IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.Rev.Pet.No. 3472 OF 2008() ------------------------------ CRA.716/2007 OF ADDL. DISTRICT & SESSIONS COURT(ADHOC-III), N.PARAVUR CC.573/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT, N.PARAVUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SHINODH, AGED 28 YEARS, S/O.KARUNAKARAN, VYDYASALAPARAMBIL HOUSE, MUPPATHADOM KARA, KADUNGALLUR VILLAGE, PARAVUR TALUK. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.273 OF 2007 OF BINANIPURAM POLICE STATION. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3472 OF 2008 ------------------------------------------ Dated this the 3rd day of November, 2008 O R D E R Petitioner is the accused in C.C.573 of 2007 on the file of Judicial First Class Magistrate, North Paravur. He was arrested on the night of 12.8.2007 from the house of PW1, where he was detained by PWs 1 and 2. PW4, Head Constable, who reached there on getting information through phone from PW1 arrested and took the petitioner and recorded Ext.P1 F.I. Statement, prepared Ext.P3 F.I.R and registered Crime 273 of 2007 for the offence under section 511 read with section 457 of Indian Penal Code. Prosecution case was that petitioner attempted to commit lurking house trespass on that night in the house of PW1. After completing investigation charge was laid. Petitioner pleaded not guilty. Prosecution examined five witnesses and marked five exhibits. PWs 1 to 3 were examined. When petitioner was questioned under section 313 of Cr.P.C., his case was that he was returning in his bicycle after viewing television through the road when there was an altercation with PW2, the son of PW1, and as PW1 is cousin of a police officer the case is foisted. CRRP 3472/08 2 Petitioner did not adduce any evidence. Learned Magistrate on evidence found him guilty. He was convicted and sentenced to simple imprisonment for nine months and a fine of Rs.2,000/- and in default simple imprisonment for two months for the offence under section 511 read with section 457 of IPC. Petitioner challenged the conviction and sentence before Additional Sessions Court, N. Paravur in Crl. Appeal 716 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence to simple imprisonment for six months and a fine of Rs.2,000/- and in default simple imprisonment for two months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner was heard. 3. The argument of the learned counsel is that Courts below did not properly appreciate the evidence and fact that no independent reliable witness was examined was not properly appreciated. It was contended that petitioner at the defence stage filed an application to recall PWs 1 to 3 and it was dismissed and opportunity was not granted to examine witness and the Courts below were not justified in convicting the CRRP 3472/08 3 petitioner. Learned counsel also argued that petitioner was in detention when the case was tried before learned Magistrate and the judgment itself shows that petitioner was in custody from 13.8.2007 onwards and he was granted the benefit of section 428 of Cr.P.C. and was released only after filing of the appeal and in such circumstances the sentence may be modified to the period he was in custody. 4. On hearing the learned counsel and going through the depositions of the witnesses examined, made available by the learned counsel, I cannot agree with the submission that the evidence was not properly appreciated or that there was misappreciation of evidence. The fact that petitioner was taken into custody by PW4 from the house of PWs 1 to 3 on the night of 12.8.2007 cannot be disputed. Evidence of PW1 establish that PW1 after detaining petitioner contacted the police and the police reached there and took revision petitioner into custody. PW2, the son of PW1corroborated the evidence of PW1 on that aspect. PW3 the wife of PW1 further corroborated the evidence of PWs 1 and 2. Ext.P3 F.I.R establish that on getting information PW4 reached the house of PW1 and recorded Ext.P1 F.I. Statement and thereafter along with the petitioner reached CRRP 3472/08 4 the police station and prepared Ext.P3 F.I.R and registered the case on the same night. In such circumstances the question is whether petitioner was detained by PWs 1 and 2 as claimed by them or was he detained due to the altercation with PW2 as claimed by the revision petitioner. 5. Though learned counsel vehemently argued that there was no justification for dismissing the application filed for recalling PWs 1 to 3 and copy of the application filed before learned Magistrate was made available, I find that no ground was made out to recall PWs 1 to 3. Though it was stated that petitioner wanted to further examine PWs 1to 3, on what point was not stated therein. In such circumstances there was no necessity to recall PWs 1 to 3. 6. Evidence of PWs 1 to 3 establish that petitioner tried to get into the house of PWs 1 to 3 on that night through the back door and hearing the sound PWs 1 and 2 rushed there and detained him. As rightly found by the Courts below, attempt of the petitioner is definitely to commit an offence provided under section 457 of IPC. In such circumstances conviction of the petitioner for the offence under section 511 read with section 457 of IPC is perfectly legal and warrants no interference. CRRP 3472/08 5 7. Then the only question is with regard to the sentence. When the learned counsel submitted that petitioner is not involved in any other offence, learned Public Prosecutor was directed to verify that fact. Learned Public Prosecutor submitted that petitioner is one of the accused in Crime 122 of 2004 registered by North Paravur police station for the offence under section 392 read with section 34 of IPC and he is also one of the accused in Crime 302 of 2004 of Cheranalloor police station registered under sections 395 and 120B of IPC. Learned counsel appearing for revision petitioner submitted that he could not get the details. Learned counsel then submitted that considering the fact that petitioner was in custody from 13.8.2007 till 5.11.2007, the date of conviction by learned Magistrate and thereafter till learned Sessions Judge granted bail, leniency may be shown. 8. Section 457 of Indian Penal Code provides for a sentence of imprisonment which may extend to five years in addition to fine. Section 511 of Indian Penal Code provides that whoever commits an offence punishable under the Code with imprisonment, shall be punishable for one-half of the sentence. In the nature and circumstances of the case, interest of justice CRRP 3472/08 6 will be met if the sentence is modified to three months in addition to a fine for Rs.3,000/- and in default simple imprisonment for two months. Revision is allowed in part. Conviction of the petitioner for the offence under section 511 read with section 457 of Indian Penal Code is confirmed. Sentence is modified to simple imprisonment for three months and a fine of Rs.3,000/- and in default simple imprisonment for two months. M. SASIDHARAN NAMBIAR, JUDGE Okb/-