JAYAKRISHNAN v. STATE OF KERALA

Crl.R.P. Nos. 191 of 2000 & 229 of 2000-:4:-imprisonment for one month each. From out of the fine amount asand when realised, a sum of Rs. 10,000/- was directed to be givento P.W.1 as compensation under Sec. 357 Cr.P.C. The Substantivesentences of imprisonment were directed to run concurrently.6.On appeal preferred by all the accused as Crl.Appeal No.203 of 1998 before the Sessions Court, Kottayam, the lower appellatecourt acquitted all the accused of the offence punishable under Sec.435 I.P.C. but confirmed the conviction and sentence with regard tothe other offences. It is the said appellate judgment which is assailedin these Revisions.7.Eventhough the learned counsel appearing for the revisionpetitioners assailed the conviction and sentence on various ground, inas much as the conviction has been rendered by the courts below(which are the final court of facts) after an evaluation of the oral anddocumentary evidence in the case, this Court sitting in the rarefiedrevisional jurisdiction will be loathe to interfere with the said convictionwhich is based on the evidence adduced in this case. In the absenceof any infirmity in the appreciation of evidence by the courts below,this Court will not re-appreciate the evidence and come to a differentconclusion even if it were possible. But, in case of the charge underSec. 148 I.P.C. eventhough all the accused were convicted by the Crl.R.P. Nos. 191 of 2000 & 229 of 2000-:5:-courts below for the said offence, it is discernible from theprosecution evidence that A1 to A3 alone were armed with deadlyweapons being members of the unlawful assembly which committedthe offence of rioting. A4 to A8 were not armed with deadly weaponsalthough they were members of the unlawful assembly who shared thecommon object. It is well settled that those members of the unlawfulassemble who were not armed with deadly weapons cannot beconvicted under Sec. 148 I.P.C. with the aid of Sec. 149 I.P.C. andonly those members who were actually armed with deadly weaponscould be convicted under Section 148 I.P.C. Vide Kabul Singh Vs.State of Punjab - 1995 SCC Crl. 1035 and Kottintavida Sureshv. State of Kerala - 2005 (3) KLD 619) . Hence the conviction andsentence passed against accused Nos. 4 to 8 for the offencepunishable under Sec. 148 I.P.C. is set aside. With regard to theremaining offences the finding recorded by the lower appellate courtjustify the conviction. Subject to the above, I, therefore, confirm theconviction recorded by the lower appellate court against the revisionpetitioners.8.What now survives for consideration in these revisions is asto the legality and extent of the sentence. This case had a chequeredprogression. There was once a remand to the trial court from the Crl.R.P. Nos. 191 of 2000 & 229 of 2000-:6:-lower appellate court . The occurrence itself took place on 20-7-1988. The accused have undergone the trauma and ordeal of aprotracted trial and at the crime stage they were in jail for eightdays. The sword of Damocles had been hanging on their heads foran unduly long period. Taking these mitigating circumstances intoaccount, I am of the view that the revision petitioners do not deservepenal servitude by way of incarceration and that an appropriateenhancement of fine and a direction to pay compensation for theoffences other than the offence punishable under Sec. 440 I.P.C. andimprisonment till rising of court besides fine for the offence punishableunder Sec. 440 I.P.C. (for which imprisonment is mandatory) shallmeet the ends of justice. Accordingly, the sentence imposed on therevision petitioners by the lower appellate court for theaforementioned offences is set aside. Instead, A1 to A8 are eachsentenced to imprisonment till rising of court and to pay fine of Rs.2000/- under Sec. 440 I.P.C.. For their conviction under Sections148, 506 (ii) and 447 I.P.C. A1 to A3 are each sentenced to pay afine of Rs. 2,000/- each and on default to pay the fine to suffersimple imprisonment for one month . For their conviction under Sec.143 I.P.C. A1 to A8 are each sentenced to pay fine of Rs. 2000/- andon default to pay fine to suffer simple imprisonment for one month. Crl.R.P. Nos. 191 of 2000 & 229 of 2000-:7:-For their conviction under Secs. 506 (ii) and 447 I.P.C. A4 to A8 areeach sentenced to pay fine of Rs. 1,500/- and on default to pay thefine to suffer simple imprisonment for one month. The fine amountshall be paid within 45 days from today failing which the defaultingaccused shall undergo the default sentence as indicated above. Fromout of the fine amount, Rs. 15,000/- shall be paid to P.W.1 by way ofcompensation under Sec. 357 (1) Cr.P.C. The trial court shall giveappropriate set off in case any portion of the fine has been remittedby any of the accused. In the result these revisions are disposed of confirming theconviction (except the one punishable under Sec. 148 I.P.C. withregard to A4 to A5) but modifying the sentence as above. V. RAMKUMAR, (JUDGE)ani. Crl.R.P. Nos. 191 of 2000 & 229 of 2000-:8:-V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * * Crl.R.P. Nos. 191 of 2000 & 229 of 2000* * * * * * * * * * * * * * * * * * Dated, this the 17th day of August 2007ORDER