can be confined to imprisonment till rising of the court. At the same time, adequate compensation can be ordered to be paid to the legal heirs of the defacto complainant u/s 357 of Cr.P.C. The Apex Court in _**Hari Kishan**_ (supra) has observed that the quantum of compensation may be determined by taking into account the nature of the crime, the justness of claim by the victim and the ability of the accused to pay and the compensation must be reasonable. The learned counsel for the petitioners submitted that the petitioners 2 and 3 are ready to pay the compensation. Considering these aspects, I am of the view that compensation of `50,000/- to the legal heirs of the defacto complainant would be just and reasonable. 9. In the light of the above findings, the conviction and sentence passed by the Court below for the offences under Sections 143, 147, 149, 323 and 447 of IPC is confirmed. The conviction imposed by the court below for the offence u/s 324 is Crl.R.P.No.2986/2004 -:8:- also confirmed. But, sentence is set aside. Instead, the petitioners 2 and 3 are sentenced to undergo simple imprisonment till rising of the court. They are also directed to pay jointly a compensation of `50,000/- to the legal heirs of the defacto complainant (`10,000/- each to the legal heirs viz., Annamma K.Jacob, Thomas K.Joseph, Mercy Joseph, Jesy Joseph and Ponnan K.Joseph), in default to suffer simple imprisonment for a period of three months each. The learned counsel for the petitioners submitted that the petitioners may be granted two months' time to pay the compensation. The said time is granted. The petitioners shall appear at the trial court within a period of two months from today and deposit `50,000/- (Rupees Fifty Thousand only) as compensation. On such deposit, the trial court shall release the same to the legal heirs of the defacto complainant as indicated above. The criminal revision petition is allowed in part as above. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**