IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 Crl.Rev.Pet.No. 1620 of 2004(B) --------------------------------------------- CRA.1/1998 of ADDITIONAL DISTRICT & SESSIONS (AD-HOC) COURT, FAST TRACT COURT-II, PATHANAMTHITTA CC.19/1997 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.1 --------------------------------------------------------------------------- M.C.M.KHAN @ APPI, S/O. SHANAVAS MADEENA MANZIL, ANAPPARA, KUMBAZHA MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK. BY ADVS. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANAKULAM. BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.R.P.No.1620 of 2004 ---------------------------------------------------- Dated this the 26th day of August, 2011 ORDER The first accused in C.C.No.19 of 1997 on the file of the Chief Judicial Magistrate Court, Pathanamthitta is the revision petitioner. He was convicted for offences punishable under Sections 457 and 380 read with Section 34 IPC and was sentenced to undergo R.I. for 1 ½ years and to pay fine of Rs.500/- for the offence under Section 457 IPC and R.I. for 2 years and to pay fine of Rs.500/- for the offence under Section 380 IPC. It was confirmed by the Additional Sessions Judge (Ad hoc), Fast Track, Pathanamthitta. The petitioner challenges the said conviction and sentence in this revision. 2. The case of the prosecution is that P.W.1 and his family members had left their house at about 11 AM on 30.9.1996 after locking the house. They went to Vallikkavu Ashram in Kollam district and they returned to their house only in the early morning of 2.10.1996. They opened and entered the house. Then it was noticed that the household articles were thrown here and there. The almirah was lying open. On further examination, it Crl.R.P.No.1620 of 2004 2 was found that the door of the kitchen was forcibly broken open by using some object from outside. The broken latches/bolt was seen there. The door leading to the dining hall was also seen forcibly opened. On further examination, it was found that the gold ornaments kept in the almirah were missing. It indicated that thief/thieves had broken open the doors mentioned above and trespassed in to the house and committed theft of gold ornaments and also VCR, tape recorder etc. The first information statement was given by P.W.1 on 3.10.1996 at about 11 AM based on which the FIR was registered by P.W.9. 3. P.W.10, the Circle Inspector and his policemen were on patrol duty during the night of 8.10.1996. The petitioner herein (first accused -A1) and A2 were found in the premises of the private bus stand at Pathanamthitta. On seeing the police party they were jittering and trying to escape from the scene. They were intercepted and questioned by P.W.10. M.O.1 tape recorder and M.O.2 VCR were found in the possession of A1. He could not give proper explanation regarding the possession of those articles. The accused were arrested and M.O.1 and M.O.2 were seized as per seizure mahazar. On further questioning, A1 was stated to have given a disclosure statement marked as Ext.P6(a) Crl.R.P.No.1620 of 2004 3 which was pertaining to the gold chain/gold necklace. The gist of the relevant statement admissible under Section 27 of the Evidence Act which was separately marked as Ext.P6(a) is to the effect that “I have sold necklace to Rajan Achari of Pettah, Pathanamthitta, if I am taken there, I will show the person to whom I have sold/given the gold necklace” Based on that disclosure statement, P.W.10, as led by the accused went to the shop of Rajan Achari (P.W.3). It could be discerned from the statement of P.W.3 that he (P.W.3) had pledged that gold ornament at Parthasarathy Financiers. P.W.2, Vasu Pillai, Proprietor/manager of that concern handed over the gold ornament (M.O.3) which was seized by him as per Ext.P6 mahazar. The gold ornaments were identified by P.W.1 as the one committed theft of from his house. [The evidence let in by the prosecution with regard to the involvement of other accused is not being dealt with here since this revision is filed only by the first accused.] 4. P.W.1 to P.W.10 were examined and Exts.P1 to P11 were marked. Besides M.O.1 to M.O.6 were also identified and marked by the prosecution. After analysing the evidence, the trial court found the accused guilty of the offences under Sections 457 and Crl.R.P.No.1620 of 2004 4 380 and he was convicted and sentenced as mentioned above. After reappraisal of the evidence, the learned Additional Sessions Judge concurred with the findings entered by the learned C.J.M. 5. The learned counsel for the revision petitioner would submit that there is absolutely no evidence to sustain the conviction. The appreciation of the evidence made by the two courts below is wholly erroneous. The fact that independent witnesses did not support the prosecution should have persuaded the two courts to hold that the prosecution case is untrue. 6. The first contention that was advanced by the learned counsel for the revision petitioner is that there is no evidence of house breaking at all. P.W.1 has given clear evidence regarding the breaking open of the door and the kitchen and also the door leading to the dining room. M.O.4, the broken hook of the iron bolt or iron latches was found by P.W.9, the S.I. of Police who prepared the scene mahazar at 2 PM on 3.10.1996. M.O.4 was seized as per Ext.P5 scene mahazar. Other indications are also seen mentioned in the scene mahazar regarding the trespass and the theft alleged by P.W.1. The very fact that the two doors mentioned earlier were forcibly opened by using some material from outside causing the latches to break is sufficient to hold that Crl.R.P.No.1620 of 2004 5 there was house breaking as alleged by the prosecution. 7. The next question would be whether the house breaking was had during the day time or during night. The evidence would show that P.W.1 left after locking the house at about 11 AM on 30.9.1996 and returned only at about 2.30 AM on 2.10.1996. No doubt, there can be a breaking open during day time also. But it is reasonable to presume that the breaking open could have been had during the night since the breaking open of the door during day time is not usually being done as it would be noticed by the neighbours or passers by. The court is justified in drawing inference from proved facts bearing in mind the natural course of events and circumstances. Such inferences drawn by the court cannot be branded as conjectures or surmises. 8. The learned counsel for the accused submits that there was no evidence to show the complicity of these accused with the commission of the crime. But the evidence given by PW10 would show that this accused along with A2 (Aji) were found in the premises of the Pathanamthitta private bus stand and at that time those accused were found in possession of VCR and Tape recorder. That fact was recorded in Ext.P8( Mahazar), Crl.R.P.No.1620 of 2004 6 prepared for the seizure of the same. It is true that the witnesses to the mahazar are only the police officials but it has to be seen that the arrest of those two accused was had at odd hours (2 AM) and as such there was no possibility for getting independent witness at that point of time. The two courts below analysed the evidence given by PW.10 and found the same to be true. There is no cogent reason to upset that finding. 9. The next item of evidence is the disclosure statement (Ext.P6(a) ) as has been quoted earlier. Based on that disclosure statement PW.10 as led by the accused went to the shop of PW3. It is true that he betrayed the prosecution. But it can be seen that when examined-in- chief, he deposed that he did not know the accused and he does not receive the gold necklace. When he was cross- examined by the learned Public prosecutor, he admitted that the gold ornaments obtained from the accused was pledged by him in Parathasarathy Financiers. PW6 who is the Manager/Proprietor of that Financing Company did not support the prosecution evidently because he was not a witness to the seizure mahazar (Ext.P6). PW6 has given Crl.R.P.No.1620 of 2004 7 evidence, supporting the evidence of PW10 to some extent. It is true that PW6 also shifted his loyalty to the accused for obvious reasons but when cross examined he admitted that the police officer had been to his institution and that gold chain (necklace) was seized from that institution. It was identified as MO3. Two mahazars were prepared for that purpose but he says he did not see this necklace. The overzealousness of this witness shows his loyalty to the accused. It cannot be believed that he had no opportunity to see that necklace as admittedly it was seized from that Financiers. 10. The evidence given by PW10 that it was pursuant to the disclosure statement and as led by the accused he went to the shop of PW3 and based on the statement given by PW3 the gold necklace in question which was mentioned in Ext.P6(a) was pledged by him at Parthasarathy Financiers was found out is found to be true. Had that information been not given by the accused, there was no possibility for PW10 to go to the shop of PW3. Ext.P6(a) was got confirmed by the subsequent statement of PW3 regarding the pledging of the same at the Parthasarathy Crl.R.P.No.1620 of 2004 8 Financiers. The possibility of PW10 to go to Parthasarathy Financiers for seizure of that necklace would not have arisen at all had that information been incorrect. Therefore, notwithstanding the concerted attempt of PW2 and PW6 to help the accused it could be discerned from the totality of the evidence that it was pursuant to the disclosure statement that MO3 was seized from Parthasarathy Financiers. Further, the contention that there was no discovery of the factum of sale of the necklace at the shop of PW3 so as to connect the accused cannot be countenanced at all. The contention raised by the learned counsel for the defence that the discovery cannot be admitted as the one u/s 27 of the Evidence Act does not gain ground. 11. The next contention that is vehemently projected by the learned counsel for the revision petitioner is that the whole statement of the accused was produced before the Magistrate and so it caused serious prejudice to the accused. In support of that argument the learned counsel has relied upon the decision in Gabriel Vs. State of Kerala (1982 KLT 772) in which the police officer Crl.R.P.No.1620 of 2004 9 produced the entire confession statement of the accused. It was depreciated by this court. That was a case where the prosecution wanted to prove the charge of murder against the accused based on circumstantial evidence. The learned public prosecutor would submit in such circumstances the production of the entire statement of the accused which may contain inadmissible confessional part would certainly prejudice the accused but not in a case like this where there is no such confessional part which is likely to prejudice the mind of the court. The learned Public Prosecutor would further submit that, here, on going through the judgments of the trial court and also of the appellate court, it can very well be seen that both the courts have relied upon the admissible confessional statement (Ext.P6(a)) alone and not anything else. It is also pointed out that no question of prejudice was canvassed by the defence before the trial court or the appellate court. There is nothing in the impugned judgment or on the record to show that any plea of prejudice was put forward by the defence nor is there anything to show that any prejudice as such was caused. There is evidence regarding the discovery of the fact, Crl.R.P.No.1620 of 2004 10 namely, the factum of sale of the gold ornaments and the confirmation of the same by recovery of the article. Hence it can be found that the gold ornament was in the possession of the accused immediately prior to its sale. The accused could not account for possession of the same. 12. The next question is whether in these circumstances the courts would be justified in drawing the presumption u/s. 114(a) of the evidence Act. The learned counsel for the accused would submit that the recovery was not soon after the theft. The theft must have taken place in between 11 a.m. on 30.09.1996 and 02.30 a.m. on 02.10.1996. The accused was arrested on 08.10.96. The evidence would show that it was prior to 08.11.96, that necklace was sold by PW3 which in turn was subsequently pledged by PW3. Therefore, it cannot be said that there was not such a long duration so as to contend that there was the possibility of article changing hands. In such circumstances, the court can be legitimately come to the conclusion that MO3 was in the possession of the accused as that theft was committed by him. Since it was committed theft of from the house of PW1, it would certainly attract Crl.R.P.No.1620 of 2004 11 the offence u/s 380 IPC. It was already held that there is evidence of house breaking by night in order to commit theft. Hence it would attract the offence u/s 457 IPC. Therefore, the conviction of the accused for the offence u/s 457 and 380 IPC is confirmed. 13. It was vehemently argued by the learned counsel for the accused that the accused was aged less that 21 years and so the benefit of the P.O. Act should have been extended to him. Section 3 does not have any application at all, since the punishment prescribed u/s. 457 is more than 2 years. Even if it is accepted that the house breaking had not been during night since it is proved that the house breaking was done in order to commit theft it would at least attract second part of the offence u/s 454 IPC the punishment for which is imprisonment which may extend to 14 years. However, that will have no effect on the application of the provisions of the P.O. Act. The punishment prescribed for the offence under the second part of Sec.457 IPC is imprisonment which may extend upto 14 years. 14. The learned counsel for the accused would submit Crl.R.P.No.1620 of 2004 12 that the learned Magistrate has not considered the applicability of the provisions of the P.O. Act at all. The learned Sessions Judge also has not considered the same when the appeal was disposed of. In this connection the learned counsel has cited the decisions in Moosa Vs. State of Maharashtra (AIR 1996 Supreme Court 2566), Vedprakash Vs. State of Haryana (AIR 1981 Supreme Court 643), Roshan Ali Vs. State of Gujarat (AIR Supreme Court 784 and also Masarullah V. State of Tamilnadu reported in AIR 1983 Supreme Court 654 and the Division Bench of this court in State of Kerala V. Sherin ILR Kerala 866). These decisions have been cited by the learned counsel to fortify his submission that decision of the sentencing court should be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant and that it is also the duty of the court to fulfill the humanising mission of sentencing implicit in such enactments as the P.O. Act. It was not denied that the accused was aged below 21 years. Since the conviction was had under 457 IPC, Sec. 3 has no application. Sec. 4 (1) reads: Crl.R.P.No.1620 of 2004 13 “When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:” It is also pointed out that Sec.6 also is mandatory which reads:- “(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is- found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender” 15. It is submitted by the learned counsel for the petitioner that there is nothing to show that the trial court Crl.R.P.No.1620 of 2004 14 had called for a report from the Probation Officer nor was any other information made available to that court relating to the character and physical and mental condition of the offender. The object behind is to see that such offenders below 21 years are not sent to jail for offence which are so serious as to warrant imprisonment with a view to prevent them from contamination due to contact with hardened criminals in jail. Therefore, the provisions of the P.O. Act should be liberally construed keeping in mind the spirit embodied therein. The learned Public Prosecutor would submit that the accused did not put forward a plea of availability of the provisions of P.O. Act, evidently because petitioner/accused was involved in other crimes as well. The incident in this case took place between 30.09.1996 to 02.10.1996. It has been reported by the learned Public Prosecutor, based on the written report of the Dy.S.P., DCRB, Pathanamthitta that the petitioner is the 3rd accused in Crime No.572/1995 which was registered under Sections 395 , 454 IPC etc. That case was pending before CJM court, Pathanamthitta. Since the accused was absconding throughout, that case was transferred to the registry of long Crl.R.P.No.1620 of 2004 15 pending case. It is even now pending as LP. No.13/2003. Therefore, the learned Public Prosecutor submits that, that must precisely be the reason why even in the appeal the accused did not raise the plea of applicability of the provisions of the P.O. Act. It is true that the learned CJM could have adverted to the provisions of the P.O. Act in which case based on the report it could have been held, that it was not expedient in the interest of justice to release the accused on probation of good conduct. The accused is now stated to be aged 34 years. He did not surrender before the CJM, Pathanamthitta in LP case No.13/2003 mentioned above. That means, he has been absconding for more than 8 years. Having attained the age of 34 years and in view of the criminal antecedent, I find, it is not expedient in the interest of justice to release the petitioner on probation of good act. In other words, having regard to the circumstances of the case including the nature of the offence and the character of the offender as has been mentioned in Sec.6(1) of the Act , this court finds it not desirable to deal with the accused under Sec.4. Hence the argument vehemently advanced by the learned counsel that Crl.R.P.No.1620 of 2004 16 the revision petitioner/accused may be given the benefit of the provisions of the P.O. Act cannot be accepted. However, a slight modification can be made with regard to the sentence imposed. In the result this Criminal Revision Petition is disposed of as stated below:- The conviction of the accused/revision petitioner for the offence under Section 457 and 380 IPC is confirmed. While confirming the sentence of imprisonment awarded by the court below for offence under Section 457 IPC, the substantive sentence awarded by the court below for the offence under Section 380 is reduced to 1 1/2 years (18 months). The direction to pay fine and default sentence ordered by the court below will stand confirmed. N.K.BALAKRISHNAN, JUDGE. smvd