IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 428 of 2002()
1. MADHU, S/O.MADHAVAN BHATTATHIRI,
... Petitioner
2. SUNIL, S/O.MADHU, KANMANI BHAVAN,
3. ANIL, S/O.MADHU, KANMANI BHAVAN,
4. PRAVEEN @ KANNAN, KANMANI BHAVAN,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.GOVIND K.BHARATHAN (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/08/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.R.P.No.428 of 2002
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ORDER
First petitioner is the father and the other
petitioners his children. They were convicted and
sentenced for the offence under Section 3(1) of
Prevention of Damage to Public Property Act
(hereinafter referred to as ‘the PDPP Act’) and
Sections 447 and 427 of Indian Penal Code by
Judicial First Class Magistrate, Vaikom in C.C.No.
356 of 1993. The prosecution case was that on
9.11.1991 at about 11.30 a.m, in furtherance of
the common intention, petitioners trespassed into
the property belonging to the Government and under
the control of the Medical Officer, Talayolaparamba
Public Health Centre comprised in Sy.No.210/3 of
Vadayar Village, demolished the eastern compound
wall and formed a road on the south-east portion of
the compound and thereby caused mischief to the
extent of Rs.3,000/- to the Government property and
CRRP 428/02 2
committed the offences.
2. PW1 the Chief Medical Officer, lodged
Ext.P1 complaint before the Sub Inspector of Police
on 19.12.1991 and Crime 699/91 of Vaikom police
station was registered under Ext.P3 FIR. PW6, the
Investigating Officer, prepared Ext.P4 scene
mahazar and obtained Ext.P2 report from PW2, the
Village Officer. Though the case was registered as
against the first petitioner and others, by Ext.P6
report names of the other accused were also
incorporated. After completing the investigation,
charge was laid, which was taken cognizance by the
learned Magistrate. Petitioners pleaded not guilty.
The prosecution examined six witnesses and marked
six exhibits. Petitioners did not adduce any
evidence. Learned Magistrate on the evidence of PWs
1, 2 and 6, though the other witnesses turned
hostile, convicted the petitioners and sentenced
them to rigorous imprisonment for three years for
the offence under Section 3(1) of the PDPP Act and
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for one month for the offence under Section 447.
No separate sentence was passed for the offence
under Section 427 of Indian Penal Code. Though
petitioners challenged the conviction and sentence
before the learned Sessions Court, Kottayam in
Crl.A.No.14/1997, learned Additional Sessions Judge
on re-appreciation of evidence confirmed the
conviction and sentence and dismissed the appeal.
It is challenged in the revision.
3. Learned counsel appearing for the
petitioners and learned Public Prosecutor were
heard.
4. Though PWs 3, 4 and 5 were examined to
corroborate the evidence of PW1, they turned
hostile. PW2 the Village Officer who submitted
Ext.P2 report on the request of the Investigating
Officer has no personal knowledge with regard to
the incident that took place on 9.11.1991. Hence
the only evidence is that of PW1 to prove the
incident. The question is how far the evidence of
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PW1 is credible and reliable.
5. Though the incident alleged to have taken
place on 9.11.1991, Ext.P1 complaint was filed only
on 19.12.1991. In Ext.P1, PW1 has alleged that he
witnessed the incident apart from the staff of the
hospital. PW1 had given only the name of the first
petitioner and described the others as his “son and
others”. Even though petitioners 2 to 4 are the
sons of the first petitioner, he did not specify
the name of the son, to identify the person. The
names of petitioners 2 to 4 were incorporated based
on Ext.P6 report submitted on 20.12.1991. When
Ext.P1 complaint was filed more than one month
after the incident, if PW1 had known petitioners 2
to 4 at that time, in the ordinary course he would
have definitely stated about the names of all the
petitioners and would not have alleged that the
offence was committed by the first petitioner, his
son and others. Others mentioned therein cannot be
the other sons of the first petitioner as otherwise
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it would have been stated that the petitioner and
his sons. Even when PW1 was examined, he has not
specifically identified any of petitioners 2 to 4,
as the persons who was named as the son of the
first petitioner in Ext.P1 FI statement. If that
be so, based on the evidence of PW1, it cannot be
safely held that petitioners 2 to 4 committed the
offences. Hence, conviction of petitioners 2 to 4
cannot be sustained.
