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2024 DIGILAW 1159 (KER)

P. P. SANAL S/O CHANDRAN v. STATE OF KERALA

2024-09-10

A.BADHARUDEEN

body2024
ORDER 1. Criminal Revision Petition No. 382/2024 has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’ hereinafter) and the revision petitioner is the accused in C.C. No. 632/2015 on the files of the Judicial First Class Magistrate Court-II, Kannur, arose out of Crime No. 163/2015 of Irikkur Police Station, Kannur. He assails conviction and sentence imposed by the learned Magistrate and its confirmation by the learned Sessions Judge, Thalassery, as per judgment in Crl. A. No. 283/2019, dated 3.2.2024. 2. The parties in Crl. Rev. Pet. No. 382/2024 will be referred as ‘the prosecution’ and ‘the accused’ hereinafter, for easy reference. 3. Heard the learned counsel for the accused and the learned Public Prosecutor, in detail. Perused the relevant records. 4. Here, the prosecution allegation is that, the accused herein committed offences punishable under Sections 457 and 354 of the Indian Penal Code (for short, ‘the IPC’ hereinafter). In a nutshell, the allegation is that, at about 1.00 a.m. on 17.3.2015, the accused committed lurking house-trespass by night and trespassed upon the house of the de facto complainant, having building No. PGP X/45, on removing the roof tiles. Thereafter, he lifted the nighty of the de facto complainant, with intention to outrage her modesty and thereby, the modesty of the de facto complainant was outraged. On this premise, the prosecution alleges commission of the above offences. 5. When final report filed after investigation in this crime, the trial court framed charge for offences punishable under Sections 457 and 354 of the IPC and proceeded with trial. During trial, PW1 to PW6 were examined and Exts.P1 to P6 were marked. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. and provided opportunity to him, to adduce evidence. But no defence evidence adduced. The trial court appreciated the evidence and found that the accused was guilty for the offences under Sections 457 and 354 of the IPC. Accordingly, he was sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs.5,000/-for the offence punishable under Section 457 of the IPC and in default of payment of fine, rigorous imprisonment for a period of one month was imposed. Accordingly, he was sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of Rs.5,000/-for the offence punishable under Section 457 of the IPC and in default of payment of fine, rigorous imprisonment for a period of one month was imposed. For the offence under Section 354 of the IPC, rigorous imprisonment for a period of 4 months and fine of Rs.5,000/-was imposed and in default of payment of fine, rigorous imprisonment for a period of one month also was imposed. Although appeal had been filed challenging the said conviction and sentence, the learned Sessions Judge also concurred the finding of the trial court. 6. The learned counsel for the accused argued at length to convince this Court that the trial court and the appellate court failed to appreciate the evidence and ignored the contradictions in the evidence of PW1. He also argued that, going by the deposition of PW1, even though the accused was booked as per the version of PW1, in the early morning on 17.3.2015, the arrest was recorded only at 8.30 p.m. Therefore, the prosecution case is in the midst of doubts and therefore, the accused is entitled to get acquittal. 7. The learned Public Prosecutor strongly opposed interference in the concurrent verdicts on the submission that the evidence available as that of PW1, supported by the evidence of PW2 to PW6 and Exts.P1 to P6, the prosecution allegation as to commission of offences punishable under Sections 457 and 354 of the IPC, by the accused, is well established. 8. Having considered the rival submissions, I have gone through the verdicts under challenge with a view to find out any perversity or absolute illegality to interfere with the conviction and sentence imposed by the trial court. On perusal of the verdicts, it is discernible that, the prime witness to prove the prosecution allegation, is none other than the de facto complainant, who got examined as PW1. PW1 deposed that, on 16.3.2015, she was sleeping at the bedroom along with her 2 years old child after dinner, at about 1.00 a.m. on 17.3.2015, she felt that someone was touching on her legs. She pulled back her legs and continued her sleep. PW1 deposed that, on 16.3.2015, she was sleeping at the bedroom along with her 2 years old child after dinner, at about 1.00 a.m. on 17.3.2015, she felt that someone was touching on her legs. She pulled back her legs and continued her sleep. Later, she understood that somebody lifting her nighty and suddenly, she woke up and found that it was the overt acts, at the instance of her neighbour Sanal, in the light, available at his hands. When she shouted, the accused ran away through the central hall and went out through the door of the kitchen. Hearing the sound, her parents also reached. Thereafter, it was noticed that, there was a wooden pole kept slanting near the latrine and three tile roofs near the side of the kitchen were removed. This is the way in which, PW1 supported commission of offences punishable under Sections 457 and 354 of the IPC, by the accused. Though PW1 was cross examined, nothing extracted to disbelieve the version of PW1. No material contradiction also to be found in the evidence of PW1, though it is argued by the learned counsel for the accused that, there are material contradictions in the evidence of PW1. PW2, the father of PW1 also supported the version of PW1 and deposed about the escape of the accused through the kitchen door after reaching the central hall. 9. It could be seen that, PW3 and PW4 are the witnesses to Ext.P2 mahazar and they admitted their signatures in Ext.P2. In this case, PW6 recorded First Information Statement marked as Ext.P1 and he supported the same and registration of Ext.P4 FIR. He also supported the investigation and recording of statements. Further, he also added Section 354 of the IPC, after deleting Section 354A(1) of the IPC. The ownership of the house, where the occurrence took place, was proved through PW5, the Secretary of Padiyur Grama Panchayath and Ext.P3, as per which, the house was owned by PW2, who is none other than the father of PW1. 10. On reading the materials available, it could be gathered that, the ingredients to attract offences under Sections 457 and 354 of the IPC, were established by the prosecution beyond reasonable doubt and accordingly, trial court and the appellate court concurrently found that the accused committed offences punishable under Sections 457 and 354 of the IPC. 10. On reading the materials available, it could be gathered that, the ingredients to attract offences under Sections 457 and 354 of the IPC, were established by the prosecution beyond reasonable doubt and accordingly, trial court and the appellate court concurrently found that the accused committed offences punishable under Sections 457 and 354 of the IPC. Therefore, the concurrent verdicts of conviction do not require any interference by exercising power of revision. 11. At the time of admission hearing and subsequent hearing of this revision petition, it was noticed that, the trial court as well as the appellate court failed to impose the statutory minimum punishment provided for the offence under Section 354 of the IPC and accordingly, this Court took suo motu revision to address the illegality and Crl. R.C. No. 5/2024 was registered accordingly. Notice was served to the accused, who is arrayed as 3rd respondent in Crl. R.C. No. 5/2024. Soon the earlier counsel, Adv. Sri. Cibi Thomas relinquished vakalath and fresh vakalath filed for the accused. 12. Coming to the sentence, it is discernible that, trial court imposed rigorous imprisonment for 6 months and payment of fine of Rs. 5,000/- for the offence punishable under Section 457 of the IPC and in default of payment of fine, rigorous imprisonment for a period of one month was imposed. Similarly, for the offence under Section 354 of the IPC, the accused was sentenced to undergo rigorous imprisonment for a period of 4 months and to pay a fine of Rs. 5,000/- and on failure to pay the fine amount, rigorous imprisonment for a period of one month also was imposed, allowing concurrent running of the substantive sentence. 13. In this connection, it is relevant to note that for the offence punishable under Section 354 of the IPC, the minimum sentence provided is imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine, after the 2013 amendment. For the offence under Section 457 of the IPC, the punishment provided is imprisonment of either description for a term which may extend to five years, and shall also be liable to fine and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years. For the offence under Section 457 of the IPC, the punishment provided is imprisonment of either description for a term which may extend to five years, and shall also be liable to fine and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years. As far as the sentence imposed by the trial court and confirmed by the appellate court is concerned, sentence imposed for the offence under Section 457 of the IPC, is within the statutory limit and therefore, no interference is called for. 14. Now, the question poses for consideration is; can a criminal court impose sentence of imprisonment less than minimum provided as per penal provisions? No doubt, when statute provides a minimum sentence, it is the duty of the court to impose the minimum sentence without any reduction, since the court has no discretion to reduce a sentence less than the statutory minimum. Therefore, a criminal court has no discretion to impose a sentence less than the minimum provided by the penal statute. If so, imposition of 4 months imprisonment for the offence under Section 354 of the IPC, is perse illegal and the same would require interference. 15. In view of the discussion, the conviction imposed by the trial court and confirmed by the appellate court for the offences under Sections 457 and 354 of the IPC, is confirmed. The sentence imposed by the trial court for the offence punishable under Section 457 of the IPC and confirmed by the appellate court also is confirmed. 16. Since statutory minimum sentence not imposed for the offence punishable under Section 354 of the IPC, notice was issued to the SHO with direction to the accused to appear in person. It has been submitted that the accused has been in jail in connection with another crime. In such contingency, as directed, the accused is produced today through video conferencing from Sub Jail, Koothuparamba and he was heard regarding imposition of minimum punishment. Though the accused sought for leniency, when the trial court as well as the appellate court failed to impose the minimum sentence, suo motu revision, i.e. Crl. R.C. No. 5/2024, stands allowed to impose minimum punishment not less than one year for the offence under Section 354 of the IPC. 17. In the result, Crl. Rev. Pet. No. 382/2024 is dismissed, while allowing Crl. R.C. No. 5/2024, stands allowed to impose minimum punishment not less than one year for the offence under Section 354 of the IPC. 17. In the result, Crl. Rev. Pet. No. 382/2024 is dismissed, while allowing Crl. R.C. No. 5/2024. Consequently, the rigorous imprisonment imposed by the trial court and confirmed by the appellate court for the offence punishable under Section 354 of the IPC, is revisited and enhanced for a period of one year. The accused also shall pay fine of Rs. 5,000/- and in default of payment of fine, he shall undergo rigorous imprisonment for one month. 18. The order suspending sentence and granting bail to the accused, stands vacated, with direction to the trial court to execute the same, as per law, forthwith. 19. Registry is directed to forward a copy of this common order to the learned Magistrate, who passed verdict in C.C. No. 632/2015 on the files of the Judicial First Class Magistrate Court-II, Kannur, to alert her to be more careful while imposing sentence and not to impose less punishment than the statutory minimum, in future.