Gopi and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 11TH DAY OF DECEMBER 2020/20TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.3168 OF 2003** **AGAINST THE JUDGMENT IN CRL.APPEAL No.470/2000 DATED 28-02-2003 OF III ADDITIONAL SESSIONS COURT, THRISSUR** **SC 77/1999 DATED 26-09-2000 OF PRINCIPAL ASSISTANT SESSIONS COURT, IRINJALAKUDA** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** **1 GOPI, S/O.CHANDRAN, THAIYAVALLIYIL, EMMAD DESOM,KOOLEMUTTAM POST, VIA MATHILAKAM, TRICHUR DISTRICT. 2 JOHNSON, S/O.PULIKKAL OUSEPH, EMMAD DESOM,KOOLEMUTTAM POST, VIA MATHILAKAM, TRICHUR DISTRICT. 3 SUDARSANAN, UNNICHEKKAN, PANIKKATTIL KALIMUTTOM, EMMAD DESOM, VIA MATHILAKAM, TRICHUR DISTRICT. 4 PRAKASAN, S/O.NARAYANAN, PULIPARAMBIL, EMMAD DESOM,KOOLEMUTTAM P.O., VIA MATHILAKAM, TRICHUR DISTRICT. 5 BIJU, S/O.SANKURU, KANIYATH HOUSE, EMMAD DESOM,KOOLEMUTTAM POST, VIA MATHILAKAM, TRICHUR DISTRICT. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME No.271/1995 OF THE MATHILAKAM POLICE STATION). BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-12-2020, THE COURT ON 11-12-2020 PASSED THE FOLLOWING:** Crl.R.P.No.3168 of 2003 ..2.. ## **ORDER** The revision petitioners 1 to 5 are the accused 1 to 5 in S.C.No.77/1999 on the file of the Principal Assistant Sessions Court, Irinjalakuda and the appellants in Crl.Appeal No.470/2000 on the file of the third Additional Sessions Court, Thrissur. The offences alleged against the accused are under Sections 143, 147, 148, 324 and 307 read with Section 149 of the Indian Penal Code (hereinafter referred to as 'the IPC'). 2. The prosecution case in brief is that on 27.8.1995 at 11.30 am., at the courtyard of the house of one Madhavan while PWs.1, 2 and 13, who were sympathizers of Communist Party of India (Marxist), were discussing together in connection with the ensuing Panchayat election in which PW13 was a candidate, due to political enmity, the accused 1 to 5 who were sympathizers of the Bharathiya Janatha Party formed Crl.R.P.No.3168 of 2003 **==> picture [22 x 8] intentionally omitted <==** themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object caused a surprise attack on them and made an attempt to murder PW13. He had sustained severe injuries and thereby committed the offences punishable under Sections 143, 147, 148, 324 and 307 read with Section 149 of the IPC. 3. During the trial of the case, PWs.1 to 16 were examined and marked Exts.P1 to P13 and MOs.1 to 6 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. When the accused were called upon to enter on their defence, no evidence was adduced. However, Ext.D1 contradiction was marked. Crl.R.P.No.3168 of 2003 **==> picture [22 x 8] intentionally omitted <==** 4. The trial court framed charge against the accused for the offences punishable under Sections 143, 147, 148, 324 and 307 read with Section 149 of the IPC. The charge was read over to which the accused pleaded not guilty. On the appreciation of the evidence, the trial court found the accused guilty of the offence punishable under Section 326 read with Section 149 of the IPC as per the first part of the judgment dated 26.9.2000. Accordingly, by its order on the same day, the accused were sentenced to undergo rigorous imprisonment for a period of five years each and also to pay a fine of Rs.5,000/- each, in default of payment of fine to undergo simple imprisonment for a further period of six months each. In paragraph 18 of the judgment, the learned trial Judge held that the offence under Section 307 of the IPC is not attracted against the accused and accordingly, the accused was convicted for a lesser offence under Section Crl.R.P.No.3168 of 2003 **==> picture [22 x 8] intentionally omitted <==** 326 read with Section 149 of the IPC. Going by the judgment, it is further clear that, although the learned Principal Assistant Sessions Judge framed charge against the accused for the offences punishable under Sections 143, 147, 148, 324 and 307 read with Section 149 of the IPC, no order was passed by the trial court convicting or acquitting the accused for the offences punishable under Sections 143, 147, 148, 324 and 307 of the IPC. 5. The accused 1 to 5 preferred Crl.Appeal No.470/2000 before the third Additional Sessions Court, Thrissur. The learned third Additional Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the accused 1 to 5 have preferred this revision. 