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2015 DIGILAW 1039 (SC)

Jose v. State of Kerala

2015-08-18

AMITAVA ROY, ARUN MISHRA, H.L.DATTU

body2015
ORDER : 1. This appeal is directed against the judgment and order passed by the High Court of Kerala at Ernakulam in Crl. R.P. No.1005 of 1999, dated 17.09.2007. By the impugned judgment and order, the High Court had confirmed the judgment of conviction but modified the sentence passed by the Court of Session, Thrissur, in Criminal Appeal No.188 of 1997, dated 30.10.1999. 2. The brief facts of the prosecution case are that on 14.09.1994 at about 12:00 midnight, Suresh (PW-2) while returning home from the theatre was attacked by some persons with deadly weapons such as choppers, iron pipes, iron rods, wooden sticks, etc. as a result of which PW-2 lost consciousness. Upon hearing the cries, PW-1, PW-3 and PW-7, the nearby residents, rushed to the scene of occurrence and witnessed the incident. They took PW-2 to Aswini Hospital, Thrissur in a lorry, where he remained for almost a month under treatment. 3. As PW-2 was unconscious and recuperating in the hospital, PW-1 furnished a statement before the Head Constable on 15.09.1994. The crime was registered under Sections 143, 147, 148, 341, 323, 324 and 326 of the Indian Penal Code, 1860 (for short, "the IPC"). After the completion of investigation, a charge-sheet was filed under Sections 143, 147, 148, 341, 323, 324, 326 and 307 of the IPC against 10 accused persons. 4. The case was committed for trial before the Court of Principal Assistant Sessions Judge, Thrissur. The prosecution relied upon the evidence of 15 witnesses (P.W.1 - P.W.15), 12 exhibits (Ex.P.1 - Ex.P.12) and M.O.1 - M.O.8. No defense evidence was adduced. 5. Upon a detailed examination of the prosecution evidence, the Trial Court passed an order of acquittal for Accused No.3, 7, 9 and 10 but convicted the appellants/Accused No.1, 2, 4, 5, 6 and 8 for the offences under Sections 143, 147, 148, 341, 323, 324, 326 and 307 read with Section 149 of the IPC. They were sentenced to undergo rigorous imprisonment for 4 years each and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo a further period of simple imprisonment for 3 months under Section 307 read with Section 149 of the IPC. They were also sentenced to undergo rigorous imprisonment for 2 years each and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo a further period of simple imprisonment for 3 months under Section 307 read with Section 149 of the IPC. They were also sentenced to undergo rigorous imprisonment for 2 years each and to pay a fine of Rs. 1,000/- and in default of payment to undergo a further period of simple imprisonment for 3 months under Section 326 read with Section 149 of the IPC. They were also sentenced to undergo rigorous imprisonment for 6 months each under Section 324 read with Section 149 of the IPC. 6. Being aggrieved by the judgment and order passed by the Trial Court the appellants/accused carried the matter in appeal before the Additional Sessions Judge, Thrissur. The Additional Sessions Judge by its order dated 30.10.1999 has upheld the order passed by the Trial Court. 7. Being aggrieved by the said order passed by the Additional Sessions Judge, the appellants/accused preferred Criminal Revision Petition before the High Court. 8. The High Court upon taking into consideration the fact that over 16 years had passed since the commencement of proceedings, and that all the convicted accused were brothers had modified the sentence imposed for the offence under Section 307 read with Section 149 of the IPC to rigorous imprisonment for 3 months each and to pay a fine of Rs. 50,000/- and in default to undergo rigorous imprisonment for 10 months. No separate sentence was imposed for the other offences. 9. Being aggrieved by the said judgment and order passed by the High Court, the appellants/Accused No. 1, 2, 4, 5, 6 and 8 are before us in this appeal. 10. We have heard the learned counsels appearing for the parties to the lis. 11. Shri Prasanth P., learned counsel appearing for the accused-appellants herein would assail the judgment and order passed by the High Court. He would submit that the evidence tendered by the prosecution witnesses are contradictory and that the evidence of P.W.6 should not be relied upon because he was an interested witness. He also submits that there were material discrepancies in the place of occurrence and in light of the fact that over 21 years have elapsed since the commencement of proceedings, the sentence imposed on the accused- appellants should be reduced. 12. He also submits that there were material discrepancies in the place of occurrence and in light of the fact that over 21 years have elapsed since the commencement of proceedings, the sentence imposed on the accused- appellants should be reduced. 12. Per contra, the learned counsel appearing for the respondent-State would support the judgment and order passed by the High Court. 13. After going through the judgment and order passed by the High Court and the material available on record and in view of the facts and circumstances of the case we see no infirmity in the impugned judgment and order passed by the High Court. 14. Accordingly, the Criminal Appeal is dismissed. 15. If the accused-appellants are on bail, we direct the jurisdictional police authorities to take them into custody forthwith to serve out the remaining period of the sentence awarded by the High Court. Ordered accordingly.