IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 Crl.Rev.Pet.No. 3986 of 2008() ------------------------------ CRA.430/2003 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY CC.246/2001 of CHIEF JUDITIAL MAGISTRATE COURT, THALASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- K.SUDHAKARAN, S/O.RAMAKRISHNAN, KOTTUMMAL HOUSE, MANIYOOR AMSOM/DESOM, CHEKKIKULAM, KANNUR DISTRICT. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): RESPONDENT/STATE ------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3986 OF 2008 ------------------------------------------ Dated 16th January 2009 O R D E R Revision petitioner is the accused in C.C.246/2001 on the file of Chief Judicial Magistrate, Thalassery. Revision petitioner was convicted and sentenced for the offences under Sections 451 and 354 of Indian Penal Code. Though he challenged the conviction before Sessions court, Thalassery in Crl.A.430/2003, conviction and sentence were confirmed and appeal was dismissed. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel submitted that though there is no conclusive evidence to prove the offences for which revision petitioner was convicted, in view of the concurrent conviction and the evidence on record, revision petitioner is not seriously challenging the conviction. But considering the fact that incident was in 2001, at this distant point of time revision CRRP 3986/08 2 petitioner may not be sent to prison, especially when for the offence under Section 354 learned Magistrate awarded a fine of Rs.5,000/- with a direction to pay Rs.3,000/- as compensation to PW1 and as per the prosecution case, offence under Section 451 of India Penal Code was committed for the purpose of committing offence under Section 354 of Indian Penal Code and in such circumstances, substantive sentence may modified. 4. On going through the judgments of the courts below, I find no reason to interfere with the conviction. Evidence of PW1 corroborated by that of her husband PW2 establish that on the night of 4/8/2001, PW1 the wife was sleeping inside the shop room and PW2 her husband was sleeping in the varandha and revision petitioner their neighbour during mid night trespassed into the shop room and touched the body of PW1 with an evil intention and when PW1 got up and raised hue and cry he ran away. Though PW2 tried to catch hold of revision petitioner, attempt was futile. From the evidence, learned Magistrate and learned Sessions Judge found that evidence of Pws.1 and 2 is credible and reliable. If the evidence of PW1 is accepted, there is evidence to prove that revision CRRP 3986/08 3 petitioner trespassed into the shop room where PW1 was sleeping and touched her body with the intention of insulting the modesty of PW1. As the evidence is credible and reliable conviction of revision petitioner for the offence under Sections 451 and 354 of Indian Penal Code is perfectly legal. 5. Learned Magistrate awarded a substantive sentence of simple imprisonment for three months for the offence under Section 451 of Indian Penal Code and fine of Rs.5,000/- for the offence under Section 354 of Indian Penal Code. Argument of the learned counsel is that considering the fact that incident was in 2001 and the case is that revision petitioner committed trespass into the room where PW1 was sleeping on the night, with the intention of insulting her modesty and the sentence awarded for the offence under Section 354 was only fine and compensation was also ordered the substantive sentence may be avoided. Considering the entire facts and circumstances of the case, interest of justice will be met, if the substantive sentence for the offence under Section 451 of Indian Penal Code is modified to imprisonment till rising of court and fine of Rs.5,000/- and in default simple imprisonment for CRRP 3986/08 4 two months. On realisation of fine Rs.3,000/- to be paid to PW1 as compensation. Revision is allowed in part. Conviction of revision petitioner for the offence under Sections 451 and 354 of Indian Penal Code is confirmed. Sentence for the offence under Section 354 as well as direction to pay compensation out of the fine realised is confirmed. Sentence for the offence under Section 451 of Indian Penal Code is modified to imprisonment till rising of court and fine of Rs.5,000/- and in default simple imprisonment for two months. On realisation of the said fine, Rs.3,000/- to be paid to PW1 as compensation. Revision petitioner is directed to appear before the learned Chief Judicial Magistrate, Thalssery on 25/3/2009. M.SASIDHARAN NAMBIAR, JUDGE. uj.