Conviction under IPC sections was upheld based on consistent witness testimony; insufficient evidence led to mitigating charges against co-accused.

O R D E R

The judgment rendered by the Additional Sessions Court, Thalassery in Crl.A No.622/2001 is under challenge in this revision at the instance of accused Nos.1 to 4 in C.C No.881/1995 on the files of the Judicial First Class Magistrate Court, Thaliparamba who are the appellants therein. The petitioners were convicted and sentenced by the Judicial First Class Magistrate, Thaliparamba for the commission of offences under Sections 452 , 323 and 324 r/w Section 34 I.P.C. They were awarded simple imprisonment for two months for the offence under Section 452 I.P.C, simple imprisonment for thirty days for the offence under Section 324 I.P.C, and simple imprisonment for 15 days and fine Rs.1,000/- each for the offence under Section 323 I.P.C by the learned Magistrate. In the appeal, the learned Additional Sessions Judge set aside the conviction and sentence awarded upon the accused Nos.2 to 4 for the offence under I.P.C. While retaining the conviction for the offence under I.P.C upon the first accused, the conviction for the offence under I.P.C upon all accused were set aside and modified to I.P.C. Accordingly, the first accused was sentenced to simple imprisonment for two months under I.P.C, and simple imprisonment for thirty days and fine Rs.1,000/- with a default clause of simple imprisonment for 15 days under I.P.C with the direction that the substantial sentence of imprisonment shall run concurrently. Accused Nos.2 to 4 were sentenced to fine Rs.1,000/- each under I.P.C r/w I.P.C with a default clause of simple imprisonment for 15 days each. Though accused Nos.2 to 4 remitted the aforesaid fine, they, along with the first accused, have challenged the verdict of the Appellate Court in this revision.

2. Since there was no representation from the petitioners in spite of notice issued to them, Adv.Mr.Rahul Sunil was appointed as Amicus Curiae to represent the petitioners.

3. Heard the learned Amicus Curiae representing revision petitioners and the learned Public Prosecutor representing the State of Kerala.

4. The prosecution case is that on 20.08.1995, at about 6:00 p.m, the accused, with the common intention to physically assault PW1, criminally trespassed into the residence of PW1 and inflicted voluntary hurt upon him by beating with a stick. It is alleged that the first accused dragged PW1 to the courtyard of his house and beat him with a stick, while the other accused beat him with hands. When PW3 tried to intervene, the first accused is alleged to have beat on his head with that stick. The first accused is also alleged to have hit PW4 with a cycle stand. The second accused is alleged to have hit PW5 with a cycle pump and caused injuries to him. Thus, the accused are alleged to have committed the aforesaid offences.

5. In the trial before the learned Magistrate, the prosecution examined 10 witnesses as PW1 to PW10 and marked seven documents as Exts.P1 to P7. MO1 to MO7 were identified. From the part of the accused, one witness was examined as DW1. It is after evaluating the aforesaid evidence that the learned Magistrate arrived at the finding that the prosecution successfully established that the accused committed the offences punishable under Sections 452 , 323 and 324 I.P.C r/w Section 34 I.P.C.

6. The Appellate Court made a re-appraisal of the whole evidence and concurred with the finding of the learned Magistrate that all the witnesses gave consistent versions about the act of the first accused dragging PW1 from his house to the veranda and mounting physical assault upon him with a stick. However, the Appellate Court found that the evidence was insufficient to show that the other accused committed house trespass into the residence of PW1 after making preparations for committing assault. The Appellat