IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH DAY OF NOVEMBER 2011/18TH KARTHIKA 1933 Crl.Rev.Pet.No. 1852 of 2004 ( ) --------------------------------- AGAINST THE JUDGMENT IN CRA 118/1998 DATED 25.3.2004 of ADDITIONAL SESSIONS JUDGE, TRIVANDRUM CC 585/1996 of J.M.F.C.,VARKALA DATED 02-03-1998 REVISION PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------------------- BABURAJ, S/O.APPU, ANDIKONAM PONNAMPACHA, LAKSHAM VEEDU NO. 301 THOTTAKKADU DESOM, KARAVARAM VILLAGE. BY ADVS.SRI.M.DINESH SRI.BASANT BALAJI RESPONDENT(S)/RESPONDENT/COMPALINANT: ----------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.KOCHUMOL KODUVALLI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- Crl. R.P.No. 1852 Of 2004 -------------------------------------------- Dated this the 9th day of November, 2011 ORDER This criminal revision petition is directed against the judgment in Crl.Appeal No.118 of 1998 dated 22.3.2004 on the file of the Additional Sessions Judge, Thiruvananthapuram confirming the conviction and sentence to undergo simple imprisonment for six months under section 452 of the Indian Penal Code and to pay a fine of Rs.1000/- under section 323 IPC and in default, to undergo simple imprisonment for one month imposed by the First Class Magistrate Court, Varkala in C.C.585 of 1996. The prosecution case is as follows:- 2. The petitioner/accused and PW1 are neighbours. The goats belonging to the petitioner/accused used to enter into the premises of PW1 and caused damages to the plants in the courtyard. In connection with one such incident, PW1 warned the wife of the petitioner/accused. On account of the animosity which the petitioner/accused entertained in connection with the same, on Crl.R.P.1852/04 2 9.7.1996 at about 6.30 P.M, he trespassed into the house of PW1 situated on the western side of Aandikkonam Ponnampacha Panchayat. PW1 was sitting on the veranda along with PW2, her mother. The petitioner/accused caught hold of PW1 by hair and dragged her and also beat her on the head and other parts of the body. PWs 1 to 8 were examined on the side of the prosecution and Exts.P1 to P4 were marked. No oral or documentary evidence were adduced on the side of the accused. On a total appreciation of the evidence, both oral and documentary, the trial court convicted the petitioner/accused and sentenced him to undergo simple imprisonment for six months under section 452, IPC and to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for one month. The accused/petitioner took up the matter in appeal as Crl.Appeal No.118 of 1998. The said appeal was dismissed by the First Additional Sessions Judge, Thiruvananthapuram and conviction and the sentence were confirmed, as per judgment dated 25.3.2004. Crl.R.P.1852/04 3 3. I have heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 4. As already noticed hereinbefore, the evidence in this case consisted on the oral evidence of PWs 1 to 8 and Exts.P1 to P4. The evidence of PW1 would show that the petitioner had trespassed into her property on 9.7.1996 at about 6.30 P.M while she was sitting along with her mother. The petitioner/accused caught hold of her hair and dragged and on account of the same, she has sustained abrasion on the right hand having size of 1 X 0.5 cm. PW3 is an independent woman who is the neighbour of both PW1 and petitioner/accused. PW4 is the Assistant Surgeon attached to the Taluk Hospital, Chirayinkeezh who examined PW1 and issued Ext.P2 certificate. The injury noted in Ext.P2 certificate is abrasion on the right hand having a size of 1 X .05 cms. Ext.P3 is the mahazar prepared by PW4 in the presence of PW6 and others. The evidence of PWs 1 and 2 which is supported by PW3 undoubtedly reveal that the incident occurred Crl.R.P.1852/04 4 while PW1 was sitting on the veranda of her house along with PW2. There is absolutely no evidence which would suggest that there exists any enmity between the petitioner/accused and PW3. As already noticed, he is the neighbour of the petitioner /accused. In short, I do not find any illegality or perverseness in the findings of the trial court and the manner of appreciation of evidence and the appellate court has rightly concurred with the findings of the trial court that the petitioner had trespassed into the property and entered into the veranda of the house belonging to PW1. In fact, nothing could be elicited from PW1, the injured to disbelieve her version. Evidence of PW4 and Ext.P2 certificate issued by PW4 would support the case of the prosecution that PW1 has sustained abrasion on her right hand. In the circumstances, the petitioner /accused cannot contend that there is perverse appreciation of evidence and on that ground, the judgment of the trial court and appellate court are liable to be interfered with. In the circumstances, I do not find any reason to interfere with the concurrent finding on facts. Crl.R.P.1852/04 5 5. The learned counsel for the petitioner submitted that having regard to the nature of the injury sustained by the petitioner which is in fact nothing but an abrasion only of a size of 1X .05 cms, the punishment on the petitioner is too severe. I am also of the view that the sentence to undergo simple imprisonment for six months under section 452 IPC is too severe in the circumstances. At the same time, considering the nature of the injury sustained by PW1, I am not inclined to interfere with the sentence and conviction under section 323 IPC. In the interest of justice, while confirming the conviction, I am inclined to reduce the sentence imposed on the petitioner/accused under section 452 IPC to one of simple imprisonment for one month. Accordingly, the conviction under section 452, IPC is confirmed, but the sentence thereon is modified and the petitioner is convicted to undergo simple imprisonment for one month. Sentence under section 323 IPC is confirmed. Fine amount, if realised, shall also be given to PW1 as compensation. Crl.R.P.1852/04 6 This criminal revision petition is allowed in part to the above extent. Transmit the records to the trial court for executing the sentence, in accordance with law. Sd/- C.T. RAVIKUMAR (Judge) spc Crl.R.P.1852/04 7 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 Crl.R.P.1852/04 8