Kerala High Court
Rajamma vs State Of Kerala on 13 November, 2024
Crl.Appeal(V) No.149 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA,
1946
CRA(V) NO. 149 OF 2016
CRIME NO.464/2009 OF VAIKOM POLICE STATION, KOTTAYAM
AGAINST THE JUDGMENT DATED 19.12.2014 IN CRIMINAL
APPEAL NO.58 OF 2014 ON THE FILE OF THE COURT OF SESSION,
KOTTAYAM.
APPELLANT/PW1, VICTIM:
RAJAMMA,
AGED 61 YEARS,
W/O.LATE VELAYUDHAN, VALEKKARY HOUSE,
EAST OF CHEMBU POST OFFICE, CHEMBU VILLAGE,
VAIKOM TALUK, KOTTAYAM.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENTS/ACCUSED/STATE:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
(CRIME NO.464/2009 OF VAIKOM POLICE STATION,
KOTTAYAM DISTRICT).
2 MOHANAN,
S/O.PADMANABHAN, VALEKKARIYIL HOUSE,
Crl.Appeal(V) No.149 of 2016
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EAST OF CHEMPU POST OFFICE,
CHEMPU KARA, PIN-686 615.
3 VIJAYAN @ VISWAN,
S/O.PADMANABHAN, VALEKKARIYIL HOUSE,
EAST OF CHEMPU POST OFFICE,
CHEMPU KARA, PIN-686 615.
4 HARIDASAN @ KARIKUTTAN,
VALEKKARIYIL HOUSE,
EAST OF CHEMPU POST OFFICE,
CHEMPU KARA, PIN-686 615.
5 SUKUMARAN,
S/O.PADMANABHAN, VALEKKARIYIL HOUSE,
EAST OF CHEMPU POST OFFICE,
CHEMPU KARA, PIN-686 615.
6 SIJI,
S/O.CHELLAPPAN, VALEKKARIYIL HOUSE,
EAST OF CHEMPU POST OFFICE,
CHEMPU KARA, PIN-686 615.
BY ADVS.
SRI.GOKUL DAS V.V.H.
SRI.S.RANJIT KOTTAYAM
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL BY DEFACTO COMPLAINANT/VICTIM
HAVING BEEN FINALLY HEARD ON 05/11/2024, THE COURT ON
13.11.2024 DELIVERED THE FOLLOWING:
Crl.Appeal(V) No.149 of 2016
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C.S.SUDHA, J.
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Crl.Appeal(V) No.149 of 2016
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Dated this the 13th day of November 2024
JUDGMENT
In this appeal filed under the proviso to Section 372 Cr.P.C.,
the appellant, one of the injured (PW1) in Crl.Appeal No.58/2014
on the file of the Court of Session, Kottayam challenges the
judgment dated 19/12/2014, which appeal in turn was against the
judgment dated 07/02/2014 in C.C.No.1193/2009 on the file of
the Court of the Judicial Magistrate of First Class, Vaikom. The
said appeal was filed by the five accused persons in
C.C.No.1193/2009 challenging the conviction and sentence
passed against them for the offences punishable under Sections
143, 147, 323, 325 read with Section 149 IPC.
2. The prosecution case is that the accused persons
were in inimical terms with PW1. PW2 to PW4 are the
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children of PW1. Due to the enmity of the accused towards
PW1, on 24/05/2009 at about 06:30 hrs, all the five accused
persons formed themselves into an unlawful assembly armed with
deadly weapons like reapers etc., in the pathway leading to the
house of PW1 and obstructed PW2. The second accused beat
PW2 on his hand and back with a reaper. The third accused beat
PW4 on various parts of his body with a reaper. On seeing the
assault on her children, PW1 tried to intervene. The first accused
abused PW1 by calling her obscene words and all the accused
together beat her with reapers and with their hands and also
kicked her. When PW3, asked the accused not to assault her
mother and brothers, the third and the fifth accused caught hold of
her hands and the second accused beat her on the head with a
reaper. PW2 sustained a fracture to his left wrist on account of
the attack made by the accused with a reaper. As per the final
report the accused were alleged to have committed the offences
punishable under Sections 143, 144, 147, 148, 341, 323, 324, 326,
354 and 294(b) read with Section 149 IPC.