6. Heard Sri.S.Rajeev, the learned counsel for the revision petitioners and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. Crl.R.P.No.3168 of 2003 **==> picture [22 x 8] intentionally omitted <==** 7. The occurrence took place at the courtyard of one Madhavan. Immediately after the occurrence, PW13 the injured was taken to the Modern Hospital at Kodungallur for initial treatment. Since his condition was critical, he was referred to Medical Trust Hospital, Ernakulam for better management. When he was admitted to the Medical Trust Hospital, he was conscious and narrated the injury to the Doctor. The matter was reported to the Mathilakam Police both from Modern Hospital and also from the Medical Trust Hospital. During the course of investigation, the statement of PW13 was recorded by the learned Judicial First Class Magistrate under Section 164 of the Cr.P.C under expectation of his death. Mathilakam Police registered Crime No.271/95 and after investigation the police filed final report against the accused 1 to 5. Crl.R.P.No.3168 of 2003 ..7.. 8. The learned counsel for the revision petitioners submitted the following contentions:- - i) The prosecution deliberately suppressed the evidence of the Doctor and the records of medical examination in the Modern Hospital, Kodungallur where the injured was initially taken for treatment. - ii) PW14 the Doctor, who examined PW13 at the Medical Trust Hospital, Ernakulam, stated before the trial court that PW13 was conscious and well-oriented at the time of examination. - iii) The trial court neither convicted nor acquitted the accused for the offences punishable under Sections 143, 147, 148, 324 and 307 of the IPC. - iv) The trial court convicted the accused for the offence under Section 326 read with Section 149 of the IPC without proving an unlawful Crl.R.P.No.3168 of 2003 ..8.. assembly as defined under Section 141 of the IPC. - v) No evidence was adduced by the prosecution to prove that all the accused were armed with deadly weapons for the purpose of rioting on the date of occurrence. - vi) PWs.1 and 2 are interested, inimical and partisan witnesses. 9. Per contra, the learned Senior Public Prosecutor submitted that the prosecution adduced reliable evidence to prove that the accused 1 to 5 formed themselves into an unlawful assembly armed with deadly weapons for the purpose of rioting and in prosecution of their common object voluntarily caused grievous hurt to PW13 due to political enmity. It was further submitted that both the trial court and the appellate court concurrently held that the accused 1 to 5 were guilty of the offence punishable Crl.R.P.No.3168 of 2003 **==> picture [22 x 8] intentionally omitted <==** under Section 326 read with Section 149 of the IPC. The learned Senior Public Prosecutor further submitted that in the absence of manifest error of law or procedural defect, it is not open for the revisional court to interfere with the concurrent findings of conviction and sentence. 10. The accused 1 to 5 are the followers of the Bharathiya Janatha Party and PW13 is the follower of the Communist Party of India (Marxist). Both the above parties have long term enmity due to political and empirical reasons. PW13 was a candidate for the Panchayat election during the year 1995. During the election campaign, on 27.8.95 at about 11.30 am., PW13 was having discussion regarding his candidature and other political matters with PW2. After having a brief talk, both PW2 and PW13 went to the house of CW4 Madhavan (CW4 died pending proceedings) situated at the end of the by-line. While they were discussing together at the Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** residence of Madhavan, the accused 1 to 5 suddenly came there and as directed by the 4[th] accused, the 1[st] accused hacked on the head of PW13 with MO1 hatchet. On sustaining the injury, there was profuse bleeding from his head and PW13 made an attempt to run towards the southern direction. However, he fell on the ground and while so, the 2[nd] accused inflicted cut injuries on his left hand and back with MO3 sword. The 3[rd] accused inflicted blows on several parts of the body with MO4 wooden roller and the 5[th] accused hacked on the right leg and hand with MO2 sword. When PW13 cried aloud, the accused 1 to 5 ran away from the place carrying the weapons in their hand. Seeing the condition of PW13, PW1 brought a trucker jeep and took PW13 to the Modern Hospital, Kodungallur. Since his condition was critical, after giving first aid, he was taken to the Medical Trust Hospital, Ernakulam in an ambulance van. PW1, one of the eye Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** witnesses in this case returned from the Hospital and lodged Ext.P1 FIS to the police. When PW1 was examined before the trial court, he identified the accused and MOs.1 to 4 before court. 