IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.REV.PET.NO. 1706 OF 2009() ----------------------------------------------- CRA.338/2008 OF SPL. COURT (NDPS ACT CASES), THODUPUZHA AGAINST C.C. NO.443 OF 2007, JUDICIAL FIRST CLASS MAGISTRATE, DEVIKULAM ...................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------------- MURUKAN, S/O.CHUDALAMUTHU, C.NO.6355, CENTRAL PRISON, KANNUR. BY ADV. SRI.B.PREMOD RESPONDENT(S): COMPLAINANT: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPCTOR OF POLICE, MARAYOOR. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1706 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of July, 2009 O R D E R -------------- Sub Inspector of Police, Marayur charge-sheeted petitioner in the court of learned Judicial First Class Magistrate, Devikulam for offences punishable under Sections 452 and 392 of the Indian Penal Code (for short, “the IPC”). As per final report, case is that on 9.2.2007 at about 4.00 p.m. petitioner trespassed into the house of P.W.1 and committed robbery by forcibly removing the gold chain worn by her. It is also stated that petitioner attempted to outrage her modesty in the course of the incident. Prosecution examined P.Ws.1 to 8, marked Exhibits P1 to P6 and proved M.Os.1 and 2. Petitioner was questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) on 12.6.2008. Learned magistrate then thought that evidence disclosed offence punishable under Sec.354 of the IPC and charge was altered accordingly. Charge was read over and explained to the petitioner who pleaded not guilty. His plea was recorded and case was posted on 13.6.2008 for trial and hearing. On 13.6.2008 case was posted on 17.6.2008. That day learned magistrate heard both sides and pronounced judgment on 19.6.2008 convicting petitioner for offences punishable under Secs.354, 452, CRL. R.P. No.1706 of 2009 -: 2 :- 511 and 392 of the IPC. He was sentenced to undergo imprisonment for various periods. Learned magistrate directed that sentences shall run consecutively. Appellate court confirmed that conviction and sentence. Petitioner is now undergoing imprisonment and has preferred this revision. I heard counsel appointed on State brief and Public Prosecutor. 2. Learned counsel contended that evidence let in by prosecution is not sufficient to warrant conviction and that learned magistrate has committed illegality in not granting opportunity to the petitioner to recall witnesses already examined after alteration of charge incorporating Sec.354 of the IPC. 3. I have gone through the records. It is after the prosecution evidence was closed on 12.6.2008 that charge was altered incorporating Sec.354 of the IPC as well. Thereafter case was posted on 13.6.2008 for trial and hearing. Under Sec.217 of the Code when charge is altered or added after commencement of the trial, prosecutor and accused shall be allowed to recall or re-summon and examine with reference to such alteration or addition any witness who may have been examined unless the Court for reasons to be recorded in writing considers that the prosecutor or the accused as the case CRL. R.P. No.1706 of 2009 -: 3 :- may be desires to recall or reexamine such witness for the purpose of vexation or delay or for defeating the ends of justice. It is also stated that court may allow the prosecutor or accused to call any further witness whom the Court may think fit to be material. What Sec.217 of the Code provided is that the prosecutor or the accused as the case may be “shall be allowed” to recall witness. In this case after charge was altered case was posted for 'trial and hearing'. Necessarily the court was giving the prosecutor and accused an opportunity to recall or summon and examine any witness already examined or any other witness whose evidence is relevant and material. That means opportunity has been given to both sides to exercise their right under Sec.217 of the Code. If the petitioner has not exercised the right of recalling the witnesses, it cannot be said that there was no compliance with Sec.217 of the Code. Therefore that contention of petitioner cannot be sustained. 4. Coming to the alleged incident, P.W.1 has given evidence. On the date of incident at about 4.00 p.m. petitioner came to her house enquiring about her husband and she told petitioner that her husband is not there. Then petitioner asked P.W.1 when her husband would come back to the house. He loitered around and when P.W.1 CRL. R.P. No.1706 of 2009 -: 4 :- went to the kitchen he followed and caught her. According to P.W.1, under threat of knife petitioner got one of her gold chains and made an attempt to snatch the gold studs she was wearing. There was a scuffle between her and petitioner in the room in the course of which the clothes worn by P.W.1 were torn (identified as M.Os.1 and 2) and she suffered injury. She raised hue and cry. P.W.1 rushed out of the house to save herself from the petitioner and met P.W.2 who gave some clothes to her for wearing. Petitioner is stated to have escaped from the scene. P.W.1 gave first information on 10.2.2.007 at 9.00 a.m. Exhibit P6 is the first information statement. Exhibit P2 is the mahazar for scene of occurrence prepared by the Investigation Officer. P.W.6 examined P.W.1 on 10.2.2007 at 1.10. p.m. and issued Ext.P4 certifying that P.W.1 suffered abrasion, contusion and nail marks. She came with the history that she was assaulted. P.W.6 opined that the injury could be caused as alleged. P.W.2 stated that P.W.1 was running out her of house without proper dress and she gave clothes to P.W.1. 5. So far as charge under Secs.452 and 354 of the IPC is concerned there is evidence of P.W.1 to that effect. That, P.W.1 was found running out of her house with badly damaged cloths and that CRL. R.P. No.1706 of 2009 -: 5 :- P.W.2 had to supply her with clothes are proved through the evidence of P.Ws.1 and 2. M.Os.1 and 2 are the clothes which P.W.1 was wearing at the relevant time. Those clothes were seized by the police as per Ext.P3 on its production to the police. Exhibit P3 states that clothes were in torn condition. Thus there is sufficient evidence to show that petitioner trespassed into the house of P.W.1 on the relevant day and time and outraged her modesty. There is no reason to interfere with the conviction of petitioner for offences under Secs.452 and 354 of the IPC. 6. So far as offence under Sec.392 is concerned P.W.1 stated that one of the gold chains worn by her was taken by the petitioner on knife point and he has attempted to snatch away her ear studs. According to P.W.1, those studs and another chain were traced in her house later. But the same were not produced before the police. So far as the gold chain allegedly taken by petitioner is concerned learned magistrate was not inclined to accept that version as is evident from the fact that petitioner was convicted only under Secs.511 and 392 of the IPC. I stated that ornaments which were broken in the course of incident and which are stated to have been traced from the house were not produced before the police and there CRL. R.P. No.1706 of 2009 -: 6 :- is no evidence in that line. Moreover, it has come in evidence that petitioner is a neighbour of P.W.1. It is quite unlikely that at about 4.00 p.m. petitioner would have attempted to commit robbery of gold chain which P.W.1 was wearing. Hence conviction of petitioner for offences under Sec. 511 of Sec.392 of the IPC cannot stand. 7. So far as offences under Secs.452 and 354 of the IPC are concerned, considering the nature of the offence committed by the petitioner I am satisfied that sentence awarded is reasonable and required no interference. However, it is sufficient that substantive sentence of imprisonment awarded to the petitioner will run concurrently. In the result, revision petition is allowed in part to the following extent: (i) Conviction and sentence of petitioner for offences punishable under Section 511 of Section 392 of the IPC is set aside. He is acquitted of that charge. (ii) Revision petition to the extent it concerned conviction and sentence of petitioner for offences punishable under CRL. R.P. No.1706 of 2009 -: 7 :- Secs.452 and 354 of the IPC is dismissed. (iii) It is directed that substantive sentences awarded for the offence under Secs.452 and 354 of the IPC will run concurrently. Learned magistrate shall issue modified warrant to the Superintendent of the Prison concerned. THOMAS P.JOSEPH, JUDGE. vsv