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3. On the basis of Ext.P1 FIS given by PW1, crime
no.464/2009 of Vaikom police station, that is, Ext.P8 FIR was
registered by PW10, the Head Constable of the said station.
PW11 is the Sub Inspector, who had conducted the initial
investigation in the case. PW12 is the Sub Inspector, who
completed the investigation and submitted the final report before
the court alleging the commission of the offences punishable
under the aforementioned sections.
4. After the final report was submitted before the
jurisdictional magistrate, the trial court framed a charge for the
aforesaid offences, which was read over and explained to the
accused to which they pleaded not guilty.
5. The prosecution examined PW1 to PW12 and got
marked Exts.P1 to P11. All the accused persons were questioned
313(1)(b) Cr.P.C. with regard to the incriminating circumstances
appearing against them in the evidence of the prosecution. The
accused denied all those circumstances and maintained their
innocence. No oral evidence was adduced by the
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accused. Exts.D1 and D2 were marked on the side of the accused
persons.
6. The trial court on a consideration of the oral and
documentary evidence found no evidence to find the accused
guilty of the offences punishable under Sections 144, 148, 294(b),
341, 354, 324 and 326 IPC and hence acquitted them of the said
offences under Section 235(1) Cr.P.C. However, the trial court
found the accused persons guilty of the offences punishable under
Sections 143, 147, 323 and 325 read with Section 149 IPC and
hence convicted them thereunder. The trial court sentenced the
first accused to a fine of ₹ 2000/- each and in default to simple
imprisonment for a period of one month each for the offences
punishable under sections 143 and 147 IPC; to imprisonment till
the rising of the court and to a fine of ₹10,000/- and in default to
simple imprisonment for a period of one month for the offence
punishable under section 325 IPC and; to pay a fine of ₹1,000/-
and in default to undergo simple imprisonment for a period of one
month for the offence punishable under section 323 IPC. Accused
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2 to 5 have been sentenced to simple imprisonment for two
months each and fine of ₹2,000/- each and in default to simple
imprisonment for a period of one month each for the offence
punishable under section 143 IPC; to simple imprisonment for six
months each and fine of ₹2,000/- each and in default to simple
imprisonment for a period of three months each for the offence
punishable under section 147 IPC; to simple imprisonment for
two years each and to fine of ₹10,000/- each and in default to
simple imprisonment for three months each for the offence
punishable under section 325 IPC and to simple imprisonment for
two months each and fine of ₹1,000/- each and in default to
simple imprisonment for one month each for the offence
punishable under section 323 IPC. The substantive sentences of
imprisonment have been directed to run concurrently. Out of the
fine amount if realised, an amount of ₹10,000/- has been directed
to be given to PW2 as compensation under section 357(1) Cr.P.C.
Aggrieved, the accused persons preferred Crl.Appeal.No.58/2014.
7. The appellate court by the impugned judgment
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allowed the appeal in part and it has been ordered thus: -
"(1) Conviction of the accused by the trial court under
sections 143, 147, 323 and 325 read with 149 of the
Indian Penal Code is confirmed.
(2) The sentence imposed on the first accused by the
trial court is modified. The sentence of imprisonment till
the rising of the court imposed on him by the trial court
for the offence punishable under section 325 of the
Indian Penal Code is set aside. The sentence of fine
imposed on the first accused by the trial court is also
modified. He is sentenced to pay a fine of Rs.5,000/-
(Rupees five thousand only) and in default of payment of
fine to undergo simple imprisonment for a period of one
month for the offence punishable under section 325 of the
Indian Penal Code. He is also sentenced to pay a fine of
Rs.1,000/- (Rupees thousand only) each for the offences
punishable under sections 143, 147 and 323 of the Indian
Penal Code and in default of payment of fine, he shall
undergo simple imprisonment for a period of fifteen days
each.
