IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.REV.PET.NO. 47 OF 2001() -------------------------------------------- CRL. APPEAL NO.29 OF 1996,ST.364/1994 OF SESSIONS COURT, PALAKKAD AGAINST S.T. NO.364 OF 1994, OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- PRAKASAN, S/O. VELAN @ VELLA POOLAPARAMBU VEEDU, KODUVAYOOR. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S) - RESPONDENT - COMPLAINANT: ---------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.47 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21st day of May, 2009 O R D E R -------------- This revision petition is in challenge of the judgment of the learned Sessions Judge, Palakkad in Crl. Appeal No.29 of 1996 confirming conviction of the petitioner for offence punishable under Section 171F of the Indian Penal Code (for short, “the Code”) and sentence to undergo simple imprisonment for three months. 2. Case is that on 7.9.1993 in the Bye Election from Ottapalam Lok Sabha Constituency petitioner, personating himself as voter No.269 in the voters' list, Murukadas in polling booth No.17, set up at Vilayannur Village Basic School and thereby committed the offence as above stated. Learned Magistrate who tried the petitioner convicted and sentenced him to undergo simple imprisonment for three months. That was confirmed in appeal. 3. It is contended by learned counsel for petitioner that identity of the offender is not established beyond reasonable doubt and that even if the entire case of the prosecution is accepted it did not amount to an offence of personation as defined in Sec.171D of the Code, what is revealed is only a preparation to personate which is not made punishable under the Code and that at any rate, sentence CRL. R.P. No.47 of 2001 -: 2 :- awarded is excessive. Learned Public Prosecutor in reply contended that there is sufficient evidence to show that the petitioner personating himself as Murukadas applied for voting paper and thereby committed the offence. 4. P.W.1 was the Presiding Officer of the polling booth in question. He preferred Ext.P1, report to P.W.9, police constable who was on duty. According to P.W.1, petitioner came to the booth claiming to be voter No.269 in the voters' list, Ext.P2. Petitioner was carrying the slip of voter No.269. At that time some of the polling agents who were present in the booth objected to the identity of the petitioner and thereafter with Ext.P1, report petitioner was handed over to the police. P.W.2 was the first Polling Officer. He also referred to the incident and claimed that the person who came for voting as voter No.269 was detained in the polling booth and handed over to the police. P.Ws.3 and 4 did not support the prosecution fully but stated about a person coming to the polling booth claiming to be voter No.269. P.W.5 was the Polling Assistant. He spoke to the incident as per the prosecution case. P.Ws.6 and 7 did not support the prosecution. From the above evidence courts below found that a person came to the polling booth on the relevant day, time and place and applied for voting paper claiming to be voter No.269 in Ext.P2, CRL. R.P. No.47 of 2001 -: 3 :- voters' list. I have gone through the evidence and did not find any reason to interfere with that finding which rested on a proper appreciation of evidence. 5. Contention raised is that the identity of the offender is not established. This contention cannot stand for various reasons. Firstly P.W.1, Presiding Officer has identified petitioner as the person who personated himself as voter No.269. Secondly it is in evidence that the petitioner was detained in the polling booth and was handed over to the police constable along with Ext.P1, report. P.W.9, police constable stated that he was on duty in the polling booth on the relevant day, place and time and petitioner was handed over to him with Ext.P1, report. He in turn handed over the petitioner with Ext.P1, report to P.W.8, Head Constable. When questioned under Sec.313 of the Code of Criminal Procedure petitioner claimed that he was merely standing near the polling booth and taken to custody. In the light of the above evidence and circumstances the challenge to identity of the offender cannot be sustained. 6. It is next contended that even if the entire evidence is accepted it did not amount to 'personation' as defined in Sec.171D of the Code as the act of the petitioner only amounted to preparation. The above argument is raised by the counsel on the premise that CRL. R.P. No.47 of 2001 -: 4 :- petitioner had not voted or applied for voting paper in the name of voter No.269, Murukadas. Going by the evidence of P.W.1, petitioner came with the slip of voter No.269, Murukadas. But P.W.1 has no case that petitioner had applied for a voting paper. Nor had he given the petitioner a voting paper. Mere fact that petitioner was carrying the slip of voter No.269 (not issued by the polling officials) is not by itself sufficient to think that the petitioner had applied for a voting paper. It is not the case of P.W.1 that he had taken custody of the slip brought by the petitioner. Nor had the petitioner handed over the slip to P.W.1 for getting a voting paper. According to the learned Public Prosecutor the very fact of petitioner entering the polling booth amounted to his applying for voting paper. I am not inclined to accept that contention. It would have been a different position if the petitioner had handed over the slip he was carrying to the Presiding Officer in which case it could have been taken as a request for voting paper. That has not happened in this case. Therefore going by the definition of 'personation' as given in Sec.171D of the Code I am unable to hold that the petitioner had applied for voting paper and thus committed the offence of personation. 7. But, the act of the petitioner entering the polling booth with the slip in the name of voter No.269, Murukadas amounted to CRL. R.P. No.47 of 2001 -: 5 :- attempt to personate himself as Murukadas. That is not merely a preparation. Petitioner entered the polling booth with the intention of procuring the voting paper and voting in the name of voter No.269, Murukadas. That amounted to an attempt on his part, punishable under Sec.511 of Sec.171F of the Code. Conviction of the petitioner is altered accordingly. 8. So far as the sentence is concerned, learned counsel for petitioner prayed for leniency. It is pointed out that petitioner was aged only 17 years at the relevant time and that 16 years have now elapsed. Learned counsel submitted that petitioner is not shown to be involved in any other case. 9. It is true that what the petitioner did is an affront to the democratic system as rightly observed by learned Magistrate. Considering the fact that the petitioner was aged only 17 years at the relevant time and as it is not shown that petitioner is involved in any other case I am inclined to give an opportunity to correct himself rather than his being sent to Jail to get connected with habitual offenders. In the facts and circumstances of the case a fine of Rs.3,000/- will be sufficient in the ends of justice. Resultantly, this revision petition is allowed in part in the following lines: CRL. R.P. No.47 of 2001 -: 6 :- (i) Conviction of the petitioner is altered to one under Sec.511 of Sec.171F of the Code. (II) Sentence is modified as fine of Rs.3,000/- (Rupees Three thousand only) and in default of payment, to undergo simple imprisonment for three months. Criminal Miscellaneous Petition No.208 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.47 OF 2001 =================== O R D E R 21ST MAY, 2009