11. PWs.2 and 13 supported the version of PW1. PW13 stated that he was unconscious when he was admitted at the Medical Trust Hospital, Ernakulam. He further stated that he underwent treatment at the Medical Trust Hospital as an inpatient for one month and had continued his treatment as an out patient for one more year. He further stated that as a result of the occurrence he had lost his teeth and his right palm was totally impaired. PW13 identified MOs.1 to 4 before court. 12. PW14 the Medical Officer attached to Medical Trust Hospital examined PW13 and issued Ext.P11 wound certificate noting the following injuries:- ## _“A. Head_ _(1).5 x 0.5 cm x 1 cm. incised wound over_ Crl.R.P.No.3168 of 2003 ..12.. _left front to parietal region-starting close to midline and extending coronally with sign of compound depressed fracture left parietal bone. On craniotomy there was dural and brain laceration and haematoma underneath the fracture._ _(2) 3x0.5x1 cm. bone deep horizontal incised wound over the centre of forehead._ _(3) 0.5 cm long linear incised wound over right upper lip._ _(4) 0.5 cm long linear incised wound over right upper lip._ _B. Over anterior chest wall_ _(5) 7x 0.25 cm. shallow oblique lacerated wound below the right nipple._ _(6) Multiple minute incised wound over the anterior chest wall._ _(7) Small contused abrasion over left upper chest._ _C. Posterior chest wall_ _(8) 26x0.5 cm oblique contused abrasion over the left side of back of chest-extending from the level of T4 to T10 vertebra with 1x1 cm deep abrasion at the upper end._ _(9) 8x1 cm shallow lacerated wound with 2x1_ Crl.R.P.No.3168 of 2003 ..13.. _cm. deep abrasion at the upper end close to medial border of left scapula._ _(10) 9x1x0.5 cm. incised wound-horizontal-over the mid 1/3 left scapula._ _(11) 25x0.25x0.5 cm incised wound extending from lower angle of left scapula crossing the midline at the level of T7 vertebra._ _(12) Horizontal incised wound 16x0.25x0.25 cm.-4 cm below wound No.11 over the left lower chest._ _(13) 7x1 cm contusion with abrasion obliquely placed over the left lower chest close to the costal margin simulating beaten mark._ _(14) 16x1.2 cm. oblique contusion across the midline extending from the left lumbar region to the right sacro-iliac joint simulating beaten mark. (15) 2x1.5 cm contused abrasion over the right buttocks._ _(16) 1x0.25 cm shallow lacerated wound to the left of 2[nd] lumbar vertebra._ _(17) 15x1.5 cm contusion with abrasion obliquely placed over the right infrascapular region simulating beaten mark._ _(18) 18X0.5 cm shallow laceration, obliquely placed over the right infra-scapular region which_ Crl.R.P.No.3168 of 2003 ..14.. _is contused and swollen as a whole._ ## _D. Right upper limb_ _(19) 10x1 cm contused abrasion over right arm._ _(20) 11x1 cm. contusion over right arm._ - _(21) 3x1x2 cm. gaping incised wound over the right elbow._ _(22) Longitudinal incised wound 7x1cm over the posterior aspect of right arm._ _(23) 3x2x3 cm. incised wound horizontal over left elbow anterior aspect._ ## _Right Lower Limb_ _(24) 2.5x1 cm abrasion over right upper thigh._ _(25) 10x1 cm contusion._ _(26) 2x1.5 cm abrasion below right knee._ _(27) Four shallow lacerated wounds._ _(28) 4x2x3 cm incised wound over lacerated aspect of upper 1/3 of right leg with sign of compound fracture._ ## _Left Lower Limb_ _(29) Puncture wound 1.5x 0.5x1 cm. Incised wound over lower 3[rd] of medial aspect of left leg._ _(30) 1x0.5x0.5 cm incised wound-looking like a puncture wound-below wound No.29._ _(31) Grossly comminuted fracture.”_ Crl.R.P.No.3168 of 2003 ..15.. 13. PW14 stated that the patient was conscious and oriented at the time of admission. It is disclosed from Ext.P11 that PW13 had sustained 31 injuries and his condition was critical. Since his condition was critical, his dying declaration was recorded by the jurisdictional Magistrate. No doubt, going by Ext.P11 wound certificate it is clear that PW13 sustained grievous injuries. 14. PWs.3 to 7 are cited to prove the occurrence. PW3 is the daughter of CW4 late Madhavan. They turned hostile to the prosecution denying the occurrence. PW10 is one of the witnesses in Ext.P8 mahazar. PW16 is the Circle Inspector of Police who conducted the investigation. 15. PW14 was the duty Doctor at Medical Trust Hospital, Ernakulam on the date of occurrence. Ext.P11 wound certificate was prepared by him. In column No.6 in Ext.P11 it is stated that accused Nos.1 to 5 and four others assaulted PW13; whereas FIS lodged by PW1 Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** would show that the accused 1 to 5 were solely responsible for committing the occurrence. 16. The trial court mainly considered the evidence of PWs.1, 2, 13 and 14 and entered a finding that the accused 1 to 5 caused grievous hurt to PW13. It is a fact that PW13 underwent treatment in the hospital for more than 30 days. He had sustained very serious injuries including fracture. PWs.1, 2 and 13 adduced evidence to show that the accused assaulted PW13 with MOs.1 to 4 on the date of occurrence. PW16 the Investigating Officer recovered MOs.1 to 4 pursuant to confession made by the 1[st] accused while in custody. PW11 was a signatory in Ext.P9 mahazar prepared PW16. Recovery was effected by PW16 in accordance with Section 27 of the Evidence Act. 17. For an unlawful assembly, the minimum number required is five. It is necessary, therefore, for the prosecution to lead evidence pointing to the conclusion Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** that all the accused had done or committed some overt acts in prosecution of a common object of the unlawful assembly. It is true that active participation in active violence is not necessary. The persons, who by words or signs or otherwise engaged in violence, are equally members of the unlawful assembly. So, the number of those, who committed the occurrence, also should be reckoned to decide if the number is five or more and there should be a definite finding that the number of persons was five or more than five. The formation of an unlawful assembly is not to be inferred merely because five or more persons met at a particular place and shortly afterwards, an offence is committed. 18. Determination of common object of an unlawful assembly is essentially a question of fact keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** the scene and host of similar or connected facts and circumstances. 19. The pivotal question of applicability of Section 149 of the IPC has its foundation on constructive liability which is the _sine qua non_ for its application. It contains only two ingredients:- - i) Offence committed by any member of any unlawful assembly consisting five or more members and, - ii) Such offence must be committed in prosecution of the common object of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. 20. In the case on hand, the trial court has not convicted the accused for the offences punishable under Sections 143, 147, 148, 324 and 307 of the IPC. Without the aid of Section 143 of the IPC, the accused was Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** convicted for the offence under Section 326 read with Section 149 of the IPC. No separate sentence was awarded for the offence under Section 149 of the IPC. In fact, the trial court has not considered the necessary ingredients to constitute an unlawful assembly under Section 141 of the IPC. Unless the ingredients are proved in evidence, conviction against accused 1 to 5 for the offence along with Section 149 of the IPC is apparently unsustainable. The occurrence in this case was on 27.8.95. No purpose will be served in remanding the matter to the trial court for consideration of awarding appropriate sentence after the lapse of 25 years. 21. The recovery was effected based on the confession of the 1[st] accused. PW13 adduced evidence to show that the 1[st] accused assaulted PW13 on his head with MO1 hatchet and the 2[nd] accused assaulted PW13 on the left hand and back with MO3 sword. On going through Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** the wound certificate and other relevant circumstances, it is clear that the accused 1 and 2 inflicted grievous injuries on PW13. Regarding the others, though specific overt acts are alleged, no convincing evidence is forthcoming to show that they were members of the unlawful assembly as alleged by the prosecution. In fact, the trial court did not enter a finding that the accused formed into an unlawful assembly for the purpose of rioting as alleged by the prosecution. There was no case for PWs.1, 2 and 13 that accused No.4 used any dangerous weapon as against PW13. The allegation against accused No.4 was that he uttered loudly to murder PW13. However, the trial court acquitted him of the offence under Section 307 of the IPC. PWs.3 to 7 are the occurrence witnesses. In front of the house of PWs.3 to 5 the alleged incident took place. PWs.6 and 7 are neighbours of PW3. They had not supported the prosecution case. PW1 stated in