JUDGMENT (Prayer: Criminal Revision Case has been filed under Section 397 and 401 of Cr.P.C., praying to call for the records from the learned 2nd Additional District and Sessions Judge, Chidambaram in connection with judgment made in C.A.No.44 of 2015 dated 29.01.2016 thereby confirming the judgment passed by the learned Judicial Magistrate No.2, Chidambaram made in C.C.No.191 of 2010, dated 12.06.2015 and set aside the same. Criminal Revision Case has been filed under Section 397 and 401 of Cr.P.C., praying to set aside the order passed in C.A.No.45 of 2015, dated 29.10.2015 on the file of the III Additional District and Sessions Judge, Cuddalore confirming the judgment and order passed by the trial Court Judicial Magistrate No.II, Chidambaram in C.C.No.191 of 2010.) Common Order: 1. These Criminal Revision Cases are filed by the accused persons, who were found guilty and sentenced by the trial Court and the same confirmed by the lower appellate Court. 2. Particulars of the conviction and sentence for the respective offences is listed as below:- No. of Accused Conviction Sentence A1 For the offences under Sections 324, 448 of IPC To undergo Rigorous Imprisonment for six months A2 For the offences under Sections 147, 323, 448 of IPC To undergo Three months Rigorous Imprisonment A3 For the offences under Sections 324, 448 of IPC To undergo Rigorous Imprisonment for six months A4 For the offences under Sections 147, 323 of IPC For the offence under Section 448 of IPC To undergo Three months Rigorous Imprisonment. To undergo Rigorous Imprisonment for Six months A5 For the offence under Section 147 of IPC For the offence under Section 323 IPC (i)To undergo 3 months Rigorous Imprisonment (ii)To undergo 3 months Rigorous Imprisonment The period of sentence ordered to run consequetively. 3. Aggrieved by the concurent finding, Crl.R.C.No.266 of 2016 is filed by the accused 1 to 4 and Crl.R.C.No.395 of 2016 is filed by the 5th accused. 4. The case of the prosecution is that on 23.10.2010 at about 18.00 hours, the Head Constable Ramadass, Chidambaram Nagar Police Station received intimation from Chidambaram Government Hospital about a Medico-legal case and on receipt of the intimation, he went to the Hospital and recorded the statement of Natarajan (PW-1). Based on the complaint, he registered FIR in Crime No. 932 of 2010. 5. Based on the complaint, he registered FIR in Crime No. 932 of 2010. 5. As per the complaint, the defacto complainant Natarajan running a furniture shop by name and style “King Furnitures”. 17 years ago his sister Punitha married Kannan, the 3rd accused. Due to family dispute, Punitha and Kannan are separated and living separately for five years. On the date of the incident at about 11.15 a.m., Kannan(A-3) along with his three brothers (A1, A2 and A4) and one Senthilnathan (A5) came to his shop and said that they have come to settle the dispute between Kannan and Punitha amicably. While they were engaged in dialogue studdenly they attacked Natarajan. Anbazhagan (A1) took an iron rod and hit on the left side of the head, Veeramani (A2) took a wooden log and hit on the rear side of the head, Kannan(A3) took an iron rod and hit on the left portion of forearm, Kumar (A4)attacked Natarajan with his hand on the chest and Senthilnathan (A5) attaked him on the chest and shoulder. 6. Hearing the noise, Gopal (PW-5), S/o Kaliyaperumal and Velu (PW-2), S/o Muthaiyan came and protected Natarajan from being attacked further. At the time, Kannan threatened Natarajan that if he refused to allow Punitha rejoin him, he will kill. Thereafter, the assailants left the furniture shop leaving the weapon. Natarajan was taken to the hospital in an Auto and admitted as inpatient. 7. This complaint recorded from the victim at the hospital was taken up for investigation and final report filed against A1 to A5. 8. Based on the evidence collected and relied by the prosecution, the trial Court framed the following charges against the accused:- Name of the Accused Charges framed under Sections Anbazhagan(A1) 448, 147, 148 and 324 of IPC Veeramani(A2) 448, 147, 148, 324 of IPC Kannan(A3) 448, 147, 148, 324 & 506(2) of IPC Kumar (A4) 448, 147, 323 of IPC Senthilnathan (A5) 448, 147, 323 of IPC 9. To prove the charges, the prosecution has examined 8 Witnesses, marked 8 Exhibits and 3 Material Objects. The injured witness was examined as PW-1. The wound certificate is Ex.P4. Velu, who came to the spot on hearing the commotion was examined as PW-2. The wife of A1, Lakshmi examined as PW-3. Mohandoss, signatory to the Rough Sketch and Observation Mahazar examined as PW-4. Velu (PW-2) and Gopal (PW-5) were witnesses to the occurrence. The injured witness was examined as PW-1. The wound certificate is Ex.P4. Velu, who came to the spot on hearing the commotion was examined as PW-2. The wife of A1, Lakshmi examined as PW-3. Mohandoss, signatory to the Rough Sketch and Observation Mahazar examined as PW-4. Velu (PW-2) and Gopal (PW-5) were witnesses to the occurrence. The Doctor, who treated defacto complainant at Chidambaram Hospital and issued the Wound Certificate Ex.P4 was examined as PW-6. The Special Sub Inspector, who recorded the statement of the injured witness PW-1 was examined as PW-7 and the Investigating Officer was examined as PW-8. 