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2020 Supreme(Ker) 563
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
Sreedharan S/o Kunhikrishnan Nambiar – Petitioner
Versus
State of Kerala Rep. by Public Prosecutor, High Court of Kerala – Respondent
Crl. Rev. Pet. No. 878 of 2007
Decided On : 06-01-2020
Advocate Appeared:
For the Petitioners: Sri. R. Sudhish, Smt. M. Manju.
For the Respondent: Sri. C.N. Prabhakaran.
Important points:
As per the charge-sheet filed by the police, there is no allegation against the petitioner, who is the third accused, that he committed an offence punishable under Section 353 IPC. As per the charge-sheet filed by the police, the offence punishable under Section 353 IPC is alleged only against the first and the second accused in the case.
Headnote:
Indian Penal Code, Section 225B, Section 34, Sections 353 - Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the third accused has filed this revision petition-The petitioner would be now aged more than 60 years-The petitioner committed an offence punishable under Section 225B read with 34 IPC -Imposing a sentence of imprisonment is not mandatory for committing an offence punishable under Section 225B IPC
Statement of facts:
On the basis of Ext.P1 complaint made by PW-1 to the Sub-Inspector, a case was registered as Crime No. 311/2000 of the Nadapuram Police Station. After completing the investigation, final report was filed against accused 1 to 3 for the offences punishable under Sections 341, 353 and 225B read with 34 IPC- The revision petitioner is the third accused in the case C.C. No. 28/2001 on the file of the Court of the Judicial First Class Magistrate, Nadapuram.
Finding of the court:
Conviction and sentence against the petitioner for the offence punishable under Section 353 read with 34 IPC are set aside. The petitioner is found not guilty of the offence punishable under Section 353 read with 34 IPC and he is acquitted of that offence. Conviction of the petitioner for the offence punishable under Section 225B read with 34 IPC is confirmed.
Result: Revision petition is allowed in part
ORDER :
1. The revision petitioner is the third accused in the case C.C. No. 28/2001 on the file of the Court of the Judicial First Class Magistrate, Nadapuram.
2. The prosecution case is as follows: A warrant of arrest had been issued against the petitioner by the Metropolitan Magistrate, Chennai in the case C.C. No. 8709/1998 of that court. The warrant was addressed to the Sub-Inspector, Nadapuram Police Station. The Station House Officer of Nadapuram Police Station had entrusted the execution of the warrant with PW-1, a police constable attached to that police station. On 17.08.2000, at about 10:00 hours, PW-1 and PW-3, the police constables attached to Nadapuram Police Station, reached the house of the petitioner, who is the third accused in this case, for execution of the warrant of arrest against him. On seeing them, the petitioner tried to escape but he was apprehended by PW-1 and PW-3. They arrested him and took him into the private jeep in which they had reached there. Then, a group of persons, including the first and the second accused in the case, obstructed the jeep and forcibly took the petitioner out of police custody and rescued him.
3. On the basis of Ext.P1 complaint made by PW-1 to the Sub-Inspector, a case was registered as Crime No. 311/2000 of the Nadapuram Police Station. After completing the investigation, final report was filed against accused 1 to 3 for the offences punishable under Sections 341, 353 and 225B read with 34 IPC.
4. During the trial of the case, the prosecution examined PW-1 to PW-8 and marked Exts.P1 to P6 documents. On the side of the second accused, DW-1 to DW-3 were examined and Ext.D1 document was marked.
5. The trial court found the first and the second accused guilty of the offences punishable under Sections 341, 353 and 225B read with 34 IPC and convicted them thereunder and sentenced them to undergo simple imprisonment for a period of one month each for the offence under Section 341 IPC and simple imprisonment for a period of one year each for the offence under Section 353 IPC and simple imprisonment for a period of six months each for the offence under Section 225B IPC. The trial court found the petitioner, who is the third accused, guilty of only the offences punishable under Sections 353 and 225B IPC and convicted him thereunder and sentenced him to simple imprisonment for a period of one year for the offence under Section 353 IPC and simple imprisonment for a period of six months for the offence punishable under Section 225B IPC and directed that the sentences shall run concurrently.
6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the petitioner and the first accused preferred Crl. Appeal No. 247/2004 in the Court of Session, Kozhikode. The appellate court confirmed the conviction as well as the sentence against them and dismissed the appeal. Aggrieved by the concurrent findings of guilty, conviction and sentence made against him by the courts below, the third accused has filed this revision petition.
7. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
8. Ext.P2 is the copy of the warrant of arrest issued against the petitioner by the Metropolitan Magistrate, Chennai. Ext.P3 covering letter would show that Ext.P2 warrant of arrest was addressed to the Sub-Inspector of Nadapuram Police Station. The endorsement on Ext.P2 warrant of arrest by the Station House Officer would show that PW-1 was entrusted with the duty of execution of it against the petitioner.
9. PW-1 and PW-3 gave evidence regarding the incident that took place. Their evidence is corroborated by the testimony of PW-4, who was the driver of the jeep in which PW-1 and PW-3 had reached the house of the petitioner. The evidence of PW-1, PW-3 and PW-4 is sufficient to find that PW-1 arrested the petitioner and took him into the jeep.
10. However, there is no evidence to find that the petitioner had used criminal force to PW-1 or PW-3 or made any
