IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 Crl.Rev.Pet.No. 4648 of 2007() ------------------------------ CRA.33/2006 of ADDL. SESSIONS COURT (ADHOC-I), KOZHIKODE CC.265/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I,KOYILANDY .................... REVN. PETITIONER: ACCUSED: ----------------------------------- KRISHNAN, S/O.MOOTHORAN, THEKKEDATH MEETHAL HOUSE, ULLIYEARU AMSOM, MUNDOTH. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT: COMPLAINANT: ---------------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/ 10 /2008 THE COURT ON 23/10/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 4648 OF 2007 =========================== Dated this the 23rd day of October,2008 ORDER Petitioner was concurrently convicted and sentenced for the offence under sections 452, 353, 294(b) of Indian Penal Code. Prosecution case is that on 23.12.2002 PW1 the Agricultural Officer was at her office. On that day several students had come to the office to get their certificates attested. It was not completed by 1-15 p.m. PW1 stopped attesting the certificates and disclosed her intention to return after taking meals. Some of the students, whose certificates are yet to be attested, wanted their certificates to be attested before PW1 left the office for meals. One of the students brought the petitioner an autorikshaw driver to the office. He directed PW1 to attest the certificate of a particular student before PW1 leaves the office. When PW1 disclosed that everything will be done after lunch, petitioner CRRP 4648/2007 2 scolded her using abusive language. Hearing it shop owners came there and took petitioner outside. It is alleged that petitioner thereby committed the offence under sections 452,353 and 294(b) of Indian Penal Code. PW1 lodged the complaint on the next day. Ext.P1 First Information Statement was prepared. Based on Ext.P1 a Crime was registered and after investigation charge was laid which was taken cognizance by Judicial First Class Magistrate,Koyilandy. Petitioner pleaded not guilty. Prosecution examined Pws.1 to 5 and marked Exts.P1 and P2. Learned Magistrate on the evidence found the petitioner guilty of the offences under sections 452 and 353 of Indian Penal Code but acquitted of the offence under section 294(b) of Indian Penal Code. Petitioner was sentenced to simple imprisonment for six months and a fine of Rs.2000/- for the offence under section 452 of IPC and simple imprisonment for three months and a fine of Rs.1000/- for the offence under section 353 of CRRP 4648/2007 3 IPC. Petitioner challenged the conviction and sentence before the Sessions Court, Kozhikode in Crl.Appeal No.33/2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that learned Magistrate and learned Sessions Judge misappreciated the evidence and appreciation of evidence was perverse. It was argued that there is material contradictions in the evidence of PW1 on the one hand that of PW2 on the other hand and based on that evidence petitioner was convicted. It was also argued that eventhough prosecution case is that there were several students at the time of the incident, none of them were examined. It was then argued that Investigating Officer was not examined and therefore petitioner could not be proved the contradictions and in such CRRP 4648/2007 4 circumstance, courts below were not justified in convicting the petitioner. It was argued that even if the case is accepted, an offence under section 452 of IPC is not attracted as to constitute an offence under section 452 IPC, there should be a house trespass as provided under section 442 of I.P.C and the incident took place inside an office room where public have right of entry and therefore there is no trespass and there is no evidence that PW1 was wrongly restrained by the petitioner and in such circumstance conviction for the offence under section 452 of Indian Penal Code is not sustainable. Learned counsel argued that on the evidence on record conviction for the offence under section 353 of Indian Penal Code also is not sustainable and in any case sentence awarded is excessive. 4. Though learned counsel vehemently argued that there is material contradictions in the evidence of Pw1 and that of Pws. 2 and 3, on going through the judgments of the courts below and going CRRP 4648/2007 5 through the depositions, I do not find any material contradictions to disbelieve the prosecution case. In any case appreciation of evidence by the courts below is not perverse. Even if the evidence of Pws. 1 to 3 is reappreciated, I do not find that a different view is to be taken. In such cir- cumstance, on the factual finding that petitioner came to the office of PW1 on that afternoon when PW1 was about to return to her house to take lunch and petitioner wanted PW1 to attest one more certificate before leaving and when PW1 was not prepared and the files from the table were thrown she was scolded as proved by the evidence of Pws. 1 to 3 and found by the learned Magistrate and learned Sessions Judge is in accordance with the evidence on record. 5. Then the question is what is the offence made out? As rightly pointed out by the learned counsel appearing for petitioner, ingredients of an offence under section 452 of Indian Penal Code is not made out by the prosecution. Section 452 CRRP 4648/2007 6 provides that whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished as provided therein. Section 442 of Indian Penal Code defines house trespass as whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. The office of PW1 is a public office where public has a right of entry. Evidence does not establish that PW1 was wrongly restrained. At best it could be said that petitioner wanted PW1 to leave the office for taking lunch only after attesting the document of a particular student for which PW1 was not prepared. In such circumstance, conviction of the petitioner for the offence under section 452 of Indian Penal Code is not sustainable. But ingredients of an offence under CRRP 4648/2007 7 section 353 of Indian Penal Code is established. Therefore conviction of the petitioner for the offence under section 353 is legal. 6. Then the only question is whether the sentence awarded by the learned Magistrate as confirmed by the Sessions Judge is reasonable. 7. Section 353 of Indian Penal Code provides for a sentence of imprisonment for a term which may extent to two years or with fine or with both. Imprisonment is not mandatory. Considering the nature of the case and the fact that the incident was in 2002 and that too arose on account of the insistence of the petitioner to get a certificate attested by PW1, before she left the office, interest of justice will be met if the sentence is modified to fine. Revision is allowed in part. Conviction of the petitioner for the offence under section 452 of Indian Penal Code is set aside and petitioner is acquitted of the said offence. Conviction of the petitioner for the offence under section 353 of CRRP 4648/2007 8 Indian Penal Code is confirmed. Sentence is modified to a fine of Rs.3000/- and in default simple imprisonment for one month. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006