IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 Crl.Rev.Pet.No. 1547 of 2002(K) ------------------------------- CRA.27/1999 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA ST.828/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... REVN. PETITIONER(S): APPELLANTS ------------------------------- 1. KARTHIKEYAN, AGED 50 YEARS, S/O.NANU, VARIYATHUKALAYIL HOUSE, KATTAPPANA. 2. KUNJOONJU, AGED 58 YEARS S/O. PAPPACHAN VALLAMKULAM, KATTAPPANA. 3. PRASAD, AGED 27 YEARS, S/O. KARTHIKEYAN, VARIYATHUKALAYIL HOUSE, KATTAPPANA. 4. BABY, AGED 44 YEARS, S/O. GEORGE, UNNATHANIYIL HOUSE, KATTAPPANA. 5. MATHEW, AGED 52 YEARS, S/O. KURIAN, KOTTAKIZHIYIL HOUSE, KATTAPPANA. 6. SHIJI, AGED 30 YEARS, S/O. KUNJUAPPAN, THAYYIL HOUSE, KATTAPPANA. 7. JOSEPH, AGED 58 YEARS, S/O. DEVASIA, THOTTIPARAMBIL HOUSE, KATTAPPANA. BY ADV. SRI.P.K.JOSE SRI.JOICE GEORGE RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, THROUGH PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA. C NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1547 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of October, 2009 ORDER The revision petitioners are accused 1 to 7 in ST.No.828/1996 of Judicial First Class Magistrate, Kattappana and appellants in Crl.Appeal No.27/1999 of Additional Sessions Court Adhoc- II, Thodupuzha. The revision petitioners/accused persons were convicted for the offences punishable under Section 143, 147, 427 447 and 149 of IPC and sentenced to undergo simple imprisonment for one month each under Sections 143 and 447 of IPC and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- each under Sections 147 and 427 of IPC. In default of payment of fine, they are sentenced to undergo simple imprisonment for one month each. 2. The case of the prosecution as testified by the defacto complainant PW1 before the trial court was that at about 12 noon on November 26, 1995, the accused persons formed themselves into an Crl.Appeal No.1547/02 Page numbers unlawful assembly and trespassed into the property of PW1 and destroyed the Kayyala and fencing on the western boundary causing loss of Rs. 2,000/- to defacto complainant. 3. When the accused persons appeared before the trial court, copies of documents relied on by the prosecution were furnished. They pleaded not guilty to a charge under Section 143, 147, 427, 447 read with Section 149 of IPC. PWs 1 to 6 were examined and Exts.P1 to P3 were marked on the side of prosecution. When questioned under Section 313Cr.P.C. by the trial court, they denied the entire incident. On the side of the accused persons, DWs 1 and 2 were examined. 4. The trial court on an appreciation of evidence found the revision petitioners guilty of the offences punishable under Section 143, 147, 427, 447 read with Section 149 of IPC and sentenced them as aforesaid. On appeal, the lower appellate court confirmed the conviction and sentence of the revision petitioners. The accused persons have come up in revision challenging their conviction and sentence. 5. Learned counsel for the revision petitioners arguing the Crl.Appeal No.1547/02 Page numbers revision petition submitted that the prosecution did not prove that the Kayyala which was allegedly destroyed by the respondents was in the property of PW1 and that it was at the request of the Panchayat they conducted maintenance work of the road there and that therefore they have not committed any offence . The Public Prosecutor on the other hand supported the judgment of both the courts below. 6. The following points arise of consideration : 1) Whether the conviction of the revision petitioners by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 7. PWs 1 to 6 were examined and Exts.P1 to P3 were marked on the side of the prosecution before the trial court. PW1 is the defacto complainant. He testified in terms of the case of the prosecution. His evidence was mainly challenged on the ground that there is no evidence to show that he was in possession of the property in which the allegedly damaged kayyala stood and that there was a delay of more Crl.Appeal No.1547/02 Page numbers than three months in complaining to the police. On going through the evidence of PW1 it is seen that it is not seriously disputed in cross examination the possession of PW1 of the said property and the damaged kayyala. Ext.P2, the mahazer, also proves the same. The damage caused to the Kayyala is also described in Ext.P2. Further PW1 has explained the delay in lodging the complaint in Ext.P1 the FIS itself. He has filed a complaint before Panchayat authorities and as they did not take any action, he filed the complaint before police. Therefore, in my view the trial court as well as lower appellate court is justified in believing the evidence of PW1. PW1 is not an eye witness to the incident. PW2, the alleged eye witness to the incident supported the prosecution. I have gone through his evidence. Nothing was brought out in cross examination to discredit his evidence. It was not even suggested during cross examination that he has any enmity towards accused persons. Therefore, in my view the trial court as well as the lower appellate court is right in believing his evidence. 8. PW3 was another alleged eye witness to the incident who turned hostile and did not support the prosecution. PW4 is only an Crl.Appeal No.1547/02 Page numbers attestor to scene mahazer. PW5 is the Head constable who prepared mahazer. PW6 is the sub inspector of Police who conducted investigation and laid the charge before trial court. 9. The case of the accused persons was that PW1 has reduced the width of the Panchayat road on the west of his property, that people in that locality restored the way to its original position and that they did not damage the kayyala of PW1. In an attempt to prove their case they examined DW1 and DW2 before the trial court. DW1 is the President and DW2 is the Vice President of the Panchayat. But their evidence does not in any way help the accused persons to prove their case. They have only stated that people in that locality conducted maintenance work in the said road. Thus, in my view the trial court as well as lower appellate court are perfectly justified in believing the evidence of PW1, 2, 5 and 6 and finding that accused persons on November 26, 1995 at 12 0' clock noon formed themselves into an unlawful assembly with the common object of trespassing into the property of PW1 and committing mischief and in furtherance of the common object they trespassed into the property of PW1 and destroyed the kayyala thus Crl.Appeal No.1547/02 Page numbers causing a loss of Rs. 2000/- to PW1. 10. Therefore, I am inclined to confirm the conviction of the revision petitioners under Section 143, 147, 427, 447 read with Section 149 of IPC rendered by the trial court which is confirmed in appeal. 11. As regards sentence, the incident occurred on November 26, 1995 i.e. about 13 years ago. Further the loss caused to the defacto complainant was only Rs. 2,000/-. Taking into consideration all these aspects, I feel that a sentence of fine of Rs. 2,000/- under Sections 143, 147 and 427 of IPC and a fine of Rs. 500/- under Section 447 of IPC would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioners under Section 143, 147, 427 and 447 of IPC rendered by the trial court which is confirmed in appeal is upheld. Sentence is modified to the effect that the appellants are sentenced to pay a fine of Rs. 2000/- each under Section 143 of IPC, in default, to undergo simple imprisonment for one month each. They are further sentenced to pay a fine of Rs. 2000/- each under Section 147 of IPC, in default, to undergo simple imprisonment for one month each. They are Crl.Appeal No.1547/02 Page numbers also sentenced to pay a fine of Rs. 500/- each under Section 447 of IPC, in default, to undergo simple imprisonment for one week each. They are again sentenced to pay a fine of Rs. 2,000/- each under Section 427 of IPC, in default, to undergo simple imprisonment for one month each. Out of the fine amount, if realised, Rs. 2,000/- shall be paid to PW1 defacto complainant as compensation provided under Section 357(1) Cr.P.C. Three month's time is granted for payment of fine. Their bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal No.1547/02 Page numbers