Omanakkuttan vs The State Of Kerala

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.800 OF 2020 (Arising out of S.L.P.(Crl.)No.4500 of 2019)

Omanakkuttan & Ors. ...Appellants

Versus

State of Kerala ...Respondent

J U D G M E N T

R.Subhash Reddy,J.

1. Leave granted.

2. This criminal appeal is filed by the

accused/A1 to A3, in Sessions Case No. 20 of 2004,

on the file of Additional Sessions Judge, (Adhoc)-

1, Kottayam Division, aggrieved by the judgment of

conviction and sentence dated 20.04.2004 and the

judgment dated 23.02.2018 in criminal appeal No.

711 of 2004, passed by the High Court of Kerala, at

Ernakulam.

Signature Not Verified 3. Digitally signed by ARJUN BISHT

The appellants/accused A1 to A3, were tried for Date: 2020.11.20 13:52:24 IST Reason:

offence punishable under Sections 324, 326 and 308

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read with Section 34 of Indian Penal Code, 1860

(for short ‘IPC’). On conclusion of trial, by

appreciating oral and documentary evidence on

record, learned Sessions Judge by judgment dated

20.04.2004, convicted them for the aforesaid

offences. They were sentenced to undergo rigorous

imprisonment for five years each, for the offence

under Section 308 read with Section 34 IPC and for

offence under Section 326 IPC, they were sentenced

to undergo rigorous imprisonment for five years and

also to pay a fine of Rs. 5000/- each, in default

of payment of fine, to undergo simple imprisonment

for a period of two years each. The fine amount was

ordered to be paid to PW-1, as compensation. No

separate sentence is awarded for the offence under

Section 324 IPC.

4. Aggrieved by the conviction recorded and

sentence imposed by the Court of Additional

Sessions Judge, (Adhoc-1) of Kottayam Division, the

appellants herein have preferred appeal in criminal

appeal no.711 of 2004, before the High Court of

Kerala, at Ernakulam.

5. Vide judgment dated 23.02.2018, in criminal

appeal No.711 of 2004, the High Court while

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confirming the conviction, has modified the

sentence of rigorous imprisonment for a period of

three years and to pay a compensation of

Rs.25,000/- for the offence under Section 308 read

with Section 34 IPC and in default to undergo

simple imprisonment for two years. While

maintaining the conviction for offence under

Section 326 IPC, reduced the sentence to three

years rigorous imprisonment and to pay compensation

of Rs.25,000/- and in default to undergo simple

imprisonment for two years. At the same time, the

High Court has not awarded any separate sentence

for offence under Section 324 IPC.

6. We have heard Mr. Adolf Mathew, learned counsel

appearing for the appellants and Mr. Nishe Rajen

Shonker, learned counsel appearing for the State of

Kerala.

7. This Court, vide order dated 06.05.2019, issued

notice on the quantum of sentence only.

8. At the outset, learned counsel for the

appellants has submitted that appellant nos. 1 and

2 have already served the sentence. As such, he is

not pressing the appeal for appellant Nos. 1 & 2 3 Crl.A.@S.L.P.(Crl.)No.4500/19

and confined his submissions for appellant No.3

only.

9. It is submitted that though there is no

sufficient evidence to prove the guilt of the

accused, for the offence alleged, the Trial Court

has convicted the appellants and imposed a sentence

and same was erroneously confirmed in appeal by the

High Court. It is submitted that there was no light

at the alleged place of occurrence and they were

apprehended after 10 months of the incident. It is

further submitted that in any event the alleged

incident is occurred on 13.01.2002, and that the

appellants as well as injured are relatives, as

such a leniency may be shown in imposing the

sentence. Further it is submitted that in view of

his poor economic condition, he cannot afford to

pay compensation of Rs.25,000/- for offence under

Section 308 read with Section 34 of IPC and

compensation of Rs.25,000/- for offence under

Section 326 IPC.

10. Learned counsel for the appellants has made a

request to reduce the sentence as well as

compensation awarded by the High Court. On the

other hand, learned counsel appearing for the

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respondent-State, has submitted that multiple

fractures were inflicted by the appellants on the

injured, as such, no interference is called for.

11. Although learned counsel has made his

submissions on the merits of the matter, as this

Court has issued notice only on quantum of

sentence, we are not inclined to go into the merits

of conviction recorded. At the same time,

considering the fact that the incident occurred on

13.01.2002 and the 3rd appellant herein has already

served more than two years of sentence, and further

considering the totality of facts and circumstances

of the case, we are of the view that it is a fit

case to modify the sentence and reduce the

compensation of Rs.25,000/- each for offence under

Section 308 read with Section 34 IPC and for

conviction under Section 326 IPC.

12. For the aforesaid reasons, while maintaining

the conviction recorded by the Trial Court, as

confirmed by the High Court, for the offence under

Section 308 read with Section 34 IPC and also under

Section 326 IPC, we reduce the sentence imposed on

the 3rd appellant, for the period already undergone.

The compensation awarded for the offence under

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Section 308 read with Section 34 IPC is reduced to

Rs.5,000/-and similarly compensation of Rs.25,000/-

awarded for offence under Section 326 IPC is also

reduced to Rs.5,000/-. If the compensation, as

awarded, is not paid, the same shall be paid within

a period of two months from today to PW-1. At the

same time, the judgment of the Trial Court, for the

offence under Section 324 IPC, as confirmed by the

High Court is confirmed.

13. This criminal appeal is allowed partly, so far

as appellant No.3 is concerned, to the extent

indicated above and the conviction recorded and

sentence imposed by the the High Court, stands

modified accordingly.

...................J. [ASHOK BHUSHAN]

...................J. [R.SUBHASH REDDY]

New Delhi;

NOVEMBER 20, 2020

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