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High Court of KeralaSingle JudgePartly Allowed

David, S/o Thomas v. State of Kerala represented by S.I. of Police, North Paravur and State of Kerala represented by Public Prosecutor, High Court of Kerala

Case / Petition Number:Crl.Rev.Pet.No.3357 of 2003

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. D. Rajan
Judgment Date
2015-03-27
Court Decision / Holding
Revision petition partly allowed. The 2nd accused is sentenced to six months’ simple imprisonment under Section 420 r/w 34 IPC and to pay a fine of ₹5,000; in default of payment of the fine, he shall undergo two months’ further simple imprisonment.
Final Disposition
Partly Allowed

Parties to the Case

Appellants / Petitioners

  • David, S/o Thomas

Respondents

  • State of Kerala represented by the S.I. of Police, North Paravur
  • State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. B.N. Shivsankar

Counsels for Respondents

  • • Smt. Madhuben (Public Prosecutor)

Case Synopsis & Summary

David, S/o Thomas, the second accused in CC 751/1997 at Aluva, challenges his conviction under Section 420 read with Section 34 IPC for cheating the victims by promising visas to Muscat. The prosecution’s case traces a scheme wherein A1 allegedly induced PW1 to PW3 and PW7 to part with money by promising employment visas; total amounts paid include ₹8,000 from PW1, ₹3,000 from PW2, and ₹2,500 from PW3, with the revision petitioner present when payments were made. The trial court convicted the second accused under 420 IPC r/w 34 IPC and sentenced him to three years’ rigorous imprisonment and a ₹5,000 fine, with default imprisonment. The Appellate Court dismissed the appeal. In the Kerala High Court revision, the judge examined the legality and propriety of the findings, noting that PW1-3’s primary testimony remained unchallenged in cross-examination, and that the presence of the revision petitioner at payment moments supported common intention. Citing Hari Om v. State of Uttar Pradesh and State of Punjab v. Fauja Singh, the court held that Section 34 IPC can apply where common intention is formed in the course of the occurrence and both accused are liable. While acknowledging the need for proportionate punishment, the court granted leniency due to the petitioner’s age (58) and status, partially allowing the revision and reducing the sentence to six months’ simple imprisonment with a ₹5,000 fine, plus two months’ imprisonment in default. The revision petition is partly allowed, with the conviction sustained and sentence modified.

Provisions of Law Cited

Section 420 IPCSection 34 IPCSection 313 Cr.P.C.

Legal Doctrines & Maxims

  • Doctrine of common intention under Section 34 IPC
  • Proportionality of sentencing (Ram Narain v. State of UP)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends there is no evidence to convict and that the trial court erred in applying Section 34 IPC. He argues there was no prior conspiracy and highlights the petitioner’s age (58) and role as the family breadwinner, urging leniency in sentencing. He asserts the evidence is insufficient to establish common intent and that the order should be corrected by the Revisional Court.

Contentions of Respondents

Prosecution maintains the conviction and sentence were proper. It notes PW1–PW3 were not cross-examined on key points and that the evidence supports common intention under Section 34 IPC. Cites Hari Om v. State of UP and State of Punjab v. Fauja Singh to justify joint liability; argues for upholding the conviction and sentence, with only possible leniency in punishment depending on the circumstances.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Hari Om v. State of Uttar Pradesh[(1993) 1 Crimes 294 (SC)]PositiveCited to support that common intention under Section 34 IPC can be formed during the course of the occurrence.
State of Punjab v. Fauja Singh(1997) 3 Crimes 170PositiveApplied to establish joint liability under Section 34 IPC when an act is done in furtherance of common intention.
Ram Narain v. State of UP[(1973) 2 SCC 86]PositiveUsed to justify proportional sentencing and a plea for leniency based on circumstances.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 27TH DAY OF MARCH 2015/6TH CHAITHRA, 1937** **Crl.Rev.Pet.No. 3357 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRA 659/2001 of ADDL.SESSIONS JUDGE, NORTH PARAVUR DATED 07-10-2003** **AGAINST THE JUDGMENT IN CC 751/1997 of J.M.F.C.-I, ALUVA DATED 06-09-2001** **REVISION PETITIONER(S):** **-----------------------DAVID, S/O. THOMAS, AGED 46 YEARS, KANAMKUDAM VEETTIL, KIZHAKKE POTTA, CHALAKUDY VILLAGE.** ## **BY ADV. SRI.B.N.SHIVSANKAR** **RESPONDENT(S):** **-----------------** **1. STATE OF KERALA REPRESENTED BY THE S.I. OF POLICE, NORTH PARAVUR.** **2. STATE OF KEARLA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **PUBLIC PROSECUTOR ADV. SMT. MADHUBEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-03-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No. 3357 of 2003 ---------------------------------------------Dated this the 27[th] day of March, 2015 ## **ORDER** The revision petitioner is the 2[nd] accused in C.C.No.751/1997 of the Judicial First Class Magistrate Court-I, Aluva, which was charge sheeted by the Sub Inspector of Police, North Parur for offence punishable u/s.420 r/w.34 IPC. 2. The prosecution allegation is that in furtherance of the common intention, the accused 1 and 2 dishonestly induced PWs 1 to 5 and 7 and promised to arrange a Visa for jobs in Muscat and as per the inducement, they paid a sum of ₹21,000/- to the accused, but, they failed to arrange Visa and thereby cheated them. On the basis of information, North Paravur Police registered Crime No. 148/83 and after Crl.R.P. No.3357/2003 2 investigation, laid charge before the Judicial First Class Magistrate Court-I, Aluva. 3. To prove the case, prosecution examined PWs 1 to 8 and admitted Exts.P1 and P2 in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. The trial Court convicted the 2[nd] accused u/s.420 IPC and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of 5,000/- , in default of payment of₹ fine, simple imprisonment for one month. Against that, he preferred Crl.Appeal No.659/2001 before Additional Sessions Court, N. Paravur, which was dismissed. 4. The learned counsel for the revision petitioner contended that there is no evidence in this case to convict the revision petitioner. A wrong appreciation was made by the Courts below invoking S.34 of the IPC and convicted Crl.R.P. No.3357/2003 3 him. The petitioner is now aged 58 years and the sole bread winner of the family and therefore, the illegality is to be rectified by invoking revisional jurisdiction. 5. The learned Public Prosecutor contended that there is no illegality in the findings of the Court below. Pws1 to 3 were not cross examined by the revision petitioner in the trial Court. In the absence of any illegality, no interference is necessary. 6. In order to ascertain the legality and propriety of the findings, I have perused the records for satisfying the correctness of the argument. PW1 gave Ext.P1 statement in which he alleged that A1 approached him by promising that he will arrange a job Visa to Muscat. As per the promise, he paid 8,000/- to A1, but he demanded₹ total 13,000/-. PW1 informed this matter to PWs 2 to 5₹ and they also paid advance amount. When A1 failed to Crl.R.P. No.3357/2003 4 arrange Visa, he filed Ext.P1 at North Paravur Police. Pws2 and 3 stated that they paid ₹3000/- and ₹2500/respectively to A1. The revision petitioner was also present at the time of payment of the above amount. This direct oral testimony of PWs 1 to 3 was not challenged in evidence by cross examination of those witnesses. No reasons are found to disbelieve that version. 7. PW5 also supported the case, but, she was declared as hostile. But, PWs 6 and 7 categorically admitted that they were present at the time of payment of money. According to them, A1 received the amount, the revision petitioner (A2) counted the amount in their presence. The investigation Officer properly conducted the investigation and laid final report before Court. 8. The Apex Court in **Hari Om** v. **State of Uttar Pradesh** [(1993) 1 Crimes 294 (SC)] held that in order to Crl.R.P. No.3357/2003 5 bring a case under section 34, it is not necessary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the course of occurrence. Here, A1 collected the amount by believing that he will arrange Visa to the victims PWs 1 to 5. That money was entrusted to A1 in the presence of the 2[nd] accused, which was counted by him and kept in the custody. It shows the common intention shared by them. In **State of Punjab** v. **Fauja Singh** (1997) 3 Crimes 170 held that if some act is done by the accused person in furtherance of common intention of his co-accused, he is equally liable like his co-accused. Therefore, the evidence of PWs 1 to 3 and 6 and 7 is sufficient to attract Section 34 IPC. Therefore, the conviction passed by the trial Court u/s.420 r/w.34 IPC is only to be confirmed. 9. The learned counsel for the revision petitioner Crl.R.P. No.3357/2003 6 submitted that the trial Court imposed a harsh sentence which was confirmed by the Appellate Court. When an offence is punishable with imprisonment, the trial Court has an adequate discretion in awarding suitable punishment proportionate to the crime. In exercise of this discretion, the Court has to take into consideration several factors such as gravity of the offence, the motive of the offender, the harm caused to the victim, the circumstances under which the offence was committed and the age, character and antecedents of the offender. Here, no previous criminal antecedents were proved against the revision petitioner. In **Ram Narain** v. **State of UP** [(1973) 2 SCC 86] Apex Court held that “the sentence to be appropriate, should, therefore, be neither too harsh nor too lenient.” Considering the age and nature and gravity of the offence, I am of the view that the revision Crl.R.P. No.3357/2003 7 petitioner is entitled to get a leniency in sentence. 10. The revision petitioner is sentenced to undergo simple imprisonment for six months u/s.420 IPC r/w 34 IPC and to pay a fine of 5,000/-, in default of payment of₹ fine, he shall undergo another simple imprisonment for two months. This revision petition is partly allowed. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.3357/2003 8 Crl.R.P. No.3357/2003 9