(3) The sentence of imprisonment imposed on the
accused 2 to 5 by the trial court for the offences
punishable under sections 143, 147, 323 and 325 of the
Indian Penal Code is set aside.
(4) The sentence of fine imposed on accused 2 to 5 by
the trial court is modified. They are sentenced to pay a
fine of Rs.5,000/- each (Rupees five thousand only) and
in default of payment of fine to undergo simple
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imprisonment for a period of one month each for the
offence punishable under section 325 of the Indian Penal
Code. They are also sentenced to pay a fine of Rs.1,000/-
each (Rupees thousand only) for the offences punishable
under sections 143, 147 and 323 of the Indian Penal
Code and in default of payment of fine to undergo simple
imprisonment for a period of fifteen days each.
(5) If the fine amount is realised, Rs.20,000/- (Rupees
twenty thousand only) shall be given to PW2 and
Rs.5,000/- each (Rupees five thousand only) shall be
given to PW1, PW3 and PW4 as compensation under
section 357(1) Crl.P.C."
Aggrieved, PW1, one of the injured, has come up in appeal.
8. The only point that arises for consideration in this
appeal is whether there is any infirmity, illegality or irregularity in
the findings of the appellate court calling for an interference by
this Court.
9. Heard both sides.
10. According to the learned counsel for PW1/the
injured/appellant, the appellate court went wrong in modifying
the sentence passed by the trial court. It also went wrong in
confirming the acquittal of the accused of the offences punishable
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under Sections 144, 148, 294(b), 341, 354, 324 and 326 IPC. The
appellate court ought to have considered the revision filed by
PW1 aggrieved by the inadequacy of sentence passed by the trial
court. In the appeal filed by the accused persons, PW1 was never
a party and hence she was unaware of the pendency of the appeal,
while the accused were well aware of the pendency of the
revision. The accused persons ought to have brought the same to
the notice of the appellate court and the appellate court ought to
have considered and disposed of the appeal as well as the revision
simultaneously.
11. Per contra, referring to the prayer in the appeal
memorandum, it was submitted by the learned counsel appearing
for respondents 2 to 6 (accused 1 to 5) that the appeal is not
maintainable; that there is no infirmity in the findings of the
appellate court; that the fine amount that has been ordered by the
appellate court has already been remitted and as the impugned
judgment suffers from no infirmity, no interference is called for.
It was also submitted that the 2nd respondent (1st accused) is no
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more.
12. The proviso to Section 372 Cr.P.C. says that the
victim shall have a right to prefer an appeal against any order
passed by the Court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation. The prayer
in the appeal memorandum reads thus -
" For these and other grounds to be raised at time of
hearing it is most humbly prayed that this Hon'ble Court
may be pleased to admit this Criminal Appeal and call for
the records leading to Judgment Crl.Appeal No.58/2014
passed by the Court of Sessions, Kottayam, modifying order
in C.C.No.1193/2009 passed by the JFCM-I, Vaikom, and set
aside the same to be disposed with Crl.R.P.No.41/2014 and
remit back for fresh consideration as per law."
12.1. If PW1 was aggrieved by the acquittal of the accused
or conviction for a lesser offence or for imposing inadequate
compensation, the remedy available to her was to file an appeal as
contemplated under the proviso to Section 372 Cr.P.C., which was
inserted w.e.f. 31/12/2009. The judgment of the trial court in
C.C.No.1193/2009 is dated 07/02/2014. Hence, PW1 had the
right to file an appeal. It is submitted that the
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revision filed by PW1 was dismissed as time barred.
