IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3257 OF 2008() ------------------------------ CRA.69/2008 of VI ADDL.SESSIONS COURT, ERNAKULAM ST.2282/2003 of JUDL. FIRST CLASS MAGISTRATE COURT,KOTHAMANGALAM .................... REVN. PETITIONERS/ APPELLANTS/ACCUSED: --------------------------------------- 1. GEORGE, AGED 54YEARS, S/O.VARKEY, KOCHUPURACKAL HOUSE, OONNUKAL BHAGOM, PIRAKUNNAM KARA, KUTTAMANGALAM VILLAGE. 2. SIBY, AGED 35 YEARS, S/O.ANTHONY, MUTHIRAMATTOM HOUSE, OONNUKAL BHAGOM, PIRKUNNAM KARA, KUTTAMANGALAM VILLAGE. 3. BIJU, AGED 33 YEARS, S/O.VIJAYAN, CHARAMKULANGARA VEEDU, PIRKUNNAM KARA, KUTTAMANGALAM VILLAGE. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT/RESPONDENT/STATE & COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, OONNUKAL POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3257 OF 2008 ------------------------------------------ Dated this the 15th day of October, 2008 O R D E R Petitioners are the accused in S.T.2282 of 2003 on the file of Judicial First Class Magistrate, Kothamangalam. Prosecution case is that on the early morning of 6.9.2003 at about 4 a.m., in furtherance of their common intention, petitioners trespassed into the property in the ownership and possession of PW1, which lies on the south of Onnukal-Avolichal road and demolished the kayyala on the west and thereby caused a loss of Rs.15,000/-. On the information received by PW1, who was not in his house at that time, Ext.P1 F.I. Statement was lodged, based on which Ext.P3 F.I.R. was prepared and crime was registered. After investigation, charge was framed for the offence under sections 447 and 247 read with section 34 of Indian Penal Code. Petitioners pleaded no guilty. As second accused was absconding, case as against him was split up and only the other accused were tried. 2. The prosecution examined PWs 1 to 5 and marked Ext.P1 to P4. On the side of the defence Dws 1 to 3 were CRRP 3257/08 2 examined and Exts.D1 and D2 were marked. Learned Magistrate on the evidence found that petitioners in furtherance of their common intention demolished the western kayyala of the residential property of PW1 after trespass and thereby committed offence under sections 447 and 427 read with section 34 of Indian Penal Code. Learned Magistrate sentenced each of them to rigorous imprisonment for six months for the offence under section 427 and rigorous imprisonment for three months for the offence under section 447. They challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.Appeal 69 of 2008. Learned Sessions Judge on reappreciation of evidence confirmed the conviction, but sentence was modified to simple imprisonment for one month each and a fine of Rs.2,000/- each for offence under section 427 and simple imprisonment for two weeks and a fine of Rs.1,000/- for offence under section 447 of Indian Penal Code. The conviction and sentence are challenged in this revision petition filed under section 397 read with section 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioners was heard. 4. The argument of the learned counsel is that PW1 is CRRP 3257/08 3 not an eyewitness and the evidence of PWs 2 and 3 should not have been relied upon by the Courts below. It was argued that PWs 2 and 3 did not speak about the independent overtact of each of the accused and in such circumstances it is clear that they had not witnessed the incident and therefore based on their evidence Courts below were not justified in convicting the petitioners. It was also argued that the dispute is with regard to a public way and the disputed property does not belong to PW1 and in such circumstances the conviction is not sustainable. Learned counsel finally argued that in any case as the offences are also punishable with fine and substantive sentence is not mandatory, in the circumstances of the case, considering the fact that the dispute is of a civil dispute sentence may be modified. 5. On hearing the learned counsel and going through the judgments of the Courts below, I cannot agree with the argument of the learned counsel that appreciation of evidence was perverse. True. PW1who claimed to be the owner of the disputed property is not an eyewitness. Even in Ext.P1 F.I. Statement it was stated by PW1 that he was not in station and he lodged the F.I.Statement based on the information collected by CRRP 3257/08 4 him, as it was found on his return that the western kayyala of his property was demolished. But PWs 2 and 3 the neighbours, they deposed that they had witnessed the incident. Though PWs 2 and 3 did not depose the overtacts committed by each of the accused, they had given evidence that they had seen the incident and petitioners were participants of the demolition of the kayyala. Though learned counsel vehemently argued that their evidence should not have been accepted, on going through the depositions made available, I cannot accept the arguments. Learned Magistrate accepted the evidence. Learned Sessions Judge on reappreciation of evidence confirmed it. I find no reason to interfere with that factual finding. It is not necessary to decide the ownership of the property in this proceedings. As rightly found by the Courts below, evidence of DW3, the President of the Panchayat, who was examined on behalf of the defence establish the existence of a kayyala on the western boundary of the property. Ext.P2 scene mahazar corroborates the evidence of PWs 2 and 3 that the said kayyala was demolished. Evidence also establish that petitioners were present and participated in the action of demolition. In such circumstances conviction of the petitioners for the offence under CRRP 3257/08 5 section 427 and 447 read with section 34 of Indian Penal Code is perfectly legal and correct and warrants no interference. 6. Then the question is only with regard to the sentence. Section 427 of Indian Penal Code provides for a sentence of imprisonment which may extend to two years or fine or both. Similarly an offence under section 447 of Indian Penal Code provides for a sentence of imprisonment which may extend to three months or fine which may extend to Rs.500/- or both. Sentence of imprisonment is not mandatory. Considering the fact that the dispute was essentially one of civil nature, interest of justice will be met if the sentence is modified to fine with default sentence. The sentence awarded for the offence under section 427 is modified to a fine of Rs.3,000/- each and in default simple imprisonment for one month each. So also the sentence for the offence under section 447 is modified to a fine of Rs.500/- each and in default, simple imprisonment for ten days. Revision is partly allowed. Conviction of the petitioners for the offence under sections 427 and 447 read with 34 of Indian Penal Code is confirmed. Petitioners are sentenced to a fine of Rs.3,000/- each and in default simple imprisonment for one month each for the offence under section 427 read with section CRRP 3257/08 6 34 of IPC . Petitioners are also sentenced to a fine of Rs.500/- each and in default simple imprisonment for ten days for the offence under section 447 read with section 34 of IPC. On realisation of the fine, Rs.8,000/- is to be paid to PW1 as compensation under section 357(1) of Cr.P.C. M. SASIDHARAN NAMBIAR, JUDGE Okb/-