7. But, the case as against the first
petitioner stands on a different footing. If the
evidence of PW1 is credible and reliable as against
the first petitioner, the conviction warrants no
interference. The fact that the compound wall of
the hospital was demolished and a new road was cut
opened through the hospital compound is proved by
the evidence of PW1. It is also corroborated by
Exhibit P2 report submitted by PW2, the Village
Officer, as well as the evidence of PW6, the
Investigating Officer, who inspected the property
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and prepared Exhibit P4 scene mahazar on
20.12.1991. I have scanned the evidence of PW1 and
find no reason to disbelieve his evidence, which
was accepted by the trial court as well as by the
appellate court. Evidence of PW1 establishes that
first petitioner was one among the persons who cut
opened a road through the hospital compound after
demolishing a portion of the eastern compound wall.
In such circumstances, conviction of the first
petitioner for the offences under Sections 447 and
427 of Indian Penal Code and Section 3(1) of PDPP
Act is perfectly legal and warrants no
interference.
8. Then the only question is regarding the
sentence. Section 3(1) of PDPP Act provides a
sentence of imprisonment for a term, which may
extend to five years and fine. Though a minimum
sentence of six months is provided for an offence
under Section 3(2), no minimum sentence is provided
for the offence under Section 3(1) of PDPP Act.
CRRP 428/02 7
Learned Magistrate awarded rigorous imprisonment
for three months for the offence under Section 3(1)
of PDPP Act. The incident was in 1991. First
petitioner was then aged about sixty years. It was
about two decades back. Considering the entire
facts and circumstances of the case, interest of
justice will be met, if the sentence is modified to
imprisonment till rising of court and a fine of
Rs.5,000/- and in default, simple imprisonment for
one month for the offence under Section 3(1) of
PDPP Act. Learned Magistrate awarded simple
imprisonment for one month for the offence under
Section 447 of Indian Penal Code. Considering the
entire facts and circumstances of the case,
interest of justice will be met, if the sentence is
modified to the maximum fine provided for an
offence under Section 447 of Indian Penal Code.
Learned Magistrate has not awarded separate
sentence for the offence under Section 427 of
Indian Penal Code, which was not challenged by the
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State. In such circumstances, in a revision, filed
by the accused, no sentence could be awarded for
the offence under Section 427 of Indian Penal Code,
when no sentence was awarded by the trial court.
Revision is allowed in part. Conviction of
petitioners 2 to 4/accused 2 to 4 in C.C.No.
356/1993, as confirmed by Additional Sessions Judge
in Crl.A.No.14/1997 is set aside. They are found
not guilty of the offences. They are acquitted.
Conviction of the first petitioner for the offences
under Sections 447 and 427 of Indian Penal Code and
Section 3(1) of PDPP Act is confirmed. Sentence is
modified. In supersession of the sentence awarded
by the Magistrate and confirmed by the Additional
Sessions Judge, first petitioner/first accused is
sentenced to imprisonment till rising of court and
a fine of Rs.5,000/- (Rupees Five thousand only)
and in default, simple imprisonment for one month
for the offence under Section 3(1) of PDPP Act. He
is also sentenced to a fine of Rs.500/-(Rupees Five
CRRP 428/02 9
hundred only) and in default, simple imprisonment
for fifteen days for the offence under Section 447
of Indian Penal Code. First petitioner is directed
to appear before Judicial First Class Magistrate,
Vaikom on 07.09.2010. The Magistrate is directed to
execute the sentence.
11th August, 2010 (M.Sasidharan Nambiar, Judge)
tkv/vps
CRRP 428/02 10
M.Sasidharan Nambiar, J.
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Crl.R.P.No.428 of 2002
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ORDER
11th August, 2010