IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3472 of 2008()
1. SHINODH, AGED 28 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :03/11/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3472 OF 2008
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Dated this the 3rd day of November, 2008
O R D E R
Petitioner is the accused in C.C.573 of 2007 on the file of
Judicial First Class Magistrate, North Paravur. He was arrested
on the night of 12.8.2007 from the house of PW1, where he was
detained by PWs 1 and 2. PW4, Head Constable, who reached
there on getting information through phone from PW1 arrested
and took the petitioner and recorded Ext.P1 F.I. Statement,
prepared Ext.P3 F.I.R and registered Crime 273 of 2007 for the
offence under section 511 read with section 457 of Indian Penal
Code. Prosecution case was that petitioner attempted to commit
lurking house trespass on that night in the house of PW1. After
completing investigation charge was laid. Petitioner pleaded
not guilty. Prosecution examined five witnesses and marked five
exhibits. PWs 1 to 3 were examined. When petitioner was
questioned under section 313 of Cr.P.C., his case was that he
was returning in his bicycle after viewing television through the
road when there was an altercation with PW2, the son of PW1,
and as PW1 is cousin of a police officer the case is foisted.
CRRP 3472/08 2
Petitioner did not adduce any evidence. Learned Magistrate on
evidence found him guilty. He was convicted and sentenced to
simple imprisonment for nine months and a fine of Rs.2,000/-
and in default simple imprisonment for two months for the
offence under section 511 read with section 457 of IPC.
Petitioner challenged the conviction and sentence before
Additional Sessions Court, N. Paravur in Crl. Appeal 716 of
2007. Learned Sessions Judge on reappreciation of evidence
confirmed the conviction but modified the sentence to simple
imprisonment for six months and a fine of Rs.2,000/- and in
default simple imprisonment for two months. Revision is filed
challenging the conviction and sentence.
2. Learned counsel appearing for revision petitioner was
heard.
3. The argument of the learned counsel is that Courts
below did not properly appreciate the evidence and fact that no
independent reliable witness was examined was not properly
appreciated. It was contended that petitioner at the defence
stage filed an application to recall PWs 1 to 3 and it was
dismissed and opportunity was not granted to examine witness
and the Courts below were not justified in convicting the
CRRP 3472/08 3
petitioner. Learned counsel also argued that petitioner was in
detention when the case was tried before learned Magistrate
and the judgment itself shows that petitioner was in custody
from 13.8.2007 onwards and he was granted the benefit of
section 428 of Cr.P.C. and was released only after filing of the
appeal and in such circumstances the sentence may be
modified to the period he was in custody.
4. On hearing the learned counsel and going through
the depositions of the witnesses examined, made available by
the learned counsel, I cannot agree with the submission that the
evidence was not properly appreciated or that there was
misappreciation of evidence. The fact that petitioner was taken
into custody by PW4 from the house of PWs 1 to 3 on the night
of 12.8.2007 cannot be disputed. Evidence of PW1 establish that
PW1 after detaining petitioner contacted the police and the
police reached there and took revision petitioner into custody.
PW2, the son of PW1corroborated the evidence of PW1 on that
aspect. PW3 the wife of PW1 further corroborated the evidence
of PWs 1 and 2. Ext.P3 F.I.R establish that on getting
information PW4 reached the house of PW1 and recorded Ext.P1
F.I. Statement and thereafter along with the petitioner reached
CRRP 3472/08 4
the police station and prepared Ext.P3 F.I.R and registered the
case on the same night. In such circumstances the question is
whether petitioner was detained by PWs 1 and 2 as claimed by
them or was he detained due to the altercation with PW2 as
claimed by the revision petitioner.
5. Though learned counsel vehemently argued that
there was no justification for dismissing the application filed for
recalling PWs 1 to 3 and copy of the application filed before
learned Magistrate was made available, I find that no ground
was made out to recall PWs 1 to 3. Though it was stated that
petitioner wanted to further examine PWs 1to 3, on what point
was not stated therein. In such circumstances there was no
necessity to recall PWs 1 to 3.
6. Evidence of PWs 1 to 3 establish that petitioner tried
to get into the house of PWs 1 to 3 on that night through the
back door and hearing the sound PWs 1 and 2 rushed there and
detained him. As rightly found by the Courts below, attempt of
the petitioner is definitely to commit an offence provided under
section 457 of IPC. In such circumstances conviction of the
petitioner for the offence under section 511 read with section
457 of IPC is perfectly legal and warrants no interference.
CRRP 3472/08 5
7. Then the only question is with regard to the sentence.
When the learned counsel submitted that petitioner is not
involved in any other offence, learned Public Prosecutor was
directed to verify that fact. Learned Public Prosecutor
submitted that petitioner is one of the accused in Crime 122 of
2004 registered by North Paravur police station for the offence
under section 392 read with section 34 of IPC and he is also one
of the accused in Crime 302 of 2004 of Cheranalloor police
station registered under sections 395 and 120B of IPC. Learned
counsel appearing for revision petitioner submitted that he
could not get the details. Learned counsel then submitted that
considering the fact that petitioner was in custody from
13.8.2007 till 5.11.2007, the date of conviction by learned
Magistrate and thereafter till learned Sessions Judge granted
bail, leniency may be shown.
8. Section 457 of Indian Penal Code provides for a
sentence of imprisonment which may extend to five years in
addition to fine. Section 511 of Indian Penal Code provides that
whoever commits an offence punishable under the Code with
imprisonment, shall be punishable for one-half of the sentence.
In the nature and circumstances of the case, interest of justice
CRRP 3472/08 6
will be met if the sentence is modified to three months in
addition to a fine for Rs.3,000/- and in default simple
imprisonment for two months.
Revision is allowed in part. Conviction of the petitioner for
the offence under section 511 read with section 457 of Indian
Penal Code is confirmed. Sentence is modified to simple
imprisonment for three months and a fine of Rs.3,000/- and in
default simple imprisonment for two months.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-