IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 3344 of 2008() ------------------------------ CRA.128/2007 of I ADDL.SESSIONS COURT, THODUPUZHA CC.395/2005 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... REVISION PETITIONER: APPELLANT/ACCUSED:- ------------------------------------------------------------------------ SURESH @ SURA, S/O GOPALAN, MUNDADI HOUSE, VEDIKUZHY, PUTHUVALBHAGOM, KOLAHALAMEDU KARA, VAGAMON VILLAGE. BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT:RESPONDENT/STATE & COMPLAINANT:- ------------------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3344 OF 2008 =========================== Dated this the 14th day of October,2008 ORDER Petitioner was convicted and sentenced for the offence under sections 341 and 506(i) of Indian Penal Code by Judicial First Class Magistrate-I, Peermade in C.C.395/2005. Petitioner challenged the conviction and sentence before the Sessions Court, Thodupuzha in Crl.Appeal No.128/2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence for the offence under section 341 IPC but acquitted the petitioner for the offence under section 506(i) of IPC. The sentence awarded for the offence under section 341 of IPC is simple imprisonment for 15 days. Petitioner is challenging the conviction and sentence in this revision. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel CRRP3344/2008 2 appearing for petitioner is that there is no evidence to prove that the place where PW1 was allegedly restrained is a public way as claimed by the prosecution or he has a right to pass through that way and therefore no offence under section 341 IPC is committed and the conviction is not sustainable. It was also argued that in any case the sentence awarded is excessive and a substantive sentence is not mandatory for an offence under section 341 and petitioner was not involved in any other case earlier and therefore a lenient view is to be taken. 4. The prosecution case is that on 20.8.2005 at about 12.30 p.m PW1 was returning from his property at Vedikuzhy Puthuval through the property of Antony. Petitioner wrongly restrained PW1 stating that he will not allow PW1 to go through the property of Achuthan. Police after investigation laid the charge. Learned Magistrate on the evidence of Pws. 1 to 5 and Exts.P1 to P3 found the petitioner guilty. He was convicted for CRRP3344/2008 3 the offence under section 341 IPC. The argument of the learned counsel is that courts below did not properly appreciate the evidence. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. It cannot be said that appreciation of evidence was perverse. Evidence of PW1 was corroborated by PW2. There is no material contradiction in their evidence or the version of PW1 from the box and in Ext.P1 First Information Statement. Eventhough learned counsel vehemently argued that there is no evidence to prove that petitioner has a right to pass through the property of Achuthan, courts below on the evidence found that the pathway was being used by the public. Petitioner has no right to cause any obstruction to the use of the way or to restrain PW1. In such circumstance, I do not find any reason to interfere with the conviction of the petitioner for the offence under section 341 IPC. 5. Then the question is only with regard to the sentence. As rightly pointed out by learned CRRP3344/2008 4 counsel appearing for petitioner there is no allegation that petitioner was involved in any other case.. In such circumstance, interest of justice will be met if the sentence is reduced to the maximum fine provided under section 341 IPC and a substantive sentence is not mandatory on the facts and circumstances of the case. Revision is partly allowed. Conviction for the offence under section 341 of Indian Penal Code is confirmed. Petitioner is sentenced to a fine of Rs.500/- and in default simple imprisonment for 15 days. Judicial First Class Magistrate, Peermade is directed to execute the sentence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006