IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 2251 of 2009 ------------------------------------------------ [ CRA.715/2008 OF THE ADDL. DISTRICT & SESSIONS JUDGE, (ADHOC-III)NORTH PARAVUR CC.352/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA] .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED 1 & 2 ----------------------------------------------------------------------------- 1. JOJI JOHN, S/O.JOHN, NAISSERY VEEDU, VADASSERY BHAGOM, KUNJATTUKARA, EDATHALA, ALUVA EAST VILLAGE. 2. SAIDUMOHAMMED, S/O.MEETHIYAN KAIPPILLIL VEEDU, EAST OF NAD JUNCTION, EDATHALA KARA, ALUVA EAST VILLAGE. BY ADV. SRI.V.K.VEERAVUNNY RESPONDENT(S): RESPONDENT/COMPLAINANT --------------------------------------------------------------------- KERALA STATE REPRESENTED BY THE SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S. GOPINATHAN, J. ------------------------- CRL. R.P. NO. 2251 OF 2009 ------------------------------- DATED THIS THE 30TH DAY OF OCTOBER 2009 O R D E R The revision petitioners are accused Nos.1 and 2 in C.C No. 352 of 2003 on the file of the Judicial Magistrate of First Class-II, Aluva. The Circle Inspector of Police, Kalamassery in Crime No. 23/2003 prosecuted the revision petitioners along with another who was arrayed as 3rd accused for offence under section 379 r/w 34 of IPC. The prosecution case is that at 12 noon on 18-1-2003 while PW3, the de-facto complainant was walking through the Kalamassery Glass Factory road from east to west, the revision petitioners along with the 3rd accused reached there in an auto bearing No. KL7 AB 7305 driven by the 2nd revision petitioner with the first revision petitioner sitting in the back seat right side and the 3rd accused sitting in the back left side of the auto and snatched away the gold chain,which was marked as MO1 worn by PW3. 2. On the basis of the First Information Statement given by PW3 a case was registered by PW6, the Sub Inspector of Police, Kalamassery. Ext.P6 is the F.I.R. After completing CRL. R.P. NO. 2251 OF 2009 2 investigation, chargesheet was laid by PW6, the Circle Inspector of Police before the trial court for offence under Section 379 r/w.34 of IPC. 3. The 3rd accused could not be apprehended. Hence the case against him was split up and re-filed as C.C 1463 of 2008. The revision petitioners pleaded not guilty. They were sent for trial. On the side of prosecution, PW1 to PW6 were examined and Exts.P1 to P6 were marked. The stolen gold chain was marked as MO1. The learned Magistrate on appraisal of evidence arrived a finding of guilty. Consequently the revision petitioners were convicted and sentenced to rigorous imprisonment for one year. Though they preferred criminal appeal No. 715 of 2008 they were not successful. 4. Now assailing the legality, correctnes and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is filed. 5. Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the factum of theft was proved by the testimony of PW3. She CRL. R.P. NO. 2251 OF 2009 3 had identified MO1 as the stolen gold chain but she could not identify the revision petitioners in the box. She had got only a lightning opportunity to identify assailants at the time of occurrence. The evidence of PW5 would show that he arrested the revision petitioners. On interrogation they stated that the gold chain was sold to a jeweller who was examined as PW1. On the basis of the statement so given MO1 was recovered from PW1 on the basis of Ext.P1 recovery mahazer. Ext.P1(A) is the statement of the 2nd revision petitioner. PW2 is the attestor to Ext.P1. The courts below had given reliance to the recovery in finding against the revision petitioners. Having gone through the evidence on record, I find little reason to disturb the concurrent findings of facts arrived by the courts below. I find that prosecution had succeeded in proving the guilt alleged against the revision petitioners. 6. Revision petitioners were aged 25 and 23 on the date of occurrence. Hence reports from the District Probation Officer were called for. The reports of the District Probation Officer would show that revision petitioners were involved in a cattle CRL. R.P. NO. 2251 OF 2009 4 theft before the occurrence of this case and that case was later compounded and it is thereafter the offence alleged in this case was committed. After 2003, no commission of any such offence is reported against the revision petitioners. They are reported to be law abiding persons from poor family. No other bad antecedents were noticed. They are reported to be victims of poor family back ground, guidance and education. The report of the Probation Officer indicates good chance of reformation. In the above circumstances, the Probation Officer recommended to release the revision petitioners under Section 4(1) and (3) of the Probation of Offenders Act 1958. Having heard either side, I find no reason to reject the recommendation of the Probation Officer. Instead of sentencing at once, they shall be given an opportunity to reform themselves and to release them on executing a bond for Rs. 10,000/- for a period of two years with an undertaking to appear and receive sentence as and when called upon. 7. The result, the revision petition is allowed in part. While confirming the conviction under challenge, the sentence is set aside. Instead of sentencing them at once, the revision CRL. R.P. NO. 2251 OF 2009 5 petitioners shall stand released on executing a bond for Rs. 10,000/- with two solvent sureties each for like sum to the satisfaction of the trial court with an undertaking to appear and receive the sentence before the trial court during a period of 2 years. In the meantime revision petitioners shall keep peace, good behavior and conduct. They shall be under the supervision of the Probation Officer. Revision petitioners shall appear before the trial court and execute a bail bond on or before 16-11-2009. P.S.GOPINATHAN JUDGE PKK