IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 Crl.Rev.Pet.No. 155 of 2003 -------------------------------------------- CRA.87/1999 of SESSIONS COURT, MANJERI CC.24/1996 of JFCM-II, PERINTHALMANNA .................... REVN. PETITIONER/APPELLANT/ACCUSED: MOOSAKUTTY, S/O.MOHAMMED MOYIN, THAMBARA HOUSE, HOSPITAL KUNNU, MAMPAD, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT/STATE: THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, WANDOOR POLICE STATION, WANDOOR, MALAPPURAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI/I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.483/2003 IN CRRP 155/2003 DISMISSED 26.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.155 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced for the offences under Sections 448 and 427 of Indian Penal Code by Judicial First Class Magistrate-II, Perinthalmanna in C.C.No.24/1996. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A.No.87/1999. Learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence for the offence under Section 427 of Indian Penal Code, but modified the sentence to simple imprisonment for one month for the offence under Section 448 of Indian Penal Code. This revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that though there was a charge for an offence under CRRP 155/03 2 Section 153A(ii) of Indian Penal Code, learned Magistrate had already acquitted the petitioner of that offence and there is no evidence to prove the ingredients of the offence under Section 427 or Section 448 of Indian Penal Code. Argument is that PWs 1 and 3, even according to them, reached at the scene of occurrence only subsequently and PW2 is the person, who had allegedly seen the petitioner committing trespass into the Temple and the evidence of PW2 is insufficient to prove that petitioner committed trespass into the Temple. Learned counsel argued that evidence of PW1 establishes that Temple is situated at the top of a rock and visitors used to go there to see the Temple as well as the well where there will be full of water during every season and petitioner had innocently gone there without any evil intention and because he is a Muslim, the case has been registered against him and therefore, conviction is to be set aside. Learned counsel also argued that CRRP 155/03 3 even if conviction is to be confirmed considering the fact that petitioner is not involved in any incident till then or thereafter and the fact that the incident occurred in 1993, substantive sentence may be avoided. 4. Exhibit P1 F.I. Statement was furnished by PW1. The version of PW1 in Exhibit P1 F.I. Statement is that he is the Watchman and also an employee of the Temple and when he had gone to the Temple at about 5 p.m. on 26.6.1993, he found that the door of the Temple was closed from inside and a person was there inside. As per Exhibit P1 F.I. Statement, he did not identify the person and had gone to inform the officials of the Temple. On the way, he met PW3 and others. PW3, the Priest, was proceeding towards the Temple. PW1 informed the fact to PW3 and gone. Later, when he returned back, it was found that PW3 and others had taken the petitioner from inside the Temple. Evidence of PW3, corroborated by the evidence of PW1, establish that CRRP 155/03 4 PW2 had informed PW3 that somebody had entered the Temple and the intruder is inside the Temple. Evidence of PWs 2 and 3 establish that when they came to the Temple, petitioner was found inside the Temple. Evidence of PWs 2 and 3 further establish that petitioner was taken out of the Temple by PW3. Though learned counsel argued that there is no evidence to prove the trespass, as rightly found by the courts below, evidence of PWs 1 to 3 conclusively establish that petitioner committed trespass into the Temple and was inside the Temple without any authority. On the facts, petitioner cannot be an innocent visitor to the Temple, as claimed by the learned counsel. Petitioner had no business to be there inside the Temple. He is not a believer of the Temple. In fact, he belongs to another religion. He cannot be an innocent visitor as claimed. On appreciating the entire evidence, I find absolutely no reason to interfere with the conviction for the offences under Sections 427 and CRRP 155/03 5 448 of Indian Penal Code. 5. Then the only question is regarding the sentence. Section 427 of Indian Penal Code provides for a sentence of imprisonment up to two years or fine or both. Section 448 of Indian Penal Code provides for simple imprisonment for one year or fine, which may extend to Rupees One thousand or both. Learned Magistrate imposed a substantive sentence of simple imprisonment for three months for the offence under Section 448 of Indian Penal Code, which was reduced to simple imprisonment for one month by learned Sessions Judge, in addition to the fine of Rs.500/- and in default, simple imprisonment for one month. Sentence of simple imprisonment for one month and a fine of Rs.500/- and in default, simple imprisonment for fifteen days was awarded for the offence under Section 427 of Indian Penal Code and it was confirmed. The question is whether the substantive sentence is warranted at this distant point of time. CRRP 155/03 6 6. The incident was on 26.6.1993. An offence under Section 427 of Indian Penal code is punishable either with imprisonment for two years or fine or both. Substantive sentence is not mandatory. So also, the sentence provided for the offence under Section 448 of Indian Penal Code is imprisonment for one year or a fine of Rupees One thousand or both. Substantive sentence is not mandatory. Considering the fact that the incident was more than seventeen years back, it is not in the interest of justice to direct the petitioner to undergo the substantive sentence at this stage. Instead, interest of justice will be met if the sentence is modified to fine. Revision is allowed in part. Conviction for the offences under Sections 427 and 448 of Indian penal Code is confirmed. The sentence for the offences are modified as follows: Petitioner is sentenced to a fine of Rs.5,000/- and in default, simple imprisonment for one moth CRRP 155/03 7 for the offence under Section 448 of Indian Penal Code. He is sentenced to a fine of Rs.1,000/- and in default, simple imprisonment for fifteen days for the offence under Section 427 of Indian Penal Code. Judicial First Class Magistrate, Perinthalmanna is directed to execute the sentence. 26th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 155/03 8 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.155 of 2003 -------------------------- ORDER 26th May, 2010