IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Crl.Rev.Pet.No. 1150 of 2008(C) ------------------------------ CRA.265/2001 of II ADDL.SESSIONS COURT-II, KOZHIKODE CC.764/1995 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- DILEEPAN, S/O.CHANDRAN, THAZHATHE PEEDIKAYIL, PUTHIYAPPA, ELATHUR. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT & STATE: ---------------------------------------------- 1. S.I OF POLICE, ELATHUR POLICE STATION. 2. STATE OF KERALA REP:BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Crl.R.P. No. 1150 of 2008 ==================== Dated this the 6th day of August, 2008. O R D E R The petitioner who was the 1st accused in C.C. No. 764 of 1995 on the file of the Judicial First Class Magistrate-IV, Kozhikode for offences punishable under Sections 457 and 380 r/w Section 34 IPC, challenges the conviction entered and the sentence passed against him concurrently by the courts below for an offence punishable under Section 456 IPC. 2. The case of the prosecution can be summarised as follows: On 29.08.1993, at about 2.15 p.m., the 4 accused persons criminally trespassed into the boat building workshop of PW1 bearing building No. 12/365, situated to the north of MLA road at Puthyappa, within the limits of the Elathur police station and committed theft of various parts of the machinery costing Rs.25,000/-. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned CRL.R.P. NO. 1150/2008 :2: offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 witnesses as PWs 1 to 7 and got marked 4 documents as Exts. P1 to P4 and 4 material objects as Mos. 1 to 4. 4. After the close of the prosecution evidence, the accused were questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 04.05.2001 acquitted all the the accused persons of the offences punishable under Sections 457 and 380 IPC, but convicted them for an offence punishable under Section 456 r/w Section 34 IPC. Each of the four accused persons was sentenced to rigorous imprisonment for one year and to pay a fine of Rs.250/- and on default to pay the fine, to suffer rigorous imprisonment for one week. Three sets of appeals were filed as Crl. Appeal Nos. 265, 282 and 399 of 2001 before the Sessions CRL.R.P. NO. 1150/2008 :3: Court, Kozhikode. The II Additional Sessions Judge as per common judgment dated 04.09.2004 acquitted the accused persons 2 to 4, but confirmed the conviction entered and the sentence passed against the revision petitioner/accused. Hence, this Revision. 6. Both the courts have concurrently believed PW1, the de facto complainant. He was conducting a workshop which attends to the repair work of fishing boats. The said workshop is situated by the side of MLA road at Puthyappa. He started noticing that various machinery parts kept in his workshop were being stolen on different dates commencing from June, 1993. On 08.07.1993, 15 pistons were stolen. On 02.07.1993, he found that 35 kgs. of copper had been stolen from his workshop. On 28.07.1993, 6 heads of ruston engine were found missing from his shop. Even though he had lodged a complaint before the Elathur police, the police did not take any action. At last, PW1 decided to catch the thief. Accordingly, in the night of 29.08.1993, he kept awaken outside the workshop. At about 2'o clock, A1 to A4 who were known to him previously, were seen coming towards the side of CRL.R.P. NO. 1150/2008 :4: his workshop. They climbed over the top of another shed and reached the top of his workshop. A1 and A2 removed the tiles and got inside the workshop while A3 and A4 remained on the roof of the workshop. Then PW1 suddenly entered the workshop and switched on the lights. He caught A1 red-handed. On A2 alerting his companions, A2 to A4 hurriedly made good their escape. PW1 then raised a cry and thereupon the nearby people also collected. A1 who was apprehended and restrained, was handed over to the flying squad police which arrived and took A1 to Elathur police station. Even though PW1 lodged a written complaint before the Elathur police station, he subsequently discovered that the police did not register a crime. Thereupon he moved the City Police Commissioner culminating in the registration of Ext.P3 FIR. 7. The courts below came to the conclusion that the offence which was made out was house trespass by night punishable under Section 456 IPC. 8. Adv. Shri. T.G. Rajendran, the learned counsel appearing for the revision petitioner made the following submissions before CRL.R.P. NO. 1150/2008 :5: me in support of his fervent plea for acquittal of the revision petitioner:- In order to bring home the guilt of the accused under Section 456 IPC, the prosecution will have to prove that there was house breaking within the meaning of Section 445 IPC for which entry or exit should have been effected in either of the six ways enumerated thereunder. Ext.P2 scene mahazar does not show that any of the roofing tiles had been removed. If so, it cannot be said that either the revision petitioner or any of the co- accused had opened a passage for entry into the workshop and had thereafter entered the workshop through that passage so as to attract Section 456 IPC. The case does not fall under any of the six modes of entry or exit referred to in section 445 IPC and nothing has been recovered from the revision petitioner. So the conviction recorded against the revision petitioner is unsustainable. 9. I am afraid I cannot agree with the above submission. On the facts proved in this case, the case squarely falls either under 'secondly' or 'thirdly' of Section 445 IPC. Those two CRL.R.P. NO. 1150/2008 :6: clauses read as follows:- “Secondly- If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building. thirdly-If he enters or quits through any passage which he or any abettor of the house – trespass has opened, in order to the committing of the house trespass by any means by which that passage was not intended by the occupier of the house to be opened.” 10. It is in evidence that all the four accused persons found their way on to the roof of the workshop after climbing over a nearby shed. It is also in evidence that after removing a few of the tiles of the roof of the workshop of PW1, A1 and A2 slipped into the workshop through the passage made on the roof and PW1 had actually caught hold of the revision petitioner from inside the shop at the dead of the night. This part of the evidence of PW1 has been fully accepted by both the courts below. It is true that Ext.P2 scene mahazar does not show that the tiles on the roof of the workshop were seen removed. But, then, it must be remembered that even though the occurrence took place in the night of 29.08.1993, Ext.P2 scene mahazar was prepared only on 08.10.1993 and that too after PW1 had fought CRL.R.P. NO. 1150/2008 :7: a relentless battle against the inaction of the Elathur Police. During this period, PW1 cannot be expected to leave the hole on the roof of this shop in tact to enable like-minded thieves to enter the workshop and burgle the machinery installed therein. It is in evidence that even though PW1 and others had handed over the revision petitioner to the police and PW1 had lodged a complaint before the Elathur police station, they did not register a crime. The lower appellate court has rightly observed that the probity of investigation cannot be taken advantage of by the accused. The decision of the Apex Court in State of Karnataka v. Yarappa Reddy (1999 (3) KLT 456) was rightly pressed into service. The conviction was thus rightly recorded against the revision petitioner. 11. Even though the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere CRL.R.P. NO. 1150/2008 :8: with the said conviction which is accordingly confirmed. 12. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I do not find any good ground for interference with the sentence imposed on the revision petitioner as well. In the result, this Revision is dismissed confirming the conviction entered and the sentence passed against the revision petitioner. Dated this the 6th day of August, 2008. V.RAMKUMAR, JUDGE. rv