IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 2080 of 2005(D) ------------------------------ CRL.APPEAL .72/2000 of I ADDL. SESSIONS COURT, KOLLAM CC.249/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ GEORGE, S/O. JOHN, KOYIKKALAZHATHU VEEDU, KULANGARABHAGOM MURI, CHAVARA. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENTS/RESPONDENT/STATE & COMPLAINANT: -------------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. P.P. THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ------------------------------ Crl. R.P. No. 2080 of 2005 ------------------------------ Dated this the 17th day of September, 2008 ORDER This Revision Petition is preferred against the judgment of the First Addl. Sessions Court, Kollam in Crl. Appeal No.72 of 2000. The appellant was charged for having committed an offence punishable under Section 353 of the Indian Penal Code. The accusation against the accused appellant is to the effect that while PW1 to PW3 were on duty in the factory premises, in connection with the annual club day celebrations of the factory. It is alleged that the accused made provocative remarks and thereafter attempted to push PW1 and thereby prevented him from doing his work, so as to attract the offence under Section 353 of the Indian Penal Code. In the trial court, PW1 to PW7 were examined and Exhibits P1 to P3 were marked. The trial court convicted the accused and sentenced him to undergo simple imprisonment for three months. It is against that decision, the accused preferred this appeal before the appellate court, which also ended in dismissal. The present Revision Petition is against that judgment. The Crl. R.P. No. 2080 / 2005 2 learned counsel for the Revision Petitioner would argue that the ingredients necessary to constitute the offence under Section 353 is absent and there is no evidence at all to show that they were in the premises, working as police officials for discharging their duty. The learned counsel also invited my attention to the decision of this court in Mohammed Kutty Vs. State of Kerala, reported in [2004(1) K.L.T. 331], wherein this court held that to attract the section, it must be proved that person who has assaulted was in execution of his duty as such as a public Servant. There cannot be any quarrel about those proposition. I perused the offence of PW1 to PW3 in this case. PW1 is a police constable and he had deposed before the court that he along with PW2 and PW3 are working in the I.R.E factory premises, on duty in connection with a function in the said premises. He was able to see that the present accused was creating problems, after getting intoxicated and therefore, he was requested into go away from the premises. The accused abused him and hold on his uniform shirt. He also interfered with the functions of PW2 and PW3. In the cross examination, there is no suggestion to the effect that he was not Crl. R.P. No. 2080 / 2005 3 working in the premises as part of his duty. Whereas the question put to him is otherwise and therefore, on this length of time, the contention that there was not evidence to prove that they were exercising the duty at the time, on the date of incident, cannot be accepted. So also all the evidence of PW2 and PW7. The factum of interfering with the duty is also proved by the evidence of PW2 and PW3. Therefore, I cannot find any fault with the court below for having accepted the evidence of PW1 to PW3, which I find are indirectly reliable and non-reliable probability. Now the next question is regarding the sentence. The incident has taken place in the year 1994 and I have informed that the Revision petitioner is already aged 65 years and therefore, the learned counsel would submit that some leniency may be shown. On a perusal of the entire materials available would show that this man probably on account of intoxicated spirit, attempted to make quarrel, which has resulted in the registration of the case, for which he had undergone corporately on trail more than 14 years. At the same time, it also to be remembered that a person doing public duty, that too a police Crl. R.P. No. 2080 / 2005 4 constable, cannot be disturbed from exercising his functions. In order to meet the needs of justice, I feel that the sentence can be modified into one of fine by altering it from sentence of imprisonment. Therefore, the Criminal Revision petition is disposed of as follows; 1. the conviction under Section 353 of the Indian Penal Code is upheld. 2. the sentence of three months simple imprisonment is modified and the revision petitioner is directed to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for a period of one month. The Revision petition is disposed of accordingly. M.N. KRISHNAN, JUDGE scm