The High Court may alter sentences based on circumstances despite concurrent findings of guilt.

O R D E R

This criminal revision petition has been filed challenging the concurrent findings of conviction and sentence under Sections 452 and 323 of the Indian Penal Code , 1860 (for short, 'the IPC ').

2. The petitioners faced trial for the offences punishable under Sections 452 , 323 and 324 read with Section 34 of the IPC before the Chief Judicial Magistrate Court, Kollam (for short, 'the trial court'). The prosecution case, in short, is that the petitioners criminally trespassed into the residential building of the defacto complainant and her husband on 19.12.1997 at 6:00 a.m., assaulted them with an iron rod and thereby committed the offences.

3. Before the trial court, PWs 1 to 6 were examined and Exts.P1 to P5 were marked on the side of the prosecution. No defence evidence was adduced. After trial, the trial court found the petitioners guilty for the offences punishable under Sections 323 and 452 of the IPC and they were convicted for the said offences. They were sentenced to undergo rigorous imprisonment for six months each and to pay a fine of Rs.2,000/- each, in default, to undergo rigorous imprisonment for one month each for the offence punishable under Section 452 of the and to undergo rigorous imprisonment for three months each for the offence under Section 323 of the . The petitioners challenged the conviction and sentence of the trial court before the Sessions Court, Kollam (for short, 'the appellate court') in Crl.Appeal No. 26 of 2003. The appellate court dismissed the appeal. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court.

4. I have heard Sri.C.Rajendran, the learned counsel for the petitioners and Sri.E.C.Bineesh, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners submitted that the conviction was based on the evidence of PWs 1 and 2, who are interested witnesses and no independent witness was examined to prove the occurrence. The learned counsel further submitted that the iron rod allegedly used for the commission of the offence was not recovered. The learned counsel also submitted that at any rate the sentence imposed is excessive.

6. On the other hand, the learned Public Prosecutor supported the findings and verdict handed down by the trial court as well as the appellate court and argued that the necessary ingredients of Sections 452 and 323 of the IPC had been established and the prosecution had succeeded in proving the case beyond reasonable doubt.

7. The trial court as well as the appellate court relied on the evidence of PWs 1, 2 and 3 to prove the incident and to fix the culpability on the accused. PWs 1 and 2 are the injured witnesses. PW1 is the wife of PW2. The incident took place in the kitchen of the house of PWs 1 and 2. The petitioners are neighbours of PWs 1 and 2. PW1 deposed that when she was in her house, the petitioners trespassed into the house asking 'where is your husband'. Thereafter, the petitioner No.1 beat on her nose with an iron rod. The petitioner No.2 pulled her towards the wall of the building. The husband, who was in the other room, immediately came there and intervened. Thereupon the petitioner No.1 beat him also. PW2, the husband of PW1 deposed in tune with the evidence tendered by PW1 regarding the occurrence. Even though PWs 1 and 2 were cross-examined in length, nothing tangible could be extracted from their testimony to discredit their evidence. They gave a clear and consistent version of the crime. The incident took place at 6:00 a.m., in the kitchen of the house. At that time one cannot expect an independent witness to see the incident. Therefore, the argument of the learned counsel for the petitioners that no independent witness wa