IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2080 of 2005()
1. GEORGE, S/O. JOHN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/09/2008
O R D E R
M.N. KRISHNAN, J.
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Crl. R.P. No. 2080 of 2005
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Dated this the 17th day of September, 2008
ORDER
This Revision Petition is preferred against the judgment of the
First Addl. Sessions Court, Kollam in Crl. Appeal No.72 of 2000. The
appellant was charged for having committed an offence punishable
under Section 353 of the Indian Penal Code. The accusation against
the accused appellant is to the effect that while PW1 to PW3 were on
duty in the factory premises, in connection with the annual club day
celebrations of the factory. It is alleged that the accused made
provocative remarks and thereafter attempted to push PW1 and thereby
prevented him from doing his work, so as to attract the offence under
Section 353 of the Indian Penal Code. In the trial court, PW1 to PW7
were examined and Exhibits P1 to P3 were marked. The trial court
convicted the accused and sentenced him to undergo simple
imprisonment for three months. It is against that decision, the accused
preferred this appeal before the appellate court, which also ended in
dismissal. The present Revision Petition is against that judgment. The
Crl. R.P. No. 2080 / 2005
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learned counsel for the Revision Petitioner would argue that the
ingredients necessary to constitute the offence under Section 353 is
absent and there is no evidence at all to show that they were in the
premises, working as police officials for discharging their duty. The
learned counsel also invited my attention to the decision of this court in
Mohammed Kutty Vs. State of Kerala, reported in [2004(1) K.L.T.
331], wherein this court held that to attract the section, it must be
proved that person who has assaulted was in execution of his duty as
such as a public Servant. There cannot be any quarrel about those
proposition. I perused the offence of PW1 to PW3 in this case. PW1 is
a police constable and he had deposed before the court that he along
with PW2 and PW3 are working in the I.R.E factory premises, on duty
in connection with a function in the said premises. He was able to see
that the present accused was creating problems, after getting
intoxicated and therefore, he was requested into go away from the
premises. The accused abused him and hold on his uniform shirt. He
also interfered with the functions of PW2 and PW3. In the cross
examination, there is no suggestion to the effect that he was not
Crl. R.P. No. 2080 / 2005
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working in the premises as part of his duty. Whereas the question put
to him is otherwise and therefore, on this length of time, the contention
that there was not evidence to prove that they were exercising the duty
at the time, on the date of incident, cannot be accepted. So also all the
evidence of PW2 and PW7. The factum of interfering with the duty is
also proved by the evidence of PW2 and PW3. Therefore, I cannot find
any fault with the court below for having accepted the evidence of
PW1 to PW3, which I find are indirectly reliable and non-reliable
probability.
Now the next question is regarding the sentence. The incident has
taken place in the year 1994 and I have informed that the Revision
petitioner is already aged 65 years and therefore, the learned counsel
would submit that some leniency may be shown. On a perusal of the
entire materials available would show that this man probably on
account of intoxicated spirit, attempted to make quarrel, which has
resulted in the registration of the case, for which he had undergone
corporately on trail more than 14 years. At the same time, it also to be
remembered that a person doing public duty, that too a police
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constable, cannot be disturbed from exercising his functions. In order
to meet the needs of justice, I feel that the sentence can be modified
into one of fine by altering it from sentence of imprisonment.
Therefore, the Criminal Revision petition is disposed of as follows;
1. the conviction under Section 353 of the Indian
Penal Code is upheld.
2. the sentence of three months simple
imprisonment is modified and the revision
petitioner is directed to pay a fine of Rs.3,000/-
and in default to undergo simple imprisonment
for a period of one month.
The Revision petition is disposed of accordingly.
M.N. KRISHNAN, JUDGE
scm