IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.REV.PET.NO. 946 OF 2009() ----------------------------- CRA.700/2006 OF I ADDL. SESSIONS COURT, PALAKKAD CC.1/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ---------------------------------------------------------------- SIVADASAN, S/O.KASU, NEAR CSI CHURCH, MANAIARO ESTATE, NELLIYAMPATHY, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------------------------------------ STATE OF KERALA, REP. A.S.I. OF POLICE, PADAGIRI POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.946 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of June, 2009 O R D E R -------------- Heard counsel for petitioner and the Public Prosecutor who appeared for respondent. 2. Courts below concurrently found that petitioner committed the offence punishable under Section 379 of the Indian Penal Code (for short, “the Code”) by removing the gold waist chain worn by the two year old son of P.Ws.1 and 2 on 22.12.2005 at about 10.00 a.m. Learned magistrate sentenced the petitioner to undergo rigorous imprisonment for two years. In appeal the sentence was modified as rigorous imprisonment for one year. Learned counsel for petitioner contends that sentence is excessive and in case conviction of petitioner is not interfered, petitioner may be given an opportunity to correct himself, by invoking Section 4 of the Probation of Offenders Act. 3. P.Ws.1 and 2 are parents of the child whose gold waist chain petitioner is stated to have stolen. They stated that on the relevant day and time the child was playing in the courtyard of the house and hearing its cry they came to the courtyard and found petitioner running away from the scene. On checking up they found CRL. R.P. No.946 of 2009 -: 2 :- that the gold waist chain worn by the child is missing. P.W.1 gave statement (Ext.P1) to the police. P.Ws.1 and 2 identified M.O.1 as the gold waist chain on the same day at the police station. P.W.6, Assistant Sub Inspector registered the case. He inspected the place of occurrence at 12 noon and prepared mahazar, Ext.P3. It is the further case of P.W.6 that on the very same day at about 1.00 p.m. in the course of his investigation he found the petitioner near the bus stop at Kaikatti. He arrested petitioner and seized M.O.1, gold waist chain from the loins of the petitioner. Exhibit P2 is the mahazar for that seizure. P.W.4 is a witness to the incident as well as an attester in Ext.P2. He stated that cry of the child attracted him to the place of occurrence. He was told that a person had snatched the gold waist chain of the child and ran away. He went in search of that person. The same day afternoon he saw police arresting the petitioner at Kaikatty and seizing M.O.1, gold waist chain from the loins of petitioner. He attested in Ext.P2. In cross-examination he stated that he saw petitioner running away from scene of occurrence. He stated that on seeing the police near the bus stop petitioner attempted to escape from the scene, police chased him and took him to custody about 100 metres away from the bus stop. Learned counsel contends that evidence of P.Ws.1, 2, 4 and 6 cannot be believed. Learned counsel also contends that there is contradiction in the evidence of CRL. R.P. No.946 of 2009 -: 3 :- P.Ws.4 and 6 regarding the arrest of the petitioner. 4. I have gone though the evidence of P.Ws.1, 2, 4 and 6 produced by the counsel for my perusal. P.Ws.1 and 2 are consistent as to the missing of M.O.1, gold waist chain which the child was wearing at the relevant time. They saw petitioner running away from the scene. P.W.1 claimed that petitioner is known to him even before the incident. P.W.4 also has given evidence that he had seen petitioner running away from the scene. Evidence of P.Ws.4 and 6 is that petitioner was arrested on 22.11.2005 at 1.00 p.m. at Kaikatty and M.O.1 was seized from his possession. Contradiction is only whether immediately before his arrest petitioner had tried to escape from the place on seeing P.W.6. I find no reason to think that it is a material contradiction requiring rejection of evidence of P.Ws.4 and 6. Thus petitioner is proved to have removed the gold waist chain worn by the child of P.Ws.1 and 2 and that chain was seized from his possession the same day. Conviction of petitioner does not require interference,. 5. Report of District Probation Officer, Palakkad on the character and antecedents of petitioner was called for. The Additional District Probation Officer submitted a report dated 11.6.2009. In that report it is stated that petitioner has two families apart from aged parents and he is maintaining all. He is a coolie driver by occupation. CRL. R.P. No.946 of 2009 -: 4 :- It is reported that he is not having any bad habits now though he happened to be involved in two other crimes also, one for offence under Sec.376 and other for offence under Sec.379 of the Code. Case for the offence under Sec.376 of the Code is on trial. Stand of the petitioner is that unknowingly he got involved in that case and is trying to settle the case. Additional District Probation Officer reported that this is a fit case where the petitioner could be given an opportunity to correct himself. 6. I have gone through the report of the Additional District Probation Officer. I heard learned counsel for petitioner and Public Prosecutor on the question whether petitioner could be released on probation. It is true that he is involved in two other cases as aforestated. But it is seen that two families are depending on him, he being a coolie driver not having any permanent job or occupation, attending to the calls of vehicle owners whenever required. According to the Additional District Probation Officer if the petitioner is put behind the bars it may put the families into difficulty. Additional District Probation Officer is of the opinion that petitioner is now leading a crime free peaceful life and he may be given an opportunity to correct himself. I am inclined to accept the report and give the petitioner an opportunity to mend his ways. Resultantly, this revision is allowed in part to the following CRL. R.P. No.946 of 2009 -: 5 :- extent: Instead of sentencing the petitioner forthwith as ordered by the appellate court petitioner is released on probation for a period of two years on condition that he shall keep peace and be of good behaviour during the said period of two years and will appear in the trial court to receive the sentence as ordered by the appellate court in case of violation of the bond during his bond. Petitioner shall execute a bond for Rs.25,000/- (Rupees Twenty five thousand only) with two sureties for the like sum each to the satisfaction of the trial court within one month from this day. Petitioner shall be under the supervision of the Additional District Probation Officer, Civil Station, Palakkad for a period of two years from the date of execution of the bond. Learned magistrate shall issue necessary orders to the Additional District Probation Officer in that regard. THOMAS P.JOSEPH, JUDGE. vsv