10. Relying upon the ocular witnesses particularly, the evidence of injured and the eye witnesses PW-2 and PW-5 and the Wound Certificate [Ex.P4], the trial Court found the accused persons guilty and convicted them as stated above. In the appeal, C.A.No.44 of 2015 and C.A.No.45 of 2015 the grounds raised by the appellants/accused did not find any favour with the lower Appellate Court. Hence, they were dismissed. 11. In the Criminal Revision Case No.266 of 2016 filed by A1 to A4, it is contended that PW2 turned hostile and not supported the case of the prosecution. The manner, time and place of getting the statement of PW-1 is highly doubtful, since PW-7 has deposed contrary to his own version about the receipt of the complaint, his evidence to be rejected. It is stated that PW-7 while in chief, has stated that the complaint received at Hospital, in the cross examination he has stated that it was received in the station immediately after the occurrence. There is no evidence to show that the accused persons went to the shop of PW-1 with weapon and attacked him with premediated intention. The evidence of prosecution clearly proves that it was a sudden provocation arose in the course of negotiation and A3 who was deprived of the company of his wife, due to frustration had threatened verbally with no intention to cause any harm. The evidence does not attract the ingredient of criminal intimidation to punish A-3 under Section 506 (ii) of IPC. The trial Court, while rightly acquited A3 from charge under Section 506 (ii) of IPC ought to have acquitted him from other charges also holding no overtact attributing to this accused and admittedly the dispute arose in the course of negotiation and there was no premeditation to commit the offence. The trial Court, while rightly acquited A3 from charge under Section 506 (ii) of IPC ought to have acquitted him from other charges also holding no overtact attributing to this accused and admittedly the dispute arose in the course of negotiation and there was no premeditation to commit the offence. When two of the accused A1 and A3 being acquitted of charge under Section 148 of IPC and not convicted for Section 147 of IPC, the other three accused cannot be held guilty of offence under Section 147 of IPC. 12. As far as the 5th accused who is the revision petitioner in Crl.R.C.No.395 of 2016 it is contended that the overt act attributed against him is that he kicked PW-1 on his chest. Whereas PW-2 who is one of the eye witness turned hostile and PW-5 another eye witness had deposed that A4 and A5 attacked PW-1 all over the body. His evidence is highly exaggerated version and not even spoken by the injured. Hence, PW-5 evidence renders unreliable. 13. The Courts below failed to take note of the fact that PW-2 (Velu) is the brother-in-law of PW-1 (Natarajan) and he is an interested witness. PW-5 is an employee working under PW-1 and therefore, their evidence has to be suspected and unreliable. The discrepancies and contradiction in the First Information Report to the Police leading to suspicious of embellishment and manipulation just to make out a case for the offences under Sections 147 and 448 of IPC. 14. The learned Government Advocate (Crl.Side) appearing for State submitted that the motive for attacking PW-1 is proved through the evidence and the injury sustained by PW-1 over his head co-relates to the overt act attributed to each of the accused persons and established through PW-1 the injured, PW-2 and PW-5 the eye witnesses. Considering the medical evidence namely, Ex.P4 and the evidences of PW-1, PW-2 and PW- 5 coupled with the fact that the weapons used were recovered and marked as M.O.1 to M.O.3 are sufficient to hold the accused persons guilty of committing criminal trespass into the shop of the defacto complainant and causing hurt using weapons. The presence of all the five accused invariably spoken by the witnesses who have seen the occurrence. Hence, A5 who is member of the unlawful assembly cannot claim exception from being convicted. 15. Heard both sides and records perused. 16. The presence of all the five accused invariably spoken by the witnesses who have seen the occurrence. Hence, A5 who is member of the unlawful assembly cannot claim exception from being convicted. 15. Heard both sides and records perused. 16. Through the oral, documentary and material evidence, the prosecution has proved that A3 and his wife Punitha were living separately for quiet some time. PW-1 is the brother of Punitha. A1 to A4, who are all brothers and sons of one Govindasamy. Since the wife of A3 left him and living separately, A3 and his brothers along with their friend Senthilnathan (A5) had gone to the shop of PW-1. They had gone to PW-1 place not with the intention to attack PW-1 or to cause him injuries. They did not carry any weapon with them. The place of occurrence is the furniture shop of PW-1. Even according to PW-1, the accused came to the shop to talk about the matrimonial dispute between his sister Punitha and A3 so as to amicably settle the dispute. In the course of the dialogue, some provocation has erupted and in the said circumstances, the iron rod and the wooden log which were in the furniture shop used by the accused persons to attack PW-1. 