Kerala High Court
Saji vs State Of Kerala on 19 May, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.A.No.846/2008 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
CRL.A.No.846 OF 2008
AGAINST THE JUDGMENT IN SC 469/2006 OF ADDITIONAL SESSIONS COURT
(ADHOC I), ERNAKULAM
APPELLANTS/ACCUSED NOS.1 AND 3:
1 SAJI
S/O FRANCIS, EAREZHIL VEEDU,
VIDAKKUZHA KARA, THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT.
2 MANOJ, S/O. KARUNAKARAN NAIR
MANAKKAL VEEDU,
VIDAKKUZHA KARA,
THRIKKAKARA NORTH VILLAGE,
ERNAKULAM DISTRICT.
BY ADV. SRI.LIFFY P. FRANCIS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.846/2008 2
JUDGMENT
Dated this the 19th day of May 2020 The above Criminal Appeal is filed against the conviction and sentence imposed by the Additional Sessions Judge (Adhoc- I), Ernakulam in S.C No.469/2006. The above case is chargesheeted by the Sub Inspector of Police, Binanipuram against the appellants and another alleging the offence punishable under Sections 452, 427, 308 and 506(ii) R/W 34 IPC. The appellants are the 1st and the 3rd accused. The 2nd accused is no more and his case was abated from the lower court itself.
2. The prosecution case is that on 7.3.2006 at 2.00 pm the accused in furtherance of their common intention to intimidate the shop owners, causing them bodily hurt and mischief, came in a motor cycle and trespassed on shop No.XI/231 named as Johnson Stationeries. The first accused with a chopper intimidated CW1 and other employees of the shop, causing fear of death and brandished the chopper, causing injury on his right elbow and thereby attempted to commit culpable homicide. The accused also caused damage to the motor cycle of CW1 and other articles in the shop causing a loss of Rs.3,000/-. The first accused then trespassed on the Koikkara CRL.A.No.846/2008 3 Stores run by CW3, damaged an electronic balance and other articles causing a loss of Rs.20,000/-. The accused then caused mischief in the shop of CW2 causing damage to the vessels to the tune of Rs.1,500/-. Then the accused destroyed the fruits in the shop of CW4 causing loss of Rs.1,000/-. The first accused then entered the supermarket and damaged the coin phone and other articles, causing loss of Rs.6,000/-. The articles of Pollayil Stores run by CW6 were also damaged causing a loss of Rs.2,500/-. The accused then broke the front glass of the autorickshaw of CW7, causing loss of Rs.2,000/-. Thus according to the prosecution the total estimated loss sustained is Rs.36,000/-.
3. To substantiate the case, the prosecution examined PWs1 to PW17. Exts.P1 to P16 are the exhibits. MO1 is the material object marked. Exts.D1 to D4 are the defence documents. After going through the evidence and the documents, the trial court found that the accused has not committed any offence under Section 308 IPC. The lower court convicted the appellants under Sections 452, 427 and 506(ii) IPC. The accused are sentenced to undergo simple imprisonment for two years and a fine of Rs.1,000/- each and in default of payment of fine to undergo simple imprisonment for one month each for the offence under Section 452 IPC. CRL.A.No.846/2008 4 They are sentenced to undergo simple imprisonment for six months each for the offence under Section 427 IPC. The accused are sentenced to undergo simple imprisonment for two years each for the offence under Section 506(ii) IPC. There is a direction to run the sentence concurrently. Set off was also granted. Against the conviction and sentence imposed by the lower court, this Criminal Appeal is filed.
4. Heard the learned counsel for the appellants and the learned the learned Public Prosecutor.
5. The learned counsel for the appellants submitted that the evidence adduced by the prosecution is not enough to convict the appellants under Section 452, 427 and 506(ii) r/w 34 IPC. According to the learned counsel, the evidence adduced by the prosecution is unrealiable. The counsel also submitted that, if this Court finds that the offence is made out in this case, the sentence imposed may be reduced substantially and they may not be directed to go to jail at this distance of time. The alleged offence in this case was happened on 7.3.2006.
6. The learned Public Prosecutor submitted that, the prosecution proved the offence under Section 452, 427 and 506(ii) r/w 34 IPC. The accused was actually doing rowdyism and attacked the shops and committed mischief in the shops CRL.A.No.846/2008 5 without any reason. Therefore, the learned Public Prosecutor supported the conviction and sentence imposed by the trial court.
7. In this case, PW1 is a person conducting a shopping complex in the Alangad market. He deposed that the accused came to shop and broke the telephone coin box. Then they broke the jar in the shop and proceeded to the next shop . The evidence of PW2, PW3, PW4 and PW5 are similar. All of them made evidence to the effect that the accused entered the shops and committed mischief. The other shop owners were also examined and they also deposed in the same line. The witnesses have uniformly spoken that, they were afraid on seeing the accused brandished with the chopper. Hence offence under Section 506(ii) IPC is made out. There is also evidence to show that, the accused committed mischief. The oral evidence of the prosecution case is more than enough to prove the offence under Section 427 IPC. Eventhough the learned counsel for the appellants argued that Section 452 IPC is not made out. I think Section 452 IPC is also made out in this case because the ingredients to attract Section 452 IPC is house trespass after preparation for hurt, assault or wrongful restraint. In this case, the learned counsel for the appellants submitted that there was no house trespass. The CRL.A.No.846/2008 6 house trespass is defined under Section 452 IPC and criminal trespass is defined under Section 441 IPC. Section 441 of IPC says that whoever enters into or upon property in the in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, it amounts to criminal trespass. I cannot say that, from the evidence adduced by the prosecution there is no criminal trespass. If there is criminal trespass, the action of the accused amounts to house trespass. In this case if there is house trespass, the action of the accused amounts to Section 452 IPC. Hence the offence under Section 452 IPC is also proved.
8. Hence according to me, the prosecution is able to prove the offences under Section 452, 427 and 506(ii) r/w 34 IPC against the appellants. Therefore the conviction against the appellants under Sections 452, 427 and 506(ii) r/w 34 IPC is confirmed.
9. Now I am turning to the sentence imposed by the lower court. The incident in this case was happened on 7.3.2006. Now about 14 years over after the alleged incident. At this stage, I think it will be injustice to sent these appellants to jail. But it is a fact to be noted that, the accused committed mischief and also committed the offence under CRL.A.No.846/2008 7 Sections 452 and 506(ii) IPC. Therefore, I think that the appellants should compensate the affected persons, who are examined in this case and who adduced evidence regarding the mischief committed to their property. In the final report, it is stated that the total damages estimated is Rs.36,000/-. According to me, the appellants can be sentenced under Section 452 IPC to undergo sentence till rising of court and to pay a fine of Rs.3,000/- each. As far as offence under Section 427 IPC is concerned, the appellants can be directed to pay a fine of Rs.10,000/- each. As far as under Section 506(ii) IPC is concerned, the appellants can be sentenced to pay a fine of Rs.2,000/-.
10. Hence this Criminal Appeal is allowed in part. The conviction imposed on the appellants under Sections 452, 427 and 506(ii) r/w 34 IPC are confirmed. The sentence imposed by the lower court is set aside. The appellants are directed to undergo imprisonment till rising of the court and to pay a fine of Rs.3,000/- each under Section 452 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for one month. The appellants are sentenced to pay a fine of Rs.10,000/- each under Section 427 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for one month. The appellants CRL.A.No.846/2008 8 are sentenced to pay a fine of Rs.2,000/- each under Section 506(ii) IPC and in default of payment of fine, the appellants are directed to undergo simple imprisonment for one month. If the fine amount is realised, an amount of Rs.10,000/- is to be paid to PW14. The balance amount should be released equally to the other prosecution witness, who sustained damages.
Hence this Criminal Appeal is allowed in part. The amount already deposited by the appellants can be adjusted to the amount now ordered as per this judgment.
P.V.KUNHIKRISHNAN JUDGE ab