Murale v. State of Kerala (Criminal Appeals Nos. 1629/2006 and 1628/2006)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 CRL.A NO. 1629 OF 2006** **JUDGMENT IN SC 246/2005 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM CP 115/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **MAGISTRATE-I,ATTINGAL** ## **APPELLANT/ACCUSED:** MURALE, S/O SRINIVASAN, KODALIVILA VEEDU, MOVARKAL DESOM,, ALAMCODE VILLAGE. BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA THE PUBLIC PROSECUTOR, OFFICE OF THE, ADVOCATE GENERAL, HIGH COURT OF KERALA,, HIGH COURT BUILDINGS, ERNAKULAM (SUB INSPECTOR, OF POLICE, ATTINGAL POLICE STATION.) SMT.REKHA .S SR.P.P THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2023, ALONG WITH CRL.A.1628/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.Nos. 1629 & 1628/2006 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 CRL.A NO. 1628 OF 2006** **AGAINST THE JUDGMENT IN SC 619/2001 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM CP 115/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **MAGISTRATE-I,ATTINGAL** ## **APPELLANTS/ACCUSED NOS. 2 TO 5:** - 1 JAYACHANDRAN, S/O KUMARAN,KAYIKKARAVILA VEEDU, PUTTALA, KATTAPARAMBU, ALAMCODE VILLAGE. - 2 JAYAPRAKASH KUNJUMON, S/O. KUMARAN, KAYIKKARAVILA VEEDU, PATTALA, KATTAPARAMBU, ALAMCODE VILLAGE. - 3 BINU S/O. KUMARAN, KAYIKKARAVILA VEEDU, PATTALA, KATTAPARAMBU, ALAMCODE VILLAGE. - 4 LAIJU S/O. VILASINI, KAYIKKARAVILA VEEDU, PATTALA KATTAPARAMBU, ALAMCODE VILLAGE. BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, THE PUBLIC PROSECUTOR, OFFICE OF THE, ADVOCATE GENERAL, HIGH COURT OF KERALA,, HIGH COURT BUILDINGS, ERNAKULAM, (SUB INSPECTOR OF POLICE, ATTINGAL POLICE STATION) SMT. REKHA S. SR.PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2023, ALONG WITH CRL.A.1629/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.Nos. 1629 & 1628/2006 -:3:- ## **J U D G M E N T** Dated this the 25[th] day of January, 2023 Both these appeals are connected and I am disposing the same by common judgment. 2. A crime was registered by the Attingal Police Station as Crime No.344/99 against 7 accused persons, alleging offences punishable under Sections 143, 147, 148, 149, 450, 427, 323, 324 and 307 of the IPC. The allegation is that on 7.9.1999 at about 3.30 pm, the accused formed themselves into an unlawful assembly and in prosecution of the said assembly, trespassed into the house of PW1 armed with deadly weapons, broke open the front door and the accused No.3 cut with a sword on the left side of his scalp and the other accused beat at various parts of his body with iron rods. It is further alleged that when PW4 intervened, the accused beat her also. 3. After investigation, final report was filed against all the 7 accused before the Judicial First Class Magistrate Court-I, Attingal. The learned Magistrate after completing the statutory formalities, committed the case to the Sessions Court, Crl.A.Nos. 1629 & 1628/2006 -:4:- Thiruvananthapuram for trial and disposal. The Sessions Court made over the case to the Additional District and Sessions Court, Fast Track (ADHOC)-II, Thiruvananthapuram (for short the court below) and numbered the case as S.C.No.619/2001. The accused Nos. 2 to 7 alone appeared at the court below. After hearing them, charge was framed against them for the offences punishable under Sections 143, 147, 148, 149, 450, 427, 323, 324 and 307 of the IPC. The charge was read over and explained to them and they pleaded not guilty. The case against the accused No.1 was split up. However, he appeared later on and his case was numbered as S.C.No.246/2005. Charge was framed against him also under Sections 143, 147, 148, 149, 450, 427, 323, 324 and 307 of the IPC. The charge was read over and explained to him and he also pleaded not guilty. Both the cases were tried by the court below separately. 4. In S.C.No.619/2001, PW1 to PW8 were examined on the side of the prosecution and Exts. P1 to P7 were marked. MOI was identified. In S.C.No.246/2005, PW1 to PW9 were examined on the side of the prosecution and Exts. P1 to P7 were marked. The court below in S.C.No.619/2001 found that accused Nos. 2 to 5 are guilty for the offences punishable under Sections 143, Crl.A.Nos. 1629 & 1628/2006 -:5:- 148, 451, 427, 323, 324 read with Section 149 of the IPC and they were convicted for the said offences. They were sentenced to undergo rigorous imprisonment for 3 months each under Section 143 of the IPC, rigorous imprisonment for 1 ½ years each under Section 148 of the IPC, rigorous imprisonment for 1 year each and to pay a fine of ₹500/- each under Section 427 of the IPC, to undergo rigorous imprisonment for 1 ½ years each under Section 451 of the IPC, to undergo rigorous imprisonment for 3 months each under Section 323 of the IPC and to undergo rigorous imprisonment for 1 ½ years each and to pay of a fine of ₹500/- each under Section 324 of the IPC. The sentences were ordered to be run concurrently. The accused Nos. 6 and 7 were found not guilty and they were acquitted. In S.C.No.246/2005 the accused No.1 was found guilty for the offences punishable under Sections 143, 148, 451, 427, 323, 324 read with Section 149 of the IPC and he was convicted for the said offences. He was sentenced to undergo rigorous imprisonment for 3 months under Section 143 of the IPC, rigorous imprisonment for 1 ½ years under Section 148 of the IPC, rigorous imprisonment for 1 year and to pay a fine of ₹500/- under Section 427 of the IPC, to undergo rigorous imprisonment for 1 ½ years under Section 451 Crl.A.Nos. 1629 & 1628/2006 ## -:6:- of the IPC, to undergo rigorous imprisonment for 3 months under Section 323 of the IPC and to undergo rigorous imprisonment for 1 ½ years and to pay of a fine of ₹500/- under Section 324 of the IPC. The sentences were ordered to be run concurrently. Challenging the conviction and sentence in S.C.No.246/2005, the 1[st] accused preferred Crl.A.No.1629/2006 and challenging the conviction and sentence in S.C.No.619/2001, the accused Nos. 2 to 5 preferred Crl.A.No1628/2006. 