cross-examination that Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** accused No.5 had used weapon against him. However, Ext.P1 FIS does not contain such a statement. On a perusal of the entire evidence, the necessary ingredients to attract the offence under Section 143 of the IPC are conspicuously absent in this case. On going through the evidence of PWs.1, 2 and 13, the specific overt acts alleged to have been committed as against PW13 do not tally with the medical evidence. When examined before court PW1 has not alleged any specific overt acts as against the 4[th] accused. As against the 3[rd] accused PW13 stated that the 3[rd] accused had beat all over his body with wooden roller. At the same time, PW13 stated that immediately after he sustained head injury at the instance of the 1[st] accused, he fell on the ground. In this connection, it is pertinent to note that MO1 is a hatchet Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** alleged to have been used by the 1[st] accused for assaulting PW13. The specific case is that the 2[nd] and 5[th] accused used MO3 and MO2 sword for assaulting PW13. His evidence would indicate that PW13 had fallen on the ground immediately after sustaining head injury from the 1[st] accused. The corresponding injuries are not proved in evidence. Further, the necessary ingredients to attract Section 143 of the IPC are not brought out in evidence to convict the accused with the aid of Section 149 of the IPC. The trial court entered a finding that the intention of the accused was to inflict grievous injuries on PW13 and they had no intention to murder him. Accordingly, the accused 1 to 5 were convicted for a lesser offence under Section 326 of the IPC with the aid of Section 149 of the IPC. In the absence of evidence to prove an unlawful assembly as stated earlier, the conviction against the accused 1 to 5 for the offence under Section 149 of the IPC is clearly Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** unsustainable. 22. In this case, admittedly, all the persons were not armed with deadly weapons. For the offence under Section 149 of the IPC, overt act by every person is not to be proved. The only thing necessary to be decided is whether the accused shared the common object of the assembly. In this case, there is no evidence to show that all the accused were armed with deadly weapons. In **Suresh v. State of Kerala** [2006 (1) KLT 78], a Division Bench of this Court held that the conviction of all the accused for the offence under Section 148 of the IPC without a finding that those who were so convicted were armed with deadly weapons is unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 of the IPC with the aid of Section 149 of the IPC for the mere reason that they were members of an unlawful assembly. There is a distinction between the Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** offences under Sections 146 and 148 of the IPC. The offence under Section 146 of the IPC is punishable under Section 147 of the IPC. To constitute the offence of rioting as has been defined under Section 146 of the IPC, the members of the unlawful assembly need not carry weapons; whereas a person charged with an offence under Section 148 of the IPC must be armed with deadly weapon. In view of the above, the offence under Section 148 of the IPC is not attracted in this case. 23. The next question is whether any of the accused would be personally held liable for the acts committed by them with the aid of Section 34 of the IPC. It is settled principle of law that even if the accused had not been charged with the aid of Section 34 of the IPC and instead charged with the aid of Section 149 of the IPC, they can be convicted with the aid of Section 34 of the IPC if evidence was adduced to prove that there was common Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** intention to commit the crime. On going through Ext.P11 wound certificate, it is _prima facie_ evident that PW13 sustained grievous injuries as defined under Section 320 of the IPC. PWs.1, 2 and 13 very clearly stated that the accused 1 and 2 inflicted grievous injuries on PW13. PW13 alleged specific overt acts against the accused 1 and 2 in his evidence before the trial court. Further the weapons were recovered on the basis of the confession statement of the 1[st] accused. So far as the evidence let in is concerned, the presence of the accused 1 and 2 are proved beyond doubt. PWs.1, 2 and 13 identified the accused 1 and 2 before court. MOs.1 and 3 were identified with reference to corresponding injuries sustained by PW13. Hence this is a fit case for convicting the accused 1 and 2 with the aid of Section 34 of the IPC. Section 34 of the IPC is not a penal provision; whereas Section 149 of the IPC is penal in nature. Both the trial court and the Crl.R.P.No.3168 of 2003 ..26.. appellate court did not consider the purport of the Section 149 of the IPC in accordance with law. Hence, the accused 1 to 5 were wrongly convicted with the aid of Section 149 of the IPC. As against accused Nos.3 to 5, the prosecution failed to prove the offence against them beyond reasonable doubt. They are entitled to get benefit of doubt. 24. Coming to the question of sentence, the learned counsel for the revision petitioners submitted that the dispute arose out of political enmity. According to the learned counsel for the revision petitioners, although injuries sustained by PW13 were serious in nature, the occurrence in this case took place in a sudden quarrel and in the heat of passion, both parties attacked each other and PW13 sustained injuries. Admittedly, there has been longstanding enmity between the two political factions. The accused had no previous personal enmity towards PW13. The accused 1 and 2 have been conducting the Crl.R.P.No.3168 of 2003 ..27.. case for the last 25 years. They have undergone the agony of criminal proceedings. Considering the above circumstances, indulgence from this Court is sought for in the matter of sentence. 25. The trial court awarded an amount of Rs.10,000/- as compensation to PW13 under Section 357(1) of Cr.P.C. The compensation amount was fixed way back on 26.9.2000. The amount of compensation is to be determined by the courts depending upon the facts and circumstances of each case, nature of the offence and the capacity of the accused to pay the amount. 26. During the trial, the accused were found not guilty of the offence under Section 307 of the IPC and accordingly they were acquitted thereunder. The trial court found that the accused committed an offence under Section 326 of the IPC. Thus, the accused were convicted and sentenced to undergo substantive imprisonment for Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** five years and also to pay a fine of Rs.5,000/- each. The offence under Section 326 of the IPC is triable by a Judicial First Class Magistrate. Being an offence triable by a Judicial First Class Magistrate, it is just and proper to reduce the sentence of imprisonment appropriately though the injuries sustained by PW13 were serious in nature. Considering the facts and circumstances of the present case, sentence of imprisonment for 5 years imposed on the accused 1 and 2 is reduced to one year and also with a fine of Rs.15,000/- each so as to compensate PW13 in modification of the compensation awarded by the trial court. In case the fine amount is not paid or deposited, accused Nos.1 and 2 shall undergo simple imprisonment for three months each. 27. In modification of the conviction and sentence imposed by the trial court as well as the appellate court, the accused 1 and 2 are convicted and sentenced under Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** Section 326 read with Section 34 of the IPC for a period of one year each and also to pay a fine of Rs.15,000/- each and in default of payment of fine to undergo simple imprisonment for a period of three months more. The fine amount if paid or deposited by accused Nos.1 and 2 before the trial court, the same shall be released to PW13 in accordance with law. The accused 1 and 2 are found not guilty of the offence punishable under Section 149 of the IPC and accordingly they are acquitted thereunder. The accused 3 to 5 are found not guilty of the offence punishable under Section 326 read with Section 149 of the IPC and accordingly they are acquitted thereunder. Cancelling the bail bonds of the accused 3 to 5, this Court directs that the accused 3 to 5 be set at liberty. If any fine amount is deposited by the accused 3 to 5, during the pendency of the proceedings, pursuant to an interim order passed by this Court, the same shall be released to the Crl.R.P.No.3168 of 2003 **==> picture [28 x 8] intentionally omitted <==** revision petitioners 3 to 5/accused Nos.3 to 5 in accordance with law. 28. The accused 1 and 2 are directed to appear before the trial court on **07.01.2021** to receive the sentence and in case of failure the trial court shall take appropriate steps to execute the sentence in accordance with law. The criminal revision petition is allowed in part accordingly. Sd/- **N.ANIL KUMAR, JUDGE** skj