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2008 DIGILAW 663 (KER)

Krishnan v. State

2008-10-23

M.SASIDHARAN NAMBIAR

body2008
ORDER M. Sasidharan Nambiar, J. 1. Petitioner was concurrently convicted and sentenced for the offence under S.452, 353, 294(b) of Indian Penal Code. Prosecution case is that on 23/12/2002 PW 1 the Agricultural Officer was at her office. On that day several students had come to the office to get their certificates attested. It was not completed by 1.15 p.m. PW 1 stopped attesting the certificates and disclosed her intention to return after taking meals. Some of the students, whose certificates are yet to be attested, wanted their certificates to be attested before PW 1 left the office for meals. One of the students brought the petitioner an autorickshaw driver to the office. He directed PW 1 to attest the certificate of a particular student before PW 1 leaves the office. When PW 1 disclosed that everything will be done after lunch, petitioner scolded her using abusive language. Hearing it shop owners came there and took petitioner outside. It is alleged that petitioner thereby committed the offence under S.452, 353 and 294(b) of Indian Penal Code. PW 1 lodged the complaint on the next day. Ext. P1 First Information Statement was prepared. Based on Ext. P1 a Crime was registered and after investigation charge was laid which was taken cognizance by Judicial First Class Magistrate, Koyilandy. Petitioner pleaded not guilty. Prosecution examined PWs 1 to 5 and marked Exts. P1 and P2. Learned Magistrate on the evidence found the petitioner guilty of the offences under S.452 and 353 of Indian Penal Code but acquitted of the offence under S.294(b) of Indian Penal Code. Petitioner was sentenced to simple imprisonment for six months and a fine of Rs.2000/- for the offence under S.452 of IPC and simple imprisonment for three months and a fine of Rs.1000/- (Rupees thousand only) for the offence under S.353 of IPC. Petitioner challenged the conviction and sentence before the Sessions Court, Kozhikode in Crl. Appeal No. 33/2006. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that learned Magistrate and learned Sessions Judge misappreciated the evidence and appreciation of evidence was perverse. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that learned Magistrate and learned Sessions Judge misappreciated the evidence and appreciation of evidence was perverse. It was argued that there is material contradictions in the evidence of PW 1 on the one hand that of PW 2 on the other hand and based on that evidence petitioner was convicted. It was also argued that even though prosecution case is that there were several students at the time of the incident, none of them were examined. It was then argued that Investigating Officer was not examined and therefore petitioner could not be proved the contradictions and in such circumstance, Courts below were not justified in convicting the petitioner. It was argued that even if the case is accepted, an offence under S.452 of IPC is not attracted as to constitute an offence under S.452 IPC, there should be a house trespass as provided under S.442 of IPC and the incident took place inside an office room where public have right of entry and therefore there is no trespass and there is no evidence that PW 1 was wrongly restrained by the petitioner and in such circumstance conviction for the offence under S.452 of Indian Penal Code is not sustainable. Learned counsel argued that on the evidence on record conviction for the offence under S.353 of Indian Penal Code also is not sustainable and in any case sentence awarded is excessive. 4. Though learned counsel vehemently argued that there is material contradictions in the evidence of PW 1 and that of PWs 2 and 3, on going through the judgments of the Courts below and going through the depositions, I do not find any material contradictions to disbelieve the prosecution case. In any case appreciation of evidence by the Courts below is not perverse. Even if the evidence of PWs 1 to 3 is reappreciated, I do not find that a different view is to be taken. In any case appreciation of evidence by the Courts below is not perverse. Even if the evidence of PWs 1 to 3 is reappreciated, I do not find that a different view is to be taken. In such circumstance, on the factual finding that petitioner came to the office of PW 1 on that afternoon when PW 1 was about to return to her house to take lunch and petitioner wanted PW 1 to attest one more certificate before leaving and when PW 1 was not prepared and the files from the table were thrown she was scolded as proved by the evidence of PWs 1 to 3 and found by the learned Magistrate and learned Sessions Judge is in accordance with the evidence on record. 5. Then the question is what is the offence made out? As rightly pointed out by the learned counsel appearing for petitioner, ingredients of an offence under S.452 of Indian Penal Code is not made out by the prosecution. S.452 provides that whoever commits house trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished as provided therein. S.442 of Indian Penal Code defines house trespass as whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property. The office of PW 1 is a public office where public has a right of entry. Evidence does not establish that PW 1 was wrongly restrained. At best it could be said that petitioner wanted PW 1 to leave the office for taking lunch only after attesting the document of a particular student for which PW 1 was not prepared. In such circumstance, conviction of the petitioner for the offence under S.452 of Indian Penal Code is not sustainable. But ingredients of an offence under S.353 of Indian Penal Code is established. Therefore conviction of the petitioner for the offence under S.353 is legal. 6. Then the only question is whether the sentence awarded by the learned Magistrate as confirmed by the Sessions Judge is reasonable. 7. But ingredients of an offence under S.353 of Indian Penal Code is established. Therefore conviction of the petitioner for the offence under S.353 is legal. 6. Then the only question is whether the sentence awarded by the learned Magistrate as confirmed by the Sessions Judge is reasonable. 7. S.353 of Indian Penal Code, 1860 provides for a sentence of imprisonment for a term which may extent to two years or with fine or with both. Imprisonment is not mandatory. Considering the nature of the case and the fact that the incident was in 2002 and that too arose on account of the insistence of the petitioner to get a certificate attested by PW 1, before she left the office, interest of justice will be met if the sentence is modified to fine. 8. Revision is allowed in part. Conviction of the petitioner for the offence under S.452 of Indian Penal Code is set aside and petitioner is acquitted of the said offence. Conviction of the petitioner for the offence under S.353 of Indian Penal Code is confirmed. Sentence is modified to a fine of Rs.3000/- and in default simple imprisonment for one month.