5. I have heard Sri. V.S. Sudheer, the learned counsel for the appellants and Smt. Rekha S., the learned Senior Public Prosecutor. 6. The witnesses and exhibits are hereafter referred to as in Crl.A.No.1628/2006. The prosecution mainly relied on the evidence of PW1, PW4 and PW5 to prove the incident and fix the culpability on the accused. PW1 and PW4 are the injured and PW5 is the doctor who examined them and issued Exts. P2 and P3 wound certificates. PW2 and PW3 cited as occurrence witnesses. But, they did not support the prosecution case. It is settled that the evidence of the injured witnesses have to be given weightage. I went through the evidences of PW1 and PW4. Ext.P1 FIS was marked through PW1. He deposed in tune with Crl.A.Nos. 1629 & 1628/2006 -:7:- Ext.P1 FIS. Even though PW1 and PW4 were cross examined in length, nothing tangible could be extracted to disbelieve their testimony. The oral evidence of PW1 and PW4 gets corroboration from the medical evidence adduced by the prosecution through PW5 doctor and Exts. P2 and P3 wound certificates. On reappreciation of the evidence, I do not find any reason to interfere with any of the findings by the court below. I endorse the finding of the court below that the prosecution has succeeded in proving beyond reasonable doubt that the accused have committed the offences punishable under Sections 143, 148, 451, 427, 323, 324 read with Section 149 of the IPC. 7. The learned counsel for the appellants submitted that the incident was of the year 1999 and all of them are now age old persons suffering from various ailments. The counsel further submitted that they have not involved in any other criminal cases at all. He also pointed out that, even going through the prosecution case, there is nothing to show that the act of the accused was a pre-meditated one. In the said circumstances, the counsel prays that the substantive sentence may be reduced to imprisonment till rising of court. I see considerable force in the said submission. Crl.A.Nos. 1629 & 1628/2006 -:8:- 8. 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 under Section 357 of Cr.P.C by the court. The Apex Court has recommended that the power under Section 357 of Cr.P.C is to be exercised liberally so as to meet the ends of justice in the better way. 9. Even though Section 307 of the IPC was also alleged, the court below found that Section 307 of the IPC is not attracted on the ground that there was nothing on record to show that there was intention on the part of the accused to kill the victim. The injury was sustained by PW1 alone, that too, not serious in nature. As per Ext.P3 wound certificate, PW1 sustained a lacerated wound 10cmx2cmx2cm on the left side of the scalpanterio interior part. There is nothing on record to show that it is Crl.A.Nos. 1629 & 1628/2006 ## -:9:- a pre-meditated or calculated act on the part of the accused. In these circumstances, I am of the view that the appellants deserves leniency in the substantive sentence. 10. Considering the entire facts and circumstances of the case, I am of the view that the substantive sentence can be reduced to imprisonment till rising of court. At the same time, adequate compensation can be ordered to be paid to PW1 and PW4 who are the injured. The Apex Court in _**Hari Kishan & Another**_ (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. Considering all these aspects, I am of the view that a total compensation of ₹1,50,000/- would be just and reasonable. 11. In the light of the above findings, the conviction passed by the court below under Sections 143, 148, 451, 427, 323, 324 read with Section 149 of the IPC is confirmed. The sentence imposed by the court below is set aside. Instead, the accused are sentenced to undergo imprisonment till rising of court for the offences punishable under Sections 143, 148, 451, 427, 323, 324 read with Section 149 of the IPC. The accused are Crl.A.Nos. 1629 & 1628/2006 -:10:- also sentenced to pay a fine of ₹1,000/- each for the offence punishable under Section 451 of the IPC. They are further directed to pay a compensation of ₹30,000/- each to the injured (PW1), in default to suffer simple imprisonment for a period of two years each under Sections 143, 148, 427, 323, 324 read with Section 149 of the IPC. 12. The learned counsel for the appellants submits that two months' time may be granted to pay the compensation and to suffer the substantive sentence of imprisonment till rising of court. The appellants shall appear at the court below within a period of two months from the date of receipt of a copy of this judgment to deposit the compensation and to suffer the imprisonment till rising of court as ordered above. On such deposit, the court below shall release the same to PW1. The appeals are allowed in part as above. ## **Sd/-** ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp**