Kerala High Court
Ajesh Alias Kunhu vs The State Of Kerala on 17 August, 2020
Equivalent citations: AIRONLINE 2020 KER 967
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942
Crl.Rev.Pet.No.1359 OF 2009
AGAINST THE JUDGMENT IN CRL APPEAL NO.204/2008 DATED 28-11-2008 OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK COURT (ADHOC-
II), KOZHIKODE
AGAINST THE JUDGMENT IN CC NO.711/2006 DATED 31-01-2008 OF
JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERAMBRA
REVISION PETITIONER/APPELLANT/ACCUSED:
AJESH ALIAS KUNHU
S/O VELLAN, THALLIKANDI VEEDU, KOORACHUNDU AMSOM,
POOVATHUMCHOLA, KOZHIKODE.
BY ADV. SRI.K.M.FIROZ
RESPONDENT/RESPONDENT/PROSECUTION:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
28-07-2020, THE COURT ON 17-08-2020 PASSED THE FOLLOWING:
Crl.Rev.Pet.No.1359 OF 2009
2
ORDER
Dated this the 17th day of August 2020 The revision petitioner is the accused in CC.No.711/2006 on the file of the Judicial First Class Magistrate-II, Perambra.
2. By judgment dated 31.01.2008, the learned Judicial First Class Magistrate-II, Perambra, convicted and sentenced the accused for the offences punishable under Sections 447 and 323 of the IPC. For the offence under Section 437 of the IPC, the accused was sentenced to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for one month more. For the offence under Section 324 of the IPC, the accused was sentenced to undergo simple imprisonment for three months. Challenging the conviction and sentence, the accused preferred Criminal Appeal No.204/2008 on the file of the Sessions Court, Kozhikode. By judgment dated 26.11.2008, the learned Additional Sessions Judge Fast Track (Adhoc-I) Court, Kozhikode, to whom the case was made over for hearing, dismissed the appeal confirming the conviction and sentence imposed by the learned Magistrate. Being aggrieved, the accused is before this Court in revision.
3. The prosecution case in brief, is that on 25.09.2006 at
7.p.m, the accused criminally trespassed into the house compound of Crl.Rev.Pet.No.1359 OF 2009 3 PW4 bearing Door No.9/287 of Chakkittapara Panchayath, caught hold of her with an intent to outrage her modesty and inflicted injuries on her. For the occurrence in question, PW4 lodged Ext.P4 First Information Statement before PW3, the Assistant Sub Inspector of Police, Peruvannamuzhi Police Station. On the basis of Ext.P4 First Information Statement, PW3 registered Ext.P3 FIR for the offences punishable under Sections 447 and 354 of the IPC. PW7 conducted investigation in this case and laid the charge against the accused.
4. Upon receipt of the final report, the learned Magistrate took cognizance of the offences punishable under Sections 447, 323 and 354 of the IPC. After having heard both sides, the charge under the above Sections was framed against the accused. The charge was read over, to which the accused pleaded not guilty.
5. During the trial, PWs1 to 8 were examined and marked Exts.P1 to P5 on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced.
6. After the trial, the learned Magistrate acquitted the accused for the offences punishable under Section 354 of the IPC. However, the accused was convicted and sentenced for the offences punishable Crl.Rev.Pet.No.1359 OF 2009 4 under Sections 323 and 447 of the IPC.
7. PW1 is the Doctor who examined PW4 and issued Ext.P1 wound certificate. In his evidence, PW1 stated that while he was working as medical officer at Perambra on 26.09.2006 at 9.30.p.m., he had examined PW1 and issued Ext.P1 wound certificate. According to him, he has not noted any external injuries on PW1 but the patient has complained of pain on her neck.
8. PW4 stated that on 25.09.2006 at 7.p.m., the accused came to her house and enquired about her husband. When she replied that her husband was not available at home, according to her, the accused caught hold of her neck and strangulated. She further stated that when she cried for help two of her neighbors Ayisha and Janaki came to her house and on seeing them, the accused left the place. She further stated that on the next day she went to the hospital for treatment and subsequently, she went to the police station and lodged Ext.P4 First Information Statement.
9. PW5, Ayisha stated that on the date of occurrence at 7.p.m. she heard a hue and cry from the residence of PW1 and when she went to the place of occurrence, she could see the accused assaulting PW1.
10. On analysing the entire evidence, the learned Magistrate Crl.Rev.Pet.No.1359 OF 2009 5 entered a finding that the prosecution failed to prove that the accused used criminal force against PW4 with an intent to outrage her modesty. At the same time, the trial court entered a finding that the accused trespassed into the residential compound of PW1 and caused hurt to PW4. According to PW4, the accused caught hold of her neck and strangulated her. She would say that there was nail mark on her neck and there was light bleeding from the injury sustained on her neck. Strange as it may sound, the evidence of PW1 would show that he could not find any external injury on the neck of PW1. Thus Ext.P1 wound certificate does not support the alleged injury sustained on PW1's neck.
11. The trial court mainly relied on the oral evidence of PW4 and PW5 and entered a finding that the accused committed the offences under Section 447 and 323 of the IPC. As per Section 447 of the IPC, 'whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend three months, with fine or which may extend to five hundred rupees, or with both'. The term criminal trespass is defined under Section 441 of the Indian Penal Code. Section 441 of the Indian Penal Code is extracted as herein below:
"441. Criminal trespass.-whoever enters into or upon property in the possession of another with intent to commit an Crl.Rev.Pet.No.1359 OF 2009 6 offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidated, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
12. Going by the evidence of PW4 and PW5, there is nothing to indicate that the accused entered into the property of PW1 with an intent to commit an offence or to intimidate, insult or annoy PW1. There is also no evidence to show that the accused entered into the property with her permission, unlawfully remains there with an intent to intimidate, insult or annoy her as defined under Section 441 of the IPC. The trial court entered a finding that the prosecution failed to prove the offence under Section 354 of the IPC beyond doubt. The evidence adduced by the prosecution is not sufficient to prove the offence under Section 323 of IPC also. There is nothing on record to show that the accused voluntarily caused hurt to PW1. To prove an offence under Section 323 of IPC, it is necessary to prove that the accused caused bodily pain, this is for infirmity to PW1 as defined under Section 319 of the IPC. PW1's medical evidence does not support the oral evidence adduced by PW4.
13. Having regard to the facts and circumstances involved in Crl.Rev.Pet.No.1359 OF 2009 7 this case, this Court is of the view that the prosecution has not succeeded in proving the offence punishable under Sections 447 and 323 of the IPC. The accused is entitled to the benefit of doubt. The trial court as well as the appellate court erroneously appreciated the evidence and wrongly convicted and sentenced the accused.
In the result, the criminal revision petition stands allowed. The revision petitioner/accused is found not guilty for the offence punishable under Sections 447 and 323 of IPC and he is acquitted thereunder. Cancelling his bail bonds, this Court directs he be set at liberty. If any fine amount is deposited before the trial court pursuant an interim order passed by this Court, the same shall be refunded to the revision petitioner/accused, in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR JUDGE nak