State of Kerala v. Mohanraj, Jagadeesh, Venkitesh, Ganesh and Sankar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937** ## **CRL.A.NO. 1214 OF 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN CRA NO.82/2002 OF ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA DATED 07-03-2003** **-----------------------------------** ## **APPELLANT(S)/COMPLAINANT:** **------------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUNNAR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N.SURESH** **RESPONDENT(S)/ACCUSED: ----------------------** **1. MOHANRAJ, S/O.KALIMUTHU, HOUSE NO.IX/3272, MUNNAR PANCHAYATH,** **MUNNAR KARA, K.D.H. VILLAGE. 2. JAGADEESH, S/O.KALIMUTHU, HOUSE NO.IX/3272, MUNNAR PANCHAYATH,** **MUNNAR KARA, K.D.H. VILLAGE. 3. VENKITESH, S/O.KALIMUTHU, HOUSE NO.IX/3272, MUNNAR PANCHAYATH,** **MUNNAR KARA, K.D.H. VILLAGE. 4. GANESH, S/O.KALIMUTHU, HOUSE NO.IX/3272, MUNNAR PANCHAYATH,** **MUNNAR KARA, K.D.H. VILLAGE. 5. SANKAR, S/O.RAMASWAMY, HOUSE NO.II,MELMARAVAR THERUVU, TOWN BHAGAM,BODINAYKANNOOR DISTRICT.** **R1 TO 5 BY ADV. SRI.K.REGHU KOTTAPPURAM** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **CR** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1214 of 2004 ---------------------------------Dated this the 19[th] day of February, 2016** ## **J U D G M E N T** This appeal is preferred by the State of Kerala against the judgment in Criminal Appeal No.82 of 2002 of the Additional Sessions Judge (Adhoc-I), Thodupuzha for enhancing the sentence imposed by the appellate court. Respondent nos.1 to 5 were charge sheeted in C.C. No.68 of 1999 before the Judicial First Class Magistrate Court, Devikulam for having committed the offences punishable under Secs.342, 348, 365 and 323 read with Sec.34 of the Indian Penal code. The charge against them is that on 05.05.1998 at 11.00 a.m., accused nos.1 to 5 kidnapped one Krishnan (PW1) from House No.3272 in Ward No.IX of Munnar Panchayath, KDH village. The accused persons wrongfully confined him, attempted to obtain signature in stamp papers and caused hurt to him and thereby committed the aforesaid offences. Munnar Police registered the crime and after investigation, laid charge before the Judicial First Class Magistrate Court, ## Crl. Appeal No.1214 of 2004 2 Devikulam. 2. During trial, prosecution examined PW1 to PW12 as witnesses and marked Exts.P1 to P10. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. They examined DW1 to DW3 and marked Ext.D1 and D2. After analysing the evidence, the learned Magistrate acquitted the accused under Secs.323, 348 and 365 read with Sec.34 of the Indian Penal Code. But, the learned Magistrate convicted the accused under Sec.342 of the Indian Penal Code and sentenced them to simple imprisonment for three months and fine of Rs.1,000/each. In default of payment of fine, simple imprisonment for two months. It was also directed that if the fine amount is recovered from the accused, Rs.2,000/- shall be paid to PW1 as compensation. Against that, the accused preferred Criminal Appeal No.82 of 2002 before the Additional Sessions Judge (Adhoc-I), Thodupuzha, where, the conviction under Sec.342 was confirmed and modified the sentence. Being aggrieved by that this appeal for Crl. Appeal No.1214 of 2004 3 enhancing the sentence. 3. Section 340 IPC defines wrongful confinement. Wrongful confinement is a form of wrongful restraint. The essential ingredients are (i) Wrongful restraint of a person (ii) the restraint must be to prevent that person from proceeding beyond certain circumscribing limits beyond which he has a right to proceed. Apex Court in **Raju Pandurang Mahale v. State of Maharashtra [AIR 2004 SC 1677]** held that there must be total restraint and not a partial one. Therefore, I am of the opinion that a physical blockade of a person either by encirclement in a manner to prevent that person from proceeding beyond encircled area or a complete blockade amounts to wrongful restraint and wrongful confinement. 4. According to Sec.377 of the Code of Criminal Procedure, the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. Crl. Appeal No.1214 of 2004 4 When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. Here, the allegation is that accused nos.1 to 5 wrongfully confined PW1 on 05.05.1998 at 11.00 a.m. till 6.00 p.m. and caused hurt to him with an intention to obtain his signature. Ext.P2 is the First Information Statement given by PW2 and Ext.P4 is the First Information Report registered by the Munnar Police. PW1, in his Ext.P1 statement, stated that the accused took him in wrongful custody. Analysing the evidence of PW1 to PW3, it is clear that the accused in the above case wrongfully confined PW1. 5. The Sub Inspector recorded Ext.P2 statement and registered the case. PW8 who is the wife and PW9 son of PW1 arrived at the place of occurrence on the ## Crl. Appeal No.1214 of 2004 5 basis of the information. PW10 was present at the time of giving statement by PW1. PW11 conducted part of the investigation in this case. PW6 attested Ext.P3 mahazar which was prepared by PW11. In this context, I have examined the evidence of DW1 to DW3 and Exts.D1 and D2 and it is unbelievable and the courts below discarded it. I find no illegality in it. Analysing the evidence of PW1 to PW11, it would show that PW1 was wrongfully confined as alleged by the prosecution. The trial court and the appellate court believed the oral and documentary evidence and convicted the accused under Sec.342 of the Indian Penal Code and I find no illegality in the above finding. 6. According to Sec.386(c) of the Code of Criminal Procedure, the appellate court can enhance the sentence after perusing the record and hearing the appellant or his pleader which reads as follows:- ## (c ) in an appeal for enhancement of sentence, (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or Crl. Appeal No.1214 of 2004 6 (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; 7. It appears that no grounds are highlighted by the State to interfere in this case to enhance the sentence. The primary factor to be considered under the first proviso of Sec.386 is that sentence shall not be enhanced unless the accused has had an opportunity showing cause against such enhancement which is already included under Sec.377(3) of the Cr.P.C. The powers highlighted in case of an appeal for enhancement are almost same powers as described in the above section in respect of an appeal against the conviction. Here, an additional power to enhance or reduce has been given to the appellate court. If a person is found guilty and if a substantial punishment has been given for the offence normally, there should be no interference by the appellate court. But at the same time, interference will be justified when the sentence is manifestly inadequate or unduly dealing in the facts and circumstances of the case. Crl. Appeal No.1214 of 2004 7 Moreover, failure to impose proper sentence may result in miscarriage of justice. At that time also, interference will be justified. ## 8. Apex Court in **Kodavandi Moidean Alias Baputty v. The State of Kerala (1973 Supreme Court Cases (Cri.)369)** held as follows: (6) Mr. Bisaria, appearing as amicus curie counsel, urged on behalf of the appellant that the interference by the High Court in the matter of sentence was not justified. Having considered the findings regarding the guilt of the appellant and the circumstances under which he stabbed the deceased, as also the reasons given by the two courts regarding the sentence, we are not inclined to agree with the learned counsel that in the particular circumstances of this case, the High Court was not justified in enhancing the sentence. It is no doubt true that the question of a sentence is a matter of discretion and when that discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. If a substantial punishment has been given for the offence of which a person is found guilty, after taking due regard to all the relevant circumstances, normally there should be no interference by an appellate court. On the other hand, interference will be justified when the sentence is manifestly inadequate or unduly lenient in the particular circumstances of a case. The interference will also be justified when the failure to impose a proper sentence may result in miscarriage of justice. See. Bed Raj v. The State of Uttar Pradesh and the recent judgment in Shiv Govind v. The State of Madhya ## Crl. Appeal No.1214 of 2004 8 Pradesh.” ## Another decision in **Shiv Govind v. The State of Madhya Pradesh (1972 Supreme Court Cases (Cri.)** ## **549** the Apex Court held as follows **:** 9. It seems clear to us that the High Court had overlooked the principles, laid down by this Court repeatedly, which should govern the exercise of powers of the High Court to enhance sentences imposed by Trial Court. In Bed Raj v. The State of Uttar Pradesh this Court observed at pages 588-589.: “ A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; See for example the observations in Dalip Singh v. State of Punjab, 1954 SCR 146, 156 and Nar Singh v. State of Uttar Pradesh (1955) 1 SCR 238, 241. In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. In our opinion these principles have not been observed. It is impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate. It he circumstances, bearing all the consideration of this case in mind, we are of opinion that the appeal ( which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored.” ## 9. The offence alleged against the accused is ## Crl. Appeal No.1214 of 2004 9 under Sec.342 of the Indian Penal Code. In the judgment, the appellate court observed that the victim and the respondents are close relatives and they are leading a peaceful life. If that be the position, the powers enumerated under Sec.386 Cr.P.C. for enhancement of the sentence at this stage is unsustainable in law. Therefore, the sentence imposed by the appellate court to pay a sum of Rs.2,000/- under Sec.342 IPC is confirmed. But default sentence was not made by the appellate court. Hence, I modify the sentence as follows: Accused nos.1 to 5 are sentenced to pay a fine of Rs.2,000/- (Rupees two thousand only) each, in default of payment of fine, simple imprisonment for two months. This appeal is disposed of with the above modification. **==> picture [29 x 13] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/-<br>**----- End of picture text -----**<br> **P.D. RAJAN, JUDGE** / True Copy / NS/22/02/2016 P.A. To Judge