IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 Crl.Rev.Pet.No. 44 of 2008() ---------------------------- CRA.416/2004 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.183/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... REVN. PETITIONER: APPELLANTS/ACCUSED ------------------------------------ 1. VINCENT, AGED 33 YEARS, S/O THOMSON NADAR, KANIKKONAM KALLUVILAPUTHEN VEEDU, CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE. 2. DEVANESAN, AGED 46 YEARS, S/O THOMSON NADAR, KANIKKONAM KALLUVILA PUTHEN VEEDU, CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- THE STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, VELLARADA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.44 of 2008 ---------------------------------------- Dated this the 8th day of January 2008 O R D E R Revision petitioners are aggrieved by the concurrent verdict of guilty, conviction and sentence in a prosecution under Sections 447 and 427 read with 34 I.P.C. 2. The crux of the allegations against the petitioners is that on 23/11/1998 at about 5.30 p.m, they trespassed into the property belonging to the children of PW1 and PW2 and in their possession and indulged in wanton acts of destruction and mischief. 38 betel plants cultivated in the property were allegedly cut and destroyed resulting in an alleged loss of Rs.10,000/- to PW1. Prior animosity between the neighbours is the alleged motive. 3. Cognizance was taken on the basis of a final report submitted by the police after due investigation. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P5. MO1 series were also marked. 4. PW1 is the de facto complainant. PW2 is his wife. PW1 had not witnessed the incident proper. PW2 had witnessed the incident and reported the incident to PW1 when he returned Crl.R.P.No.44/08 2 home. PW2 had allegedly witnessed accused 1 and 2 indulging in the alleged wanton acts of mischief and destruction. Ext.P1 is the F.I.S lodged by PW1. He lodged Ext.P1 F.I statement only on the next day, that is 24/11/1998. The F.I.R was registered thus on 24/11/1998 and the same had reached the court on 26/11/1998. PW3 is an eye witness examined who turned hostile and did not support the case of the prosecution. PWs 4 and 5 eye witnesses supported the prosecution case and corroborated the evidence of PW2. PW6 is the police official who had roles to play in the registration of Ext.P4 F.I.R on the basis of Ext.P1 F.I statement and in the conduct of investigation. Ext.P2 is the sale deed under which the children of PWs 1 and 2 had acquired rights over the property in question. Ext.P3 is the tax receipt evidencing payment of land revenue for the land in question in which the trees stood. Ext.P5 is the scene mahazer. The scene mahazer bears tell tale indications of the damage and destruction which had taken place in the property. Accused took up a defence of total denial. No defence evidence adduced. 5. The courts below concurrently came to the conclusion that the oral evidence of PW2 which is duly supported by Ext.P1 F.I statement as also the oral evidence of PWs 4 and 5 can safely Crl.R.P.No.44/08 3 be accepted. When accepted, that evidence is sufficient to enter the verdict of guilty and conviction against the accused under Sections 447 and 427 I.P.C, it was held. Accordingly they proceeded to pass the impugned concurrent judgments. The petitioners now face a sentence of S.I for a period of two months under Section 427 I.P.C and S.I for a period of one month under Section 447 I.P.C. There is a further direction to pay an amount of Rs.3,000/- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a period of one month. 6. The petitioners claim to be aggrieved by the impugned appellate judgments. Called upon to explain the nature of the challenge which the petitioners want to mount against the impugned appellate judgments, the learned counsel for the petitioners contends that the courts below went wrong in placing reliance on the oral evidence of PWs 2,4 and 5. The learned counsel for the petitioners contends that PW2 is an interested witness. PWs 4 and 5 are interested witnesses who, by chance, claim to have been present in the house of PW2. The learned counsel relies on the alleged delay of one day in lodging Ext.P1 F.I.statement also. Crl.R.P.No.44/08 4 7. I must alertly remind myself that I am at the third tier of the criminal litigation and must be conscious of the nature, quality and contours of that jurisdiction. A re-appreciation of evidence is not called for. The question is whether the findings of facts entered are grossly erroneous or perverse and whether they lead to miscarriage of justice. 8. Appreciation of evidence in a case like this must certainly start with the help of Ext.P5 scene mahazer which clearly affords tell tale indications of the nature of the damage and destruction which had taken place in the property. The evidence of PW2 shows that she, standing near her house, was able to witness such overt acts committed by the petitioners herein which resulted in such damage described in Ext.P5. The evidence of PWs 4 and 5 afford support of the oral evidence of PW2. But even discarding the evidence of PWs 4 and 5, evidence of PW2 is certainly worthy and acceptable. The evidence of PW2 is further supported by the averments in Ext.P1 F.I.statement lodged by PW1 on the next day after collecting the relevant information from PW2. In any view of the matter, I am not persuaded to agree that the oral evidence of PWs 2,4 and 5 do deserve acceptance deserves interference. In revision the said Crl.R.P.No.44/08 5 findings of the courts below do not, according to me, warrant any interference. 9. Finally, the learned counsel for the petitioners submits that leniency may be shown on the question of sentence. The alleged incident took place in 1998. The petitioners have been suffering the trauma of this prosecution for the past about a decade. The petitioners are willing to compensate the victim and pay to them the alleged loss which they claim to have suffered - Rs.10,000/- 10. Having considered all the relevant inputs, I am satisfied that leniency can be shown on the question of sentence. I take note of the fair offer by the learned counsel for the petitioner. I take note of the fact that the parties are neighbours. I take note of the further fact that about a decade has already elapsed from the date of the alleged culpable indiscretion committed by the petitioners. 7. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioners under Section under Sections 447 and 427 I.P.C.are upheld. Crl.R.P.No.44/08 6 c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioners by the courts below, they are sentenced to undergo imprisonment till rising of court. They are further directed under Section 357(3) Cr.P.C to pay or deposit an amount of Rs.10,000/- (Rupees ten thousand only) (Rs.5,000/- each) as compensation and in default, to undergo S.I for a period of two months. If realised, the entire amount shall be released to the complainant as compensation. 8. The petitioners shall appear and their sureties shall produce them before the learned Magistrate on or before 01/02/2008 to serve the modified sentence hereby imposed. The impugned sentence shall not be executed till that date. If the petitioner do not so appear before the learned Magistrate on or before 01/02/2008, the learned Magistrate shall thereafter proceed to execute the modified sentence hereby imposed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.44/08 7 Crl.R.P.No.44/08 8 R.BASANT, J C.R.R.P.No. ORDER Crl.R.P.No.44/08 9 21ST DAY OF JULY 2006