Kerala High Court
Padmanabhan vs State Of Kerala on 8 February, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939
Crl.Rev.Pet.No. 914 of 2007
AGAINST THE JUDGMENT IN CRA 563/2004 of ADDITIONAL SESSIONS COURT
(ADHOC-I), MANJERI
AGAINST THE JUDGMENT IN CC 520/2001 of J.M.F.C.,MALAPPURAM
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
PADMANABHAN, S/O. BALAKRISHNAN,
PRANUR HUSE, OTHUKKUNGAL AMSOM,, KALATHUPARAMBA
DESOM, MALAPPURAM.
BY ADV.SRI.VINOD VALLIKAPPAN
RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE::
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-02-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ma
P.UBAID, J.
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Crl.R.P No.914 of 2007
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Dated this the 8th February, 2018
ORDER
The revision petitioner herein is the sole accused in C.C 520/2001 of the Judicial First Class Magistrate Court, Malappuram. The de-facto complainant in this case is his next door neighbour. She is a lady having husband and children. The revision petitioner faced prosecution in the court below under Sections 452, 355 and 324 I.P.C, on the allegation that at about 3.30 p.m on 11.3.2001, he trespassed into the house of the de facto complainant, assaulted her, and inflicted injuries on her body with a chappal and also with a stick, due to some previous enmity. The Police registered the crime on the complaint made by the de-facto complainant on the same day. After investigation, the Police submitted final report in court.
2. The accused appeared before the learned Magistrate and pleaded not guilty to the charge framed against him. The prosecution examined ten witnesses and proved Exts.P1 to P4 documents. The MO1 and MO2 properties were also identified during trial. The accused Crl.R.P No.914 of 2007 2 denied the incriminating circumstances when examined under Section 313 Cr.P.C and projected a defence that the de facto complainant foisted a false case against him for fear that he would report her bad ways to her husband, who was abroad at that time. The accused also examined a witness on his side in defence as DW1.
3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for two years under Section 452 I.P.C and to undergo simple imprisonment for one year each under Sections 355 and 324 I.P.C. Aggrieved by the judgment of conviction dated 12.10.2004, the accused approached the Court of Session, Manjeri with Crl.A.563/2004. In appeal, the learned Additional Sessions Judge (Adhoc-I), Manjeri confirmed the conviction and sentence, and accordingly dismissed the appeal. The accused has come up in revision before this court, challenging the legality and propriety of the conviction and sentence.
4. On hearing both sides, and on a perusal of the materials, I find that what is at the best made out and Crl.R.P No.914 of 2007 3 proved by the prosecution evidence in this case is an instance of simple house trespass with intention to cause hurt, and also an instance of voluntary infliction of injury with weapon. What is punishable under Section 355 I.P.C is use of criminal force or assault with the object of dishonouring a person. There is no such situation here. The evidence proves that the accused trespassed into the house of the de facto complainant with the object of assaulting her and inflicting injuries on her body, and as planned and determined by him, he caused injuries on her body with a stick. This is punishable only under Section 324 I.P.C. The offence under Section 355 I.P.C is a different one with different ingredients, and the prominent ingredient must be the intention to dishonour a person. So also, what is punishable under Section 452 I.P.C is house trespass with preparation to cause hurt. There is nothing in this case to show that the accused was armed with any weapon when he entered the house of the complainant,or that he had made any preparation to cause hurt on her body. In the absence of such necessary ingredients, the house trespass is punishable only under Section 451 I.P.C as simple house Crl.R.P No.914 of 2007 4 trespass with intention to commit an offence punishable with imprisonment. Accordingly, I find that the conviction and sentence in this case under Section 355 I.P.C is liable to be set aside, and the conviction under Section 452 I.P.C is liable to be altered to Section 451 I.P.C.
5. Now the question is whether the conviction under Section 324 I.P.C can be sustained. PW1 is the de facto complainant, and PW2 is her daughter. These two witnesses have given definite and consistent evidence proving the alleged house trespass, assault and infliction of injuries. PW3 is the Doctor who examined PW1 at the hospital, and issued the Ext.P2 wound certificate. The medical evidence shows that PW1 had sustained an abrasion on the left palm and swelling on the right side of her forehead. She had also complains of pain. I find no reason to disbelieve the two material witnesses or to reject their evidence. Whatever be the motive for the incident, it stands well proved that the accused had in fact trespassed into the house of PW1, without any justification for it, and he had inflicted simple injuries on her body with a stick. Evidence also shows that the said stick was taken by him from the court yard of the Crl.R.P No.914 of 2007 5 house of PW1. Both the witnesses stated that PW1 was beaten with a chappal and with a stick also. During trial, the material witnesses identified the said chappal as the MO2 and they also well identified the MO1 as the stick with which the accused inflicted injuries.
6. The evidence given by the other witnesses is only formal. PW10 is the Assistant Sub Inspector, who conducted investigation in this case. He has given evidence proving the seizure of the material objects. Of course, it is true that MO1 was not recovered under Section 27 of the Evidence Act. However, the weapon was well identified by the witnesses during trial. Thus, I find that on factual aspects, PW1 and PW2 are definite and consistent, and their evidence well proves the offence under Section 324 I.P.C against the accused.
7. Now the question of sentence. The sentence imposed by the court below under Section 324 I.P.C is simple imprisonment for one year, and the sentence under Section 452 I.P.C is simple imprisonment for two years. The incident happened in March, 2001. The parties are close neighbours. Of course, the accused cannot have any Crl.R.P No.914 of 2007 6 justification for the acts of offence committed by him, and his defence appears to be that PW1 foisted a false case against him for fear that he would report her bad ways to her husband, who was abroad at that time. There is nothing to show that PW1 is a woman of bad ways. It is not known how the accused moulded such a defence or projected such a defence during trial. The accused was aged 44 years at the time of the incident. There is nothing to show that the accused had abused or humiliated the lady on any previous occasion. In the above circumstances, I find that jail sentence for a short period will be the adequate sentence in this case.
In the result, this revision petition is allowed in part. The revision petitioner is found not guilty of the offence under Section 355 I.P.C, and he is acquitted of the said offence in revision. Accordingly, the conviction and sentence against him under Section 355 I.P.C will stand set aside, but the conviction under Section 324 I.P.C is confirmed and the conviction under Section 452 I.P.C is altered to one under Section 451 I.P.C. Accordingly, the jail sentence imposed by the court below under Section 324 Crl.R.P No.914 of 2007 7 I.P.C will stand modified and reduced to one month. The sentence imposed under Section 452 I.P.C is set aside and instead a sentence of simple imprisonment for one month is imposed under Section 451 I.P.C. The two sentences will run concurrently. The accused will also get the benefit of set off, if any, as already ordered by the trial court.
P.UBAID JUDGE ma