Crl.M.C.No.310/2017 filed by PW1 against the order dismissing
the revision has been disposed of by this Court vide order dated
03/09/2024. The learned Single Judge in the said order held
thus:-
" 3. Considering the facts and circumstances of the case
and also since the appeal is pending before this Court
which is filed by the petitioner, I am of the considered
opinion that, this Crl.M.C. need not be retained here. The
petitioner can raise all the contentions in this Crl.M.C. In
the pending appeal, in accordance with law."
The remedy of PW1 was to file an appeal. As the said remedy
has not been resorted to, at this stage, she cannot challenge the
findings of the trial court in C.C.1193/2009.
13. According to the learned counsel for the
injured/appellant, the trial court went wrong in not finding the
accused guilty of the offence punishable under Section 326 IPC
and converting it into a minor offence under Section 325 IPC
based on the evidence on record. However, as stated earlier, the
remedy of PW1, the appellant was to file an appeal. As the said
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remedy has not been resorted to, she cannot challenge the said
finding of the trial court at this stage. However, as per Section
325 IPC when a person voluntarily causes grievous hurt to
another, is liable to be punished with imprisonment for a term
which may extend to seven years and shall also be liable to fine.
Therefore, as rightly pointed out, imposition of a substantive
sentence of imprisonment was mandatory. To that extent, the
appellate court went wrong and hence the judgment needs
interference on that aspect. The appellant has a case that the
compensation awarded is too meagre. PW2, her son had
sustained a fracture and that herself and her children, PW3 and
PW4 had also sustained simple injuries. In such circumstances,
they ought to have been compensated adequately. The
compensation awarded is too low and therefore interference into
the same is also called for.
14. Per contra, it was submitted by the learned counsel for
respondents 3 to 6 (accused 2 to 5) that the fine amount ordered
by the appellate court has already been remitted
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and the compensation awarded is adequate and so no interference
is called for.
15. On going through the impugned judgment I find that
the appellate court has done a thorough re-appreciation of the
evidence on record. There is a detailed discussion of the evidence
of the injured witnesses, namely, PW1 to PW4 in the impugned
judgment. I find no infirmity in the findings of the appellate
court calling for an interference by this Court. Therefore, the
finding of the appellate court that the materials on record in fact
proves the offences punishable under Sections 143, 147, 323 and
325 IPC is only liable to be confirmed.
16. Now coming to the sentence to be imposed on the
accused persons. The appellate court set aside the sentence of
imprisonment imposed on accused 2 to 5 by the trial court taking
note of the fact that the incident took place during the course of
an altercation between the injured and the accused persons, who
are admittedly neighbours. In such circumstances the appellate
court opined that it was not necessary to impose any substantive
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sentence of imprisonment on the accused. I fully agree with the
said finding except in the case of the offence punishable under
Section 325 IPC. In these circumstances, the impugned judgment
is modified thus -
i) The conviction of the accused persons for the
offences punishable under Sections 143, 147,
323 and 325 IPC read with Section 149 IPC is
confirmed. The first accused after the impugned
judgment passed away. Hence the appeal as
against the substantive sentence of
imprisonment against him shall stand abated.
However, the sentence of fine against the first
accused shall stand confirmed.
ii) A2 to A5 are sentenced to undergo
imprisonment till the rising of the court for the
aforesaid offences.
iii) The sentence of fine imposed on A2 to A5 is
set aside and they are directed to pay
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compensation of ₹45,000/- under Section 357(3)
Cr.P.C.
iv) Out of this, ₹30,000/- shall be paid to PW2
as he had sustained a fracture. PW1, PW3 and
PW4 shall each be entitled to the remaining
amount of ₹15,000/-. The amount that has
already been remitted by A2 to A5 shall be given
due credit. In default of payment of
compensation A2 to A5 shall undergo
imprisonment for a period of three months.
In the result, the appeal is disposed of in the above terms.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
