Deficiencies in evidence regarding weapon usage led to reclassification of offenses and modification of sentences.

ORDER

The revision petitioners are the accused Nos.3 and 7 in CC No.349/1999 on the files of the Judicial First Class Magistrate Court V, Thiruvananthapuram. They faced trial for the commission of offences under Sections 143 , 147, 148 and 324 IPC read with Section 149 . 2. The learned Magistrate by the judgment rendered on

09.07.2002, convicted the petitioners, along with 4 other accused, for the commission of the aforesaid offences. They were sentenced to undergo Simple Imprisonment for 6 months each and to pay compensation of Rs.250/- each to PW1 to PW3 and CW2. The aforesaid verdict of the learned Magistrate was challenged in Crl.Appeal No.226/2002 by the 3rd accused and the 1st accused, and in Crl.Appeal No.235/2002 by the 7th accused before the Sessions Court, Thiruvananthapuram. The learned Additional Sessions Judge, who considered the above appeals, concurred with the learned Magistrate as far as the conviction is concerned. However, the learned Additional Sessions Judge modified the sentence awarded by the Trial Court. Accordingly, the accused Nos.1 to 3 and 5 to 7 were sentenced to undergo Simple Imprisonment for two months each for the offence under Section 143 , Simple Imprisonment for a period of three months each for the offence under Section 147 , Simple Imprisonment for a period of 3 months each for the offence under Section 148 and Simple Imprisonment for six months each for the offence under Section 324 IPC , and the sentences were directed to run concurrently. It is aggrieved by the above concurrent findings of conviction, and modified sentence awarded by the Appellate Court, that the accused Nos.3 and 7 have filed these revision petitions.

3. The prosecution case is that on 22.04.1999 at about 11.15 pm, the accused formed themselves into an unlawful assembly armed with dangerous weapons like motor cycle chain, stones, etc., and committed rioting by physically assaulting PW1, who happened to be there at the place of occurrence. The accused are also alleged to have mounted physical assault upon PW2 and PW3, who came to the spot, and caused injuries to all the above witnesses.

4. In the trial before the learned Magistrate, the prosecution examined 6 witnesses as PW1 to PW6 and brought on record 5 documents as Exts.P1 to P5. It is by relying on the aforesaid evidence that the learned Magistrate convicted the accused Nos.1 to 3 and accused Nos.5 to 7 and awarded the sentence as stated above. In the appeal, the learned Additional Sessions Judge made a reappraisal of the entire evidence and held that there is no reason to interfere with the finding of conviction. However, the sentence was modified as stated in paragraph No.2 above. In the present petitions, the petitioners would contend that the courts below went wrong in arriving at the finding that the petitioners committed the offences alleged against them.

5. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the State of Kerala.

6. The Trial Court relied on the evidence tendered by PW1 to PW3 towards arriving at the finding that the petitioners herein, along with the other 4 accused, committed the offence alleged against them. The Appellate Court also found that there are no serious infirmities in the aforesaid evidence to reject the testimonies of the aforesaid witnesses. However, it is pertinent to note that as regards the offence under Section 324 IPC , evidence is lacking on the point as to whether the weapons alleged to have been used could be termed as dangerous weapons or objects which are capable of causing death. There is no recovery of the weapons allegedly used by petitioners. Nor had the prosecution got any explanation for the failure to recover the weapons. In the ab