17. The trial Court though held A1 to A5 formed unlawful assembly and committed house trespass and in the course of dialogue, attacked PW-1, after acquitting A1 and A3 for charge under Section 148 of IPC, no sentence imposed for offence under Section 147 of IPC. However, had convicted other three accused under Section 147 of IPC for being members of the unlawful assembly. 18. On cumulative assessment of the evidence, the Courts below ought to have considered the circumstances, under which the incident had occurred and should have sentenced the accused persons proportionate to the gravity of the offence. Ex.P4 Wound Certificate indicates that all the three injuries sustained by PW-1 are all simple in nature. PW-1 who got admitted in the hospital on 23.10.2010 at 12.50 p.m got discharged within a day. The trial Court while sentencing the accused persons for the respective offence had ordered the period of substantive sentence to run consecutively and the lower Appellate Court had confirmed the same. 19. PW-1 who got admitted in the hospital on 23.10.2010 at 12.50 p.m got discharged within a day. The trial Court while sentencing the accused persons for the respective offence had ordered the period of substantive sentence to run consecutively and the lower Appellate Court had confirmed the same. 19. This Court is of the view that for the offences committed and the circumstances under which the offence committed vis-a-vis the sentence imposed is not proportionate. Having held that the accused A1 to A5 formed unlawful assembly and committed house trespass, but both the Courts below inadvertent not sentenced A1 and A3 for offence under Section 147 of IPC. Also omitted to sentence A5 for offence under Section 448 of IPC having found him guilty of house trespass along with other accused. Pointing out the error in sentence, the same is modified as below:- Rank of the accused Conviction and Sentence passed by the trial Court Conviction and Sentence passed by the lower Appellate Court Conviction and Sentence modified by this Court Anbalagan (A1) To undergo 6 months RI each of the offences under Sections 324, 448 of IPC. To undergo six months RI each of the offences under Sections 324, 448 of IPC. To undergo 3 months RI for the offence under Section 324 of IPC; To pay a fine of Rs.1000/ - in default to undergo 1 month SI for the offence under Section 448 of IPC. (Total fine Rs.1000/-) Veeramani (A2) To undergo 3 months RI each of the offences under Sections 147, 323, 448 of IPC. To undergo 3 months RI each of the offences under Sections 147, 323, 448 of IPC. To pay a fine of Rs.1000/-, in default to undergo 1 month SI for each of the offences under Sections 147, 323 and 448 IPC. (Total Fine Rs.3,000/-) Kannan (A3) To undergo 6 months RI each of the offences under Sections 324, 448 of IPC. To undergo six months RI each of the offences under Sections 324, 448 of IPC. To undergo 3 months RI for the offence under Section 324 of IPC; To pay a fine of Rs.1000/ - in default to undergo 1 month SI for the offence under Section 448 of IPC. (Total fine Rs.1000/-) Kumar (A4) To undergo 3 months RI for the each of the offences under Sections 147 and 323 of IPC. To undergo 3 months RI for the offence under Section 324 of IPC; To pay a fine of Rs.1000/ - in default to undergo 1 month SI for the offence under Section 448 of IPC. (Total fine Rs.1000/-) Kumar (A4) To undergo 3 months RI for the each of the offences under Sections 147 and 323 of IPC. To undergo 6 months RI for offence under Section 448 of IPC. To undergo 3 months RI for the each of the offences under Sections 147 and 323 of IPC. To undergo 6 months RI for offence under Section 448 of IPC. To pay a fine of Rs.1000/-, in default to undergo 1 month SI for each of the offences under Sections 147, and 323 and 448 IPC. (Total fine Rs.3000/-) Senthilnathan (A5) To undergo 3 months RI each of the offences under Sections 147, 323 of IPC To undergo 3 months RI each of the offences under Sections 147, 323 of IPC To pay a fine of Rs.1000/- , in default to undergo 1 month SI each for the offences under Sections 147 and 323 of IPC (Total Fine Rs.2000/-) The period of sentence ordered to run consecutively is altered to run concurrently. In consolidation:- A1 To undergo 3 months RI and to pay fine of Rs.1000/- A2 To pay fine of Rs.3,000/- A3 To undergo 3 months RI and to pay Fine of Rs.1000/- A4 To pay fine of Rs.3,000/- A5 To pay fine of Rs.2,000/- 20. In the result, the judgment of the Courts below regarding conviction is confirmed. However, sentence is modified as stated above. Accordingly, these Criminal Revision Cases are partly allowed.