IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3631 of 2008() ------------------------------------------ CRA.677/2005 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.260/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/A1 & A3 ---------------------------------- 1. ASOKAN, S/O.BHASKARAN, KUZHIYAMTHITTAYIL VEEDU, AZHOOR DESOM, -DO- VILLAGE, THIRUVANANTHAPURAM. 2. SUNI, S/O.CHELLAPPAN, KADINAMKULAM PUTHEN VEEDU, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.SASTHAMANGALAM S. AJITHKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KAZHAKUTTAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ====================== CRRP. No. 3631 of 2008 ====================== Dated this the 3rd day of December, 2009. ORDER Revision petitioners are accused 1 and 3 in C.C.No.260/99 on the file of Judicial Magistrate of the First Class-III, Thiruvananthapuram. The Sub Inspector of Police, Kazhakuttam police station in Cr.No.36/99, filed a charge sheet against revision petitioners and another (second accused) alleging offence under Section 457 and 380 read with 34 IPC. It was alleged that at 2 O'clock in the night on 6.2.1999 the revision petitioners committed house breaking by entering Kizhakkumkara veedu Menamkulam village belonging to PW1 after break opening the door and committed theft of a tape recorder worth Rs.5,000/-and a torch worth Rs.1,000/-. 2. At the small hours on 8.2.1999, PW7, the Circle Inspector of police, Kazhakoottam along with two police personnel, who were examined as PW3 and 6, had been moving along Attingal-Thiruvananthapuram part of National Highway on petrol duty. At 12 O' clock in the midnight when they reach near the road along the National Highway at Attingal, 3 persons were found coming with something covered in a paper. Seeing PW7 and CRRP. No. 3631/2008 2 party they attempted to run away. They were restrained, interrogated and found that they were carrying a tape recorder covered with a paper. On further interrogation they confessed theft. They could not account the possession of the tape recorder. Hence, on believing that the tape recorder, which was marked as MO1, was stolen property, the three persons were arrested and the tape recorder was seized on the strength of Ext.P2 mahazar wherein PWs.3, 5,and 6 are attesters. Returning to the police station, a case as Cr.No.36/99 under Sections 41(2) and 102 Cr.P.C was registered by Ext. P3 FIR. On investigation it was revealed that the revision petitioners had committed theft of MO1 from the house of PW1 after break opening the house. Ext.P4 report was filed to substitute Section 457 and 380 read with 34 IPC for Section 41(2) and 102 Cr.P.C. Further investigation was taken over by PW4 Sub Inspector of police. On completion of the investigation the charge sheet was laid. 3. The 2nd accused did not appear in response to the process. Hence the first and 3rd accused were sent for trial. After furnishing the copy of charge sheet and connected records, the prosecution and the revision petitioners were heard. A charge for the above said offence was framed and it was read over to the revision petitioners, who CRRP. No. 3631/2008 3 pleaded not guilty. Therefore, they were sent on trial. On the side of prosecution PW1 to 7 were examined. The revision petitioners took a defence of total denial. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilty. Consequently, the revision petitioners were convicted and sentenced to simple imprisonment for two years each and a fine of Rs. 5,000/- each for offence under Sections 380 and 457 IPC with a default sentence of simple imprisonment for three months. In Crl. Appeal. No. 677/05, the conviction and sentence were confirmed by judgment dated 27.10.2007. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal this revision petition was filed. 4. Heard both sides. Perused the records. PW1 had deposed that on a day in February, 1999 at the small hours her house was broke opened and MO1 tape recorder kept on the table worth Rs.5,000/- and brought by her husband, who was working abroad, was stolen. The break opening of the house and theft deposed by PW1, was not challenged in cross examination. There is no reason to disbelieve PW1 on that aspect. Hence by the evidence of PW1 which remains unchallenged, the house breaking and theft were established. CRRP. No. 3631/2008 4 5. The question which then arises is whether it was committed by the revision petitioners or not. To connect the revision petitioners with the crime the prosecution would rely upon the recovery of MO1. PW7 supported by PWs.3 and 6 had given evidence regarding the arrest of the revision petitioners along with MO1. Though PWs. 3,6, and 7 were subjected to searching cross examination no material was disclosed to impeach the veracity of their testimony. PW7 had deposed that for the seizure of MO1 Ext.P2 seizure mahazar was prepared. PWs. 3,5 and 6 are attesters of Ext.P2. The revision petitioners could not account the possession of MO1, which was identified by PW1 as the stolen tape recorder. It is the recovery of MO1 that connects the revision petitioners with the offence alleged. 6. The learned counsel for the revision petitioners would submit that there is delay in preparing Ext.P1 scene mahazar. PW4 had deposed that Ext.P1 was prepared on 30.2.1999. In Ext.P1 no such date is given. It appears that PW4 was not cautious in giving evidence. There might be some delay in preparing the scene mahazar and PW4 might have committed a slip of tongue regarding the date of theft. That is not at all a reason to disbelieve the evidence of PW7 supported by the evidence of Pws. 3,5 and 6 and Ext.P2. It appears that since PW1 was CRRP. No. 3631/2008 5 staying with her children and her husband was abroad, she didn't care to complain in time and that she had come forward with complaint only after recovery of MO1 by Ext.P2. It is that circumstance which led to the delay in preparing Ext.P1. That delay is not at all sufficient to reject the evidence on record which the courts below believed. It is pertinent to note that the revision petitioners could not account the possessions of MO1. Failure to account MO leads to the complicity of the revision petitioners with the house breaking and theft. In the above circumstance there is no merit in the revision petition. I find that conviction is based upon cogent evidence. There is no reason to interfere with. 6. Coming to the sentence the courts below had awarded simple imprisonment for 2 years . According to the learned counsel for the revision petitioner subsequent to the case on hