Aneesh vs State of Kerala

K. Ramakrishnan, J.

Second accused in C.C. No. 523/08 on the file of the Judicial First Class Magistrate Court, No-I, Kottayam is the revision petitioner herein.

He was charge sheeted along with first accused by the Sub Inspector of Police, Kottayam East Police Station in Crime No. 175/08 of that police station alleging offences under Sections 448, 427, 323, 294(b) read with Section 34 of Indian Penal Code.

The case of the prosecution in nutshell was that on 23.03.2008 at about 1.15 p.m, both the accused in furtherance of their common intention, criminally trespassed into the reception counter of the office of Aviva Life Insurance Company at Nagampadom and voluntarily caused hurt to CWs 2 to 4 and caused damage to the articles causing a loss of Rs. 10,000/-and abused CWs 2 to 6 with obscene language and thereby, both of them have committed the offence punishable under Sections 448, 427, 323, 294(b) read with Section 34 of Indian Penal Code. The first accused was absconding and second accused alone appeared.

When the revision petitioner appeared before the court below, the particulars of offences were read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P5 were marked on the side of the prosecution. After closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he has been falsely implicated in the case. No defence evidence was adduced on his side.

After considering the evidence on record, the trial court acquitted the revision petitioner for the offence under Section 294(b) of Indian Penal Code, under Section 255(1) of Code of Criminal Procedure, but, found him guilty under Sections 323, 448 and 427 of Indian Penal Code read with Section 34 of Indian Penal Code and convicted him thereunder and sentenced him to undergo simple imprisonment for three months under Section 323 of Indian Penal Code and further sentenced to undergo simple imprisonment for three months under Section 448 of Indian Penal Code and further sentenced to undergo simple imprisonment for one month under Section 427 of Indian Penal Code. Aggrieved by the same, the revision petitioner filed Crl. Appeal No. 533/10 before the Sessions Court, Kottayam which was made over to Additional Sessions Court, Special Judge, Kottayam for disposal and the learned Additional Sessions Judge by the impugned judgment, dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the present revision has been preferred by the revision petitioner - second accused before the court below.

Considering the fact that State is only the respondent, this court felt that the revision can be admitted and can be disposed of today itself after hearing the Counsel for the revision petitioner and the Public Prosecutor. So, the revision petition is admitted and heard and disposed of today itself.

The Counsel for the revision petitioner submitted that PW2 on whose statement the case was registered is not an eye witness and there are discrepancies in the evidence of PWs 1 and 3 regarding the incident and there is discrepancy regarding the time of arrest as well. There is no proper identification of the revision petitioner as the person who had committed the offence. So, the courts below were not justified in convicting the revision petitioner solely relying on the evidence of the officials working in the concern alone without corroboration from the independent witnesses. Further, he had also submitted that the sentence imposed is harsh.

The learned Public Prosecutor supported the concurrent findings of the court below on this aspect.

The case of the prosecution was that on 23.03.2008 at about 1.15 p.m, the revision petitioner along with the first accused criminally trespassed into the reception counter of the office of Aviva Life Insurance Company in which CWs 1 to 6 were working and beat CWs 2 to 4 and caused damage to the articles kept in the office and abused CWs 2 to 6 with obscene language. PW2 who is the manager of the company deposed that he got telephone call from the office on the date of incident that two youngsters trespassed into the office and assaulted the staff and committed mischief by destroying the furniture and immediately he rushed to the spot and saw the accused persons there and broken furniture and immediately police came and took away the accused persons and he gave Ext.P2 statement regarding the incident on the basis of which Ext.P4 First Information Report was registered by PW6 - the Sub Inspector of Police, Kottayam East Police Station. Thereafter, PW6 conducted investigation and he went to the place of occurrence and prepared Ext.P3 Scene Mahazar in the presence of PW5 and another. The injured was taken to hospital and he was seen by PW1 who issued Ext.P1 wound certificate. PW6 questioned the witnesses and recorded their statement and completed the investigation and filed final report. PW3 is the injured and PWs 4 and 5 are the other occurrence witnesses.

The case of the prosecution was that one of the accused urinated in front of the office and that was questioned by the security staff and that provoked the accused persons and they trespassed into the office and assaulted the staff and committed the mischief. PW3, the office boy had deposed that when the accused trespassed into the office, he questioned them and they had beaten him. On hearing the hue and cry of PW3, PW4 came and she had also witnessed the incident. PW5 is also one of the staffs and he had also deposed that he had seen the incident of accused persons including the revision petitioner beating PWs 3 and PW4 had deposed that when the incident was going on, she immediately informed PW2 over phone and as instructed by him, she informed the matter to the police and after some time, PW2 and police came and the accused persons were taken from there. PW6 also deposed that he got telephone message from PW4 and he came to the place of occurrence and saw the accused persons there and took them to the police station and thereafter, he recorded the statement of PW2 and registered a crime and conducted the investigation. The fact that both accused including the revision petitioner were taken from the office from where the incident occurred is not seriously challenged. There is no enmity for PWs 3 to 5 to dispose against the revision petitioner as well. Further, the incident occurred at about 1.15 p.m, from the office of the prosecution witnesses and the probable witnesses will be only the staff of the institution. There is no possibility of any outsider coming there and seeing the incident especially when it was, as deposed by PW2, that it was a holiday. So, under the circumstances, one cannot expect any corroboration from independent witnesses other than the staff working in the office in such cases and the probable witnesses will be only the staff of the institution and there is nothing wrong to rely on their evidence to convict the revision petitioner if it inspires the confidence of the court. When the related witnesses or interested witnesses are the only witnesses available, court must be cautious in evaluating their evidence and there is no bar for relying on their evidence and base that evidence for conviction of the accused persons. So, under the circumstances, courts below were perfectly justified in relying on the evidence of PWs 3 to 6 and PW2 to some extent for the purpose of coming to the conclusion that the revision petitioner had criminally trespassed into their office and assaulted PW3 and caused damage to the articles and thereby, he along with the other accused had committed the offence punishable under Sections 448, 427, 323, 294(b) read with Section 34 of Indian Penal Code and concurrent findings of the court below on this aspect do not call for any interference.

As regard the sentence is concerned, the trial court has sentenced him to undergo simple imprisonment for three months under Section 323 of Indian Penal Code and further sentenced to undergo simple imprisonment for three months under Section 448 of Indian Penal Code and further sentenced to undergo simple imprisonment for one month under Section 427 of Indian Penal Code. This was confirmed by the appellate court as well. There is no case for the prosecution that the revision petitioner is a hardened criminal and involved in any other crime. Further, he was aged only 26 years. Considering the nature of injuries sustained by PW3 and also the nature of damage, this court feels that imprisonment is not mandatory and showing some leniency in sentence will serve the purpose as well. So, the sentence imposed by the court below is set aside and modified as follows:

"The revision petitioner is sentenced to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for 15 days under Section 323 of Indian Penal Code and further sentenced to pay a fine of Rs. 1,000/- under Section 448 of Indian Penal Code in default to undergo simple imprisonment for 15 days and further sentenced to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for one month under Section 427 of Indian Penal Code. Two months time is granted to the revision petitioner to pay the fine amount."

With the above modification of the sentence alone, the revision petition is allowed in part.

Office is directed to communicate this order to the concerned court immediately.