IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 746 of 2001() ---------------------------------------- CRA.114/1998 of ADDL.SESSIONS COURT, THODUPUZHA CC.145/1994 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER/ APPELLANT/ ACCUSED --------------------------- BAVA @ BAVAKUTTY, S/O. PAREETH, CHEERAPARAMBIL HOUSE, MUTHALAKKODAM KARA, THODUPUZHA. BY ADV. SRI.P.CHANDY JOSEPH RESPONDENT/RESPONDENT/ COMPLAINANT -------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP.NO.3497/2001 IN CRL.RP. NO.746/2001 DISMISSED 17.09.2008 SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A.T O JUDGE tss THOMAS P. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 746 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 O R D E R According to the prosecution while PW1, the defacto complainant was asleep in her bedroom along with her husband, (PW2) and children in the night of 20.06.94 at about 2.30 p.m., the revision petitioner entered that room after removing the tiles on the roof, snatched the gold chain weighing four sovereigns which the PW1 was wearing and escaped from the scene. The Circle Inspector, Thodupuzha arrested the revision petitioner on 20.07.94 at about 3 a.m. and is said to have recovered MO1, the stolen gold chain on the information given by him. The revision petitioner was charge sheeted for offences punishable under Sections 457 and 380 IPC. The learned Chief Judicial Magistrate, Thodupuzha found the revision petitioner guilty, convicted and sentenced him to undergo imprisonment. Though he preferred an appeal to the Sessions court, Thodupuzha, the learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence. Hence, this revision petition. 2. Heard the learned counsel for the revision petitioner and the Crl.R.P. No.746/2001 -:2:- learned Public Prosecutor. The learned counsel submitted that the alleged recovery at the instance of the revision petitioner is not proved beyond reasonable doubts. 3. So far as the alleged theft is concerned, PW1 has given evidence. She said that on the relevant day and time while she was asleep she felt as if somebody was pulling the gold chain she was wearing, woke up and found a person whom she could not identify, running away after snatching her gold chain. She later identified the gold chain at the police station, that is MO1. PW2, the husband stated that hearing the hue and cry he woke up and learned about the incident. Ext.P3, mahazar for scene of occurrence states that some f the roof tiles were seen removed. Evidence of PWs 1 and 2 regarding the alleged incident is not even touched in cross examination. The challenge was only regarding the identification of MO1. It is true that PW1 was not able to produce any bill for the purchase of MO1 but it is said that ladies have uncanny sense of identifying their personal belongings. There is also no reason to desbelieve the identification of MO1 made by PW1. Theft of MO1 Crl.R.P. No.746/2001 -:3:- belonging to PW1 on the relevant day and time is proved by the prosecution beyond reasonable doubt. 4. As the learned counsel rightly pointed out, the only item of evidence produced by prosecution to bind the revision petitioner is the alleged discovery of MO1 as per Ext.P2. PW8, the Circle Inspector has given evidence that in the course of investigation he arrested the revision petitioner on 20.07.94 at about 3 a.m. and when questioned, the revision petitioner gave statement like Ext.P2 (a), marked in Ext.P2 mahazar, based on which and as lead by the revision petitioner, he reached the house of the revision petitioner along with him. From that house, the revision petitioner produced MO1 which he seized as per Ext.P2. PWs 5 & 9 are the attestors in Ext.P2. Both refused to support the prosecution. PW9 pleaded ignorance whether Ext.P2 is the Mahazar signed by him. PW5 admitted that he signed Ext.P2 but claimed that it was at the police station. Learned counsel submitted that going by the evidence of PW8, there were houses nearby the place from which the alleged discovery was made, but one of them were cited as witness. Crl.R.P. No.746/2001 -:4:- 5. Merely for the reason of PW8 not getting witnesses from the neighbourhood of the revision petitioner, the discovery as per Ext.P2 cannot be rejected. It is not as if there was no witness to the discovery. As per the evidence of PW8, PWs 5 & 9 were present, though they did not support the prosecution which is a different matter. It is not brought out that PW8 or any other police official had any axe to grind against the revision petitioner to falsely implicate him. In the light of the evidence on record, I do not find any reason to disbelieve the evidence of PW8 regarding the revision petitioner giving him the information concerning the concealment of MO1 and the discovery of MO1 on the strength of that information. Under Ext.P2(a), the revision petitioner has owed the authorship of concealment of MO1. In other words, the revision petitioner was found in possession of MO1, the stolen gold chain. Considering the nature of MO1, the discovery as per Ext.P2 cannot be said to be not soon after the theft. In the above circumstances, it was possible to presume that the revision petitioner committed the theft. Conviction of the revision petitioner therefore, cannot be assailed. Crl.R.P. No.746/2001 -:5:- 6. Turning to the sentence part of the judgment of the courts below, counsel submitted that as observed by the learned Chief Judicial Magistrate in paragraph 16 of the judgment, the revision petitioner is a young man and a first offender. He therefore requested for leniency in the matter of sentence. 7. Since the revision petitioner is a young man and a first offender as observed by the Chief Judicial Magistrate, I am inclined to think that leniency can be shown to him. Imprisonment is mandatory for the offences found against the revision petitioner. Taking into account all the relevant aspects stated above, I am inclined to think that simple imprisonment for a period of two months each is sufficient punishment. Revision Petition is therefore allowed in part in the following lines: The sentence imposed on the revision petitioner is modified as simple imprisonment for two months each to be undergone concurrently. The revision petitioner shall surrender in the trial court on 22.10.08 to receive the sentence. The period of detention, if Crl.R.P. No.746/2001 -:6:- any undergone by the revision petitioner during the investigation or trial of this case will be set off against the sentence awarded hereunder. Fine if any, deposited by the revision petitioner shall be refunded to him. Bail bond is cancelled. THOMAS P. JOSEPH, JUDGE ttb