Kerala High Court
Retnakaran vs The State Of Kerala on 13 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941
Crl.Rev.Pet.No.3672 OF 2008
AGAINST THE JUDGMENT IN CRA 649/2005 OF ADDITIONAL SESSIONS JUDGE
FAST TRACK COURT III, TRIVANDRUM
AGAINST THE JUDGMENT IN CC 850/1999 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -III,NEYYATTINKARA
REVISION PETITIONER/APPELLANT/ACCUSED (A1 AND A2):
1 RETNAKARAN, S/O. CHELLAPPAN NADAR
VALIYAVILA VEEDU, NOKJP VIII/70,,
KANJIRAMKULAM DESOM, KANJIRAMKULAM VILLAGE.
2 SUJATHA D/O.CHELLAM,
HOUSE NO.KJP VIII/70, KANJIRAMKULAM DESOM,
KANJIRAMKULAM VILLAGE.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
RESPONDENT/STATE:
THE STATE OF KERALA, REPRESENTED BY THE
DIRECTOR GENERAL OF PROSECUTION,
HIGH, COURT OF KERALA, ERNKULAM.
SRI.B.JAYASURYA,SR. PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
13.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.3672 OF 2008 2
ORDER
Revision Petitioners are accused Nos.1 and 2 in Crime No.147/1999 of Kanjiramkulam police station for the offences punishable under Sections 447 and 427 r/w. Section 34 of the Indian Penal Code(hereinafter referred to as 'the IPC').
2. By judgment dated 02.09.2005, Judicial 1st Class Magistrate Court-III, Neyyattinkara convicted and sentenced the accused to undergo imprisonment for two months each for committing offence punishable under Section 447 r/w.34 IPC and also to undergo simple imprisonment for one year for the offence punishable under Section 427 r/w.34 IPC. The above sentences were ordered to run concurrently.
3. Challenging the judgment of the trial court, accused Nos.1 and 2 preferred Crl. Appeal No.649/2005 before the Additional Sessions Court (fast Track Court-III), Thiruvananthapuram. By judgment dated 25.04.2008, the learned Additional Sessions Judge, dismissed the appeal confirming the conviction and sentence imposed by the court below. Feeling aggrieved, the accused preferred this revision.
4. Prosecution case in brief is as hereunder:-
Accused Nos.1 and 2, in furtherance of their common Crl.Rev.Pet.No.3672 OF 2008 3 intention, criminally trespassed into the property of PW4 comprised in Re.Sy.No.186/24 of Kanjiramkulam village on 18.07.1999, at about 03.00 pm. While so, they were armed with pick-axe/spade and iron bars and demolished the compound wall of the said property, causing a loss of Rs.20,000/- and thereby committed the aforesaid offences.
5. When the case came up for evidence, on the prosecution side, PW1 to PW8 were examined and marked Exts.P1 to P5. MO1 is also identified and marked. On closing the evidence of the prosecution, accused were questioned under section 313 Cr.P.C. They denied their complicity in the case. Ext.D1 is marked from the defence side.
6. Heard the learned Public Prosecutor. Perused the lower court records.
7. PW2 is the sole eye witness to the occurrence. PW1 is the defacto complainant who is the husband of PW4. PW7 is the previous owner of the property who transferred the same as per Ext.P2 sale deed to PW4. PW5 is the village officer who stated that he issued Ext.P4 report in respect of the property in dispute.
Crl.Rev.Pet.No.3672 OF 2008 4
8. Ext.P1-FIS was lodged by PW1. PW6 recorded Ext.P1. PW8 is the Sub Inspect of of Police, who conducted the investigation and registered Ext.P5-FIR for the offences punishable under Sections 447 and 427 r/w.Section 34 IPC against accused Nos.1 and 2 in this case. MO1 is the brick smeared with cement seized form the spot.
9. On going through the evidence of PW2, it is clear that accused Nos.1 and 2 were residing immediately on the northern side of the compound wall demolished by them. It has come out in evidence that PW7 purchased the said property comprised in Sy.No.186/24 from the 1st accused as per a valid decree passed by a competent court of jurisdiction. Ext.P2 sale deed inter alia would show that there was an agreement for sale executed between the 1st accused and PW7 with respect to 12 cents of property. The 1st accused did not execute the sale deed as agreed to. Thereupon, PW7 filed a suit before the Principal Sub Court, Thiruvananthapuram, for specific performance of contract. The suit was ultimately decreed. Despite the decree, the 1st accused did not execute the sale deed as ordered by the court. Hence, in execution of the decree, the court executed the sale deed in favour of PW7. Subsequently, PW7 sold the Crl.Rev.Pet.No.3672 OF 2008 5 property in favour of PW4 by Ext.P2 document.
10. Going through the evidence on record, it would show that earlier, PW4 and PW1 filed an Original Petition before this Court, seeking police protection. In the O.P, this Court passed an order relegating the parties to the civil court for appropriate action. Feeling aggrieved, PW1 and PW4 filed Ext.D1 writ appeal, in which the 1st accused was the 3rd respondent. The Division Bench of this Court directed both parties to obey and respect the decree of the Sub Court in O.S. NO.204/1997, until the terms of the decree is altered in accordance with due process of law. The Division Bench further held that if any application is filed by PW1 and PW4 to enforce the decree, the police shall extent adequate protection to implement the terms of the decree.
11. PW7 adduced evidence to show that he had transferred the property so obtained to PW4 as per Ext.P2 sale deed. PW5- Village Officer stated that he issued Ext.P4 certificate stating that the property where the alleged incident occurred belonged to PW7, the previous owner. Thus, it is clear that PW4 acquired title with respect to 12 cents of property from PW7 as per Ext.P2. PW2 deposed before the court that he saw Crl.Rev.Pet.No.3672 OF 2008 6 the accused demolishing the southern side of the compound wall which was constructed with bricks. He also identified accused Nos.1 and 2 before court. Both the trial court and appellate court analysed the evidence in detail and entered a finding that the accused trespassed into the property owned by PW4 and committed mischief therein.
12. While answering point No.3, the learned Magistrate stated that yet another case was disposed of by the learned Magistrate as C.C. No.846/1999 on identical state of facts whereby accused Nos.1 and 2 were found guilty for the offences punishable under Sections 143, 149, 447 and 427 IPC and convicted and sentenced thereunder. Hence, the learned Magistrate awarded jail sentence to the accused for the offence punishable under Section 447 and 427 IPC. Going by the provisions under the IPC, an offence under Section 447 and 427 IPC are punishable with imprisonment or with fine or with both. Imprisonment is not compulsory for both the offences. Though an averment is made in the judgment that the accused were earlier convicted in C.C. No.846/1999, the said judgment was not exhibited in this case. No charge was framed by the court for enhanced sentence on the basis of previous conviction. Crl.Rev.Pet.No.3672 OF 2008 7 Under the circumstances, mere narration of the fact that the accused was earlier convicted for the offence punishable under Section 143, 149, 447 and 427 IPC on the same set of facts is not sufficient to give enhanced sentence to the accused.
13. Having considered the entire facts and circumstances, this Court is of the view that the incident occurred as a result of civil disputes between the parties. Though the decree passed by the court has become final, accused Nos.1 and 2 has not complied with the decree. In view of the fat that non-compliance of the decree has resulted in trespassing into the property and committing waste therein, this Court is of the view that a lenient view can be taken in the matter of punishment, particularly after a lapse of nearly 15 years from the date of initiation of the case. Instead of awarding imprisonment, this Court is of the view that sentence can be modified as fine. In modification of the sentence awarded, accused Nos.1 and 2 are sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 447 IPC, in default of payment of fine to undergo imprisonment for three months each. In modification of the sentence punishable under Section 427 of IPC, the accused 1 Crl.Rev.Pet.No.3672 OF 2008 8 and 2 are further sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 427 IPC, in default of payment of fine to undergo simple imprisonment for a period of three months each.
14. In the result, the conviction of the revision petitioners under Sections 427 and 447 r/w. Section 34 of the IPC are confirmed. The sentence is modified as herein below:
Accused Nos.1 and 2 are sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 447 IPC, in default of payment of fine to undergo imprisonment for three months each. Accused Nos.1 and 2 are further sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 427 IPC, in default of payment of fine to undergo simple imprisonment for a period of three months each.
The Revision Petition is disposed of, as stated above. The Registry is directed to transmit the lower court records forthwith.
Sd/-
N.ANIL KUMAR JUDGE ajt