IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 428 of 2002 --------------------------------------------- CRA.14/1997 of ADDL. SESSIONS COURT, KOTTAYAM CC.356/1993 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED 1 TO 4: 1. MADHU, S/O.MADHAVAN BHATTATHIRI, KANMANI BHAVAN, THALAYOLAPARAMPU KARA,VADAYAR VILLAGE. 2. SUNIL, S/O.MADHU, KANMANI BHAVAN, DO. DO. 3. ANIL, S/O.MADHU, KANMANI BHAVAN, DO. DO. 4. PRAVEEN @ KANNAN, KANMANI BHAVAN, DO. DO. BY SR. ADV. SRI.GOVIND K.BHARATHAN RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.428 of 2002 -------------------------- ORDER First petitioner is the father and the other petitioners his children. They were convicted and sentenced for the offence under Section 3(1) of Prevention of Damage to Public Property Act (hereinafter referred to as 'the PDPP Act') and Sections 447 and 427 of Indian Penal Code by Judicial First Class Magistrate, Vaikom in C.C.No. 356 of 1993. The prosecution case was that on 9.11.1991 at about 11.30 a.m, in furtherance of the common intention, petitioners trespassed into the property belonging to the Government and under the control of the Medical Officer, Talayolaparamba Public Health Centre comprised in Sy.No.210/3 of Vadayar Village, demolished the eastern compound wall and formed a road on the south-east portion of the compound and thereby caused mischief to the extent of Rs.3,000/- to the Government property and CRRP 428/02 2 committed the offences. 2. PW1 the Chief Medical Officer, lodged Ext.P1 complaint before the Sub Inspector of Police on 19.12.1991 and Crime 699/91 of Vaikom police station was registered under Ext.P3 FIR. PW6, the Investigating Officer, prepared Ext.P4 scene mahazar and obtained Ext.P2 report from PW2, the Village Officer. Though the case was registered as against the first petitioner and others, by Ext.P6 report names of the other accused were also incorporated. After completing the investigation, charge was laid, which was taken cognizance by the learned Magistrate. Petitioners pleaded not guilty. The prosecution examined six witnesses and marked six exhibits. Petitioners did not adduce any evidence. Learned Magistrate on the evidence of PWs 1, 2 and 6, though the other witnesses turned hostile, convicted the petitioners and sentenced them to rigorous imprisonment for three years for the offence under Section 3(1) of the PDPP Act and CRRP 428/02 3 for one month for the offence under Section 447. No separate sentence was passed for the offence under Section 427 of Indian Penal Code. Though petitioners challenged the conviction and sentence before the learned Sessions Court, Kottayam in Crl.A.No.14/1997, learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Though PWs 3, 4 and 5 were examined to corroborate the evidence of PW1, they turned hostile. PW2 the Village Officer who submitted Ext.P2 report on the request of the Investigating Officer has no personal knowledge with regard to the incident that took place on 9.11.1991. Hence the only evidence is that of PW1 to prove the incident. The question is how far the evidence of CRRP 428/02 4 PW1 is credible and reliable. 5. Though the incident alleged to have taken place on 9.11.1991, Ext.P1 complaint was filed only on 19.12.1991. In Ext.P1, PW1 has alleged that he witnessed the incident apart from the staff of the hospital. PW1 had given only the name of the first petitioner and described the others as his “son and others”. Even though petitioners 2 to 4 are the sons of the first petitioner, he did not specify the name of the son, to identify the person. The names of petitioners 2 to 4 were incorporated based on Ext.P6 report submitted on 20.12.1991. When Ext.P1 complaint was filed more than one month after the incident, if PW1 had known petitioners 2 to 4 at that time, in the ordinary course he would have definitely stated about the names of all the petitioners and would not have alleged that the offence was committed by the first petitioner, his son and others. Others mentioned therein cannot be the other sons of the first petitioner as otherwise CRRP 428/02 5 it would have been stated that the petitioner and his sons. Even when PW1 was examined, he has not specifically identified any of petitioners 2 to 4, as the persons who was named as the son of the first petitioner in Ext.P1 FI statement. If that be so, based on the evidence of PW1, it cannot be safely held that petitioners 2 to 4 committed the offences. Hence, conviction of petitioners 2 to 4 cannot be sustained. 7. But, the case as against the first petitioner stands on a different footing. If the evidence of PW1 is credible and reliable as against the first petitioner, the conviction warrants no interference. The fact that the compound wall of the hospital was demolished and a new road was cut opened through the hospital compound is proved by the evidence of PW1. It is also corroborated by Exhibit P2 report submitted by PW2, the Village Officer, as well as the evidence of PW6, the Investigating Officer, who inspected the property CRRP 428/02 6 and prepared Exhibit P4 scene mahazar on 20.12.1991. I have scanned the evidence of PW1 and find no reason to disbelieve his evidence, which was accepted by the trial court as well as by the appellate court. Evidence of PW1 establishes that first petitioner was one among the persons who cut opened a road through the hospital compound after demolishing a portion of the eastern compound wall. In such circumstances, conviction of the first petitioner for the offences under Sections 447 and 427 of Indian Penal Code and Section 3(1) of PDPP Act is perfectly legal and warrants no interference. 8. Then the only question is regarding the sentence. Section 3(1) of PDPP Act provides a sentence of imprisonment for a term, which may extend to five years and fine. Though a minimum sentence of six months is provided for an offence under Section 3(2), no minimum sentence is provided for the offence under Section 3(1) of PDPP Act. CRRP 428/02 7 Learned Magistrate awarded rigorous imprisonment for three months for the offence under Section 3(1) of PDPP Act. The incident was in 1991. First petitioner was then aged about sixty years. It was about two decades back. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to imprisonment till rising of court and a fine of Rs.5,000/- and in default, simple imprisonment for one month for the offence under Section 3(1) of PDPP Act. Learned Magistrate awarded simple imprisonment for one month for the offence under Section 447 of Indian Penal Code. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to the maximum fine provided for an offence under Section 447 of Indian Penal Code. Learned Magistrate has not awarded separate sentence for the offence under Section 427 of Indian Penal Code, which was not challenged by the CRRP 428/02 8 State. In such circumstances, in a revision, filed by the accused, no sentence could be awarded for the offence under Section 427 of Indian Penal Code, when no sentence was awarded by the trial court. Revision is allowed in part. Conviction of petitioners 2 to 4/accused 2 to 4 in C.C.No. 356/1993, as confirmed by Additional Sessions Judge in Crl.A.No.14/1997 is set aside. They are found not guilty of the offences. They are acquitted. Conviction of the first petitioner for the offences under Sections 447 and 427 of Indian Penal Code and Section 3(1) of PDPP Act is confirmed. Sentence is modified. In supersession of the sentence awarded by the Magistrate and confirmed by the Additional Sessions Judge, first petitioner/first accused is sentenced to imprisonment till rising of court and a fine of Rs.5,000/- (Rupees Five thousand only) and in default, simple imprisonment for one month for the offence under Section 3(1) of PDPP Act. He is also sentenced to a fine of Rs.500/-(Rupees Five CRRP 428/02 9 hundred only) and in default, simple imprisonment for fifteen days for the offence under Section 447 of Indian Penal Code. First petitioner is directed to appear before Judicial First Class Magistrate, Vaikom on 07.09.2010. The Magistrate is directed to execute the sentence. 11th August, 2010 (M.Sasidharan Nambiar, Judge) tkv/vps CRRP 428/02 10 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.428 of 2002 -------------------------- ORDER 11th August, 2010