IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 43 of 2001() ---------------------------- CRA.52/1997 of SESSIONS COURT, KASARAGOD CC.527/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER: --------------------- T.C. KURIAKOSE, S/O.CHERIAN, CHERUVALLIYIL VEEDU, KOLICHAL, PANANTHADY VILLAGE, HOSDURG TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALAL, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUKLAM. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- CRL.R.P.No.43 of 2001 ----------------------------------------- Dated this the 21st May, 2009 O R D E R Revision petitioner was charge sheeted for offences under Sections 353 and 294(b) of the Indian Penal Code. He was tried and convicted by the Judicial Magistrate of First Class under both sections and sentenced to undergo rigorous imprisonment for a period of six months under Section 353 IPC and to undergo rigorous imprisonment for one month and to pay a fine of Rs.250/- and in default to undergo simple imprisonment for seven days for offence under Section 294(b) IPC. The sentences were ordered to run concurrently. The said conviction and sentences were challenged before the Sessions Court. The learned Sessions Judge confirmed the conviction and sentence and dismissed the appeal and hence this revision. 2. Facts briefly: According to the prosecution, PW5 was working as a forester at the check-post. On 8.4.1995 at about 9.45 PM, when he was trying to put the iron bar at the check- Crl.R.P.43/01 2 post, in the course of discharge of his official duty, the accused came there and pushed him and tried to hit him with a stone and also abused him in obscene language against him on the public road after getting drunk and thereby committed the various offences. 3. Both the courts below found that the evidence of PW5, who is the de facto complainant can be accepted. PW5 is the sole witness, who supported the prosecution case. He is the de facto complainant. PW1 is another alleged witness to the occurrence. But, he turned hostile to the prosecution and stated that he had not seen the incident. 4. According to the revision petit ioner, both the courts committed an error in relying upon the sole testimony of the highly interested witness PW5, who is the victim in this case. The above argument was raised before the lower courts and it was found that PW1's evidence is acceptable even without corroboration. On going through the entire evidence, I find no reason to reverse the concurrent finding of facts regarding reliability of PW1's evidence without corroboration. It is Crl.R.P.43/01 3 relevant to note that the accused has no specific defence. He has not put forward any case that the petitioner was motivated against him. He has no case that there is any enmity between the accused for PW5 to concoct a case against the petitioner and to secure a conviction against him. Nothing is brought out in evidence to impress the court that this is a falsely foisted case. There is no explanation why PW5 fabricated a false case against him. For all these reasons, I do not find any ground to set aside the concurrent findings of fact entered into by both the courts below after appreciating the evidence of PW5 in the right perspective. 5. Another argument is that the revision petitioner was not on his official duty at the relevant time since his official duty starts at 8 AM and the incident happened at 9.45 PM, going by the routine duty time, which is only for 8 hours as per the evidence of PW5. This argument was also raised before both the courts below and it was considered at length and it was found that in the light of the evidence, the other officials were not at the spot, but they were standing about 30 meters Crl.R.P.43/01 4 away and hence, the petitioner as an officer had put the iron pipe at the check-post as a part of his official duty. The concurrent findings on this aspect also cannot be interfered with since no perversity in these findings was pointed out. 6. Another ground raised is that Section 353 IPC is not attracted in this case, since there was no attempt to assault PW5. This argument was also advanced before both the courts below and it was also considered in the light of the evidences adduced. The evidence of PW5 clearly shows that physical advances were made by accused against him and he also stated that he was pushed and attempted to be hit by stone etc. At that time he ran away from the spot and took shelter in the check-post and thereby he was prevented from discharging his official duty. These facts are also stated in the First Information Statement itself which was lodged within 30 minutes as concurrently found by the courts below. 7. On going through the records, I have absolutely no reason to hold that the findings of facts challenged in this revision are perverse. Except the above points, no other Crl.R.P.43/01 5 points were argued before me at the time of hearing. In the circumstances, I find absolutely no reason why I should interfere in the conviction entered against the accused. Learned counsel for revision petitioner argued that leniency may be extended to the accused in the case of sentence. Petitioner is aged 50 years now and the incident happened 14 years back. Petitioner regrets for the offence and he is leading peaceful life now family and he is not involved in any other offence, it is submitted. Therefore, the sentence of imprisonment may be reduced as petitioner is prepared to compensate the de facto complainant, it is submitted. 8. On hearing both sides and on considering the facts and circumstances of the case, I find that the sentence can be modified while confirming the conviction under Sections 353 and 394(b) IPC. In the result, the conviction against the revision petitioner is confirmed and he is sentenced to undergo rigorous imprisonment for four months for offence under Section 353 IPC and to undergo rigorous imprisonment for a Crl.R.P.43/01 6 period of 20 days and to pay a fine of Rs.3,000/- and in default, to undergo simple imprisonment for a period of 15 days for offence under Section 294(b) IPC. The sentence of imprisonment shall run consecutively. If the fine amount is deposited, it shall be paid to PW5, the victim. Revision petitioner shall appear before the trial court within one month from today to serve the sentence. Revision petition is partly allowed. K.HEMA, JUDGE vgs. Crl.R.P.43/01 7 K.HEMA, J. ----------------------------------------- CRL.R.P.No.43 of 2001 ----------------------------------------- Dated this the 21st May, 2009 O R D E R