JUDGMENT

In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused no.1 and 2 in S.C.No.230 of 2009 on the file of the Court of Session, Manjeri, challenge the conviction entered and sentence passed against them for the offence punishable under Section 324 read with Section 34 IPC.

2. The prosecution case is that on 12/04/2008 at about

09:00 a.m., while PW1 was engaged in plucking coconuts from the property situated at Perunthallur, owned by his grandfather, along with Ayyappan; PW2 Madhavan and Shanmughan @ Kuttan, both the accused persons arrived at the property on a motorcycle. The first accused (A1) shouted at PW1 and the second accused (A2), the son of the first accused hacked PW1 with a knife which was warded off by PW1 with his left hand. A1 hacked him with a chopper, which was also blocked by PW1 in the like manner. A2 again with a knife stabbed on his back. Due to the attack, PW1 fell down and then both the accused persons inflicted cut injuries on his head and leg. Hence, as per the final report, the accused were alleged to have committed the offences punishable under Section 323 and 308 read with Section

34 IPC.

3. Crime No.390/2008, that is, Ext.P6 FIR was registered by PW7, the then Sub Inspector of Police, Tirur police station on the basis of Ext.P1 FIS of PW1. He thereafter conducted the investigation and after completing the investigation submitted the final report alleging the commission of the offences punishable under the aforementioned Sections before the jurisdictional magistrate.

4. On appearance of the accused persons, the magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Manjeri. The case was taken on file as S.C.No.230/2009. The case was thereafter made over to the Additional District and Sessions Judge -II for trial and disposal. On 26/08/2009, a charge under Sections 323, 324 and 308 read with Section 34 IPC was framed, read over and explained to the accused persons, to which they pleaded not guilty.

5. On behalf of the prosecution, PW1 to PW9 were examined and Exts.P1 to P7 and MO.1 chopper were got marked in support of the case. After the close of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied those circumstances and maintained their innocence.

6. As the trial court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral evidence was adduced by the accused persons. Exts.D1 to D6 were marked on the side of the accused.

7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment acquitted both the accused for the offence punishable under Section 323 and 308 read with Section 34 IPC. However, they were found guilty of the offence punishable under Section 324 read with Section 34 IPC and hence have been sentenced to undergo rigorous imprisonment for a period of six months and to a fine of ₹5,000/- and in default to rigorous imprisonment for one month. Out of the fine amount, if realised, a some of ₹2,500/- from each of the accused has been directed to be given as compensation to PW1. Aggrieved, the accused persons have come up in appeal.

8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused persons by the trial court are sustainable or not.

9. Heard both sides.

10. PW1, the injured when examined deposed that on 12/04/2008 by 09:00 a.m., he was in the property owned by his grandfather situated in Perunthallur along with CW4 and CW5. CW4 was plucking coconuts and CW5 and CW6 was collecting coconuts; cadjans and stalks. Both the accused arrived there on a