Procedural irregularities in sentencing invalidate conviction under IPC.

ORDER

The concurrent verdicts of the Judicial First Class Magistrate Court-I, Chalakudy, and the Additional Sessions Court, Irinjalakuda, in C.C.No.1614/2004 and Crl.Appeal No.648/2007 respectively, convicting and sentencing the petitioner for the commission of offences under Sections 447 and 326 of the Indian Penal Code, 1860 , are under challenge in this revision petition.

2. The prosecution case is that the petitioner criminally trespassed into the courtyard of the residence of PW2 at about 7.30 p.m. on 02.10.2004 and inflicted voluntary grievous hurt upon him by hitting with an iron rod on his right shoulder. As a result of the aforesaid assault, PW2 is said to have sustained fracture of right clavicle.

3. In the trial before the learned Magistrate, the prosecution examined eight witnesses as PW1 to PW8, and brought on record four documents as Exts.P1 to P4. The iron rod allegedly used by the petitioner for inflicting grievous hurt upon PW2 was identified and marked as MO1. After the analysis of the aforesaid evidence, the learned Magistrate held that the prosecution has successfully established the commission of offences under Sections 447 and 326 IPC . Accordingly, the petitioner was convicted and sentenced to Simple Imprisonment for one year for the offence under Section 326 , and fine of Rs.2,000/- for the offence under Section 447 . The petitioner challenged the aforesaid verdict in appeal before the Additional Sessions Court, Irinjalakuda. The learned Additional Sessions Judge declined to interfere with the findings of the Trial Court and accordingly dismissed the appeal, confirming the conviction and sentence. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

4. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

5. As already stated above, the petitioner faced trial before the learned Magistrate for the commission of offences under Sections 326 and 447 IPC . Obviously, the procedure for warrant trial, as envisaged under Chapter XIX of the Code of Criminal Procedure , was followed by the learned Magistrate. However, it is seen that the learned Magistrate resorted to the imposition of sentence without hearing the petitioner as required under Section 248 (2) Cr.P.C. The non-compliance of the above procedural requirement would vitiate the sentence awarded by the Trial Court. That apart, the Trial Court imposed a fine of Rs.2,000/- for the offence under Section 447 , in ignorance of the fact that the maximum fine which could be imposed as per the above provision is only Rupees five hundred. The Appellate court did not notice the above serious irregularity in the proceedings of the Trial Court. Since the incident involved in this case took place more than two decades ago, there is no purpose which would be fulfilled by a remand of this case to the Trial Court again, for the purpose of hearing the petitioner/accused on the question of sentence, and for imposing the punishment afresh. Therefore, I am of the view that the conviction and sentence awarded by the courts below, are liable to be set aside due to the above serious procedural irregularity committed by the Trial Court, which went unnoticed by the Appellate Court.

In the result, the revision petition stands allowed as follows:

1) The conviction recorded and the sentence awarded by the Judicial First Class Magistrate Court-I, Chalakkudy, in C.C.No.1614/2004, which was upheld by the Additional Sessions Court, Irinjalakuda, in Crl.Appeal No.648/2007, are hereby set aside.

2) The petitioner/accused is acquitted of the aforesaid offence.

3) His bail bond stands cancelled and he is set at liberty.

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