Baiju and others v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 CRL.REV.PET NO. 3064 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 16.05.2006 IN CRL A NO.303/2005 ADDITIONAL DISTRCT AND SESSIONS COURT (ADHOC-II), THODUPUZHA IN CC NO.509/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADIMALI ``` ## **`REVISION PETITIONERS:`** ``` 1BAIJU, S/O RAGHAVAN, KALLICKAL HOUSE, KAMBODINJAL KARA, KONNATHADI VILLAGE 2SUNIL, S/O.THANKAPPAN, KARUKAPPALLIL HOUSE, DO-DO 3RAJESH, S/O.RAJAPPAN, CHIRACKAL HOUSE, DO-DO BY ADVS SRI.V.K.SUNIL SMT.SEENA ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV. SRI.N.R.SANGEETHARAJ, PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.R.P.No.3064 of 2006 2 ## **K.BABU, J** . -------------------------------------- ## Crl.R.P.No.3064 of 2006 --------------------------------------- ## Dated this the 22[nd] day of March, 2023 ## **O R D E R** The challenge is this Criminal Revision Petition is to the judgment dated 19.10.2005 in C.C.No.509/2002 passed by the Judicial Magistrate of First Class, Adimaly which was confirmed by the Additional District and Sessions Court (Adhoc-II), Thodupuzha, in Crl.A.No.303/2005. 2. The prosecution case is that on 25.06.2002 at 6.00 p.m., due to previous enmity towards CW1, accused No.1, with an intention to cause grievous hurt to CW1, beat with a stick upon his mouth causing fall of one teeth from the upper jaw. Accused No.2 wrongfully restrained CW1 by holding him around. Accused No.3 beat CW1 on his back and face with his hand intermittently. Accused No.1 with a stick beat CW1 upon his left thigh causing hurt. 3. The prosecution examined PWs 1 to 9 and proved Exts. P1 to P6 and MO 1. 4. PW2 is the defacto complainant. He supported the prosecution case. PW2 deposed that while he was returning home after purchasing provisions, at the place of occurrence, accused No.1 came across with a stick and accused No.3 came Crl.R.P.No.3064 of 2006 3 from behind and held him around. Accused No.2 also came from behind. Accused No.1 hit him with a stick on his head and lip. He lost one tooth on the upper jaw. When he fell down accused Nos. 2 and 3 beat him with hand. 5. Evidence of PW2 is corroborated by Ext.P1 FIS. PWs 1, 3 and 9, examined by the prosecution were the other occurrence witnesses. PW1 did not support the prosecution. PW3 is the wife of PW2 and PW9 is his son. They also supported the oral evidence given by PW2. PW6 is the Doctor who examined PW2. Ext.P4 Wound Certificate has been proved through PW6. The injuries noted in Ext.P4 corresponds to the injuries stated to have been sustained by PW2. The Trial Court acquitted the accused for the offences under Section 326 and 324 r/w Section 34 of IPC but convicted for the offences punishable under Sections 323 and 341 IPC. 6. The learned counsel for the petitioners contended that the oral evidence of PW2 is not reliable. It is contended that PWs 3 and 9, who are interested witnesses, are not credible witnesses. 7. The learned Public Prosecutor, _per contra,_ contended that there is reliable evidence in support of the prosecution case. The oral evidence of PW2, the injured, gets some Crl.R.P.No.3064 of 2006 4 assurance from Ext.P1 FIS and from the evidence of the other occurrence witnesses. The learned Public Prosecutor contended that the oral evidence of PWs 3 and 9 gives further assurance to the case of the prosecution. 8. The jurisdiction of the Court under Section 397 Cr.P.C. can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the Section does not specifically use the expression ‘prevent abuse of process of any court or otherwise to secure the ends of justice’, the jurisdiction under Section 397 Cr.P.C. is a very limited one. The legality, proprietary or correctness of an order passed by a Court is the very foundation of exercise of jurisdiction under Section 397. But, ultimately, it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 Cr.P.C. is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Crl.R.P.No.3064 of 2006 5 Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused. [ **Vide : Amit Kapoor vs Ramesh Chander (2012) 9 SCC 460** ]. 9. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. {Vide: **Sanjaysinh Ramrao Chavan v.** Crl.R.P.No.3064 of 2006 6 **Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)]** } 10. I have carefully analysed the materials placed before the Court. I find no reason to interfere with the conviction concurrently entered by the Courts below. 11. The learned counsel for the revision petitioners prayed for interfering with the sentence imposed. The revision petitioners have been sentenced to undergo simple imprisonment for three months each and to pay fine of Rs.1,000/- each under Section 323 of IPC and simple imprisonment for 15 days under Section 341 of IPC. 12. In **Gurmukh Singh v. State of Haryana [2009 (15) SCC 635]** , the Apex Court narrated the factors to be considered before awarding appropriate sentence to the accused, which reads thus:- > “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: a) Motive or previous enmity; b) Whether the incident had taken place on the spur of the moment; c) The intention/knowledge of the accused while Crl.R.P.No.3064 of 2006 7 inflicting the blow or injury; d) Whether the death ensued instantaneously or the victim died after several days; e) The gravity, dimension and nature of injury; f) The age and general health condition of the accused; g) Whether the injury was caused without premeditation in a sudden fight; h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; i) The criminal background and adverse history of the accused; j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; k) Number of other criminal cases pending against the accused; l) Incident occurred within the family members or close relations; m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused. “ 13. In the instant case, the alleged incident happened in the year 2002. The revision petitioners have no criminal antecedents. The injuries were caused without any premeditation. The incident, infact, had taken place on a spur of a moment. Taking into account all these circumstances, this Crl.R.P.No.3064 of 2006 8 Court is of the view that the sentence imposed on the revision petitioners requires interference. 14. In the result, the revision petition is partly allowed. The judgment convicting the accused under Sections 323 and 341 is confirmed. The sentence imposed on the accused is modified as follows: The accused shall pay a fine amount of Rs.1,000/- (Rupees One Thousand only) each. If the fine amount is realised it shall be given to the victim as provided under Section 357 of Cr.P.C. Sd/- **K.BABU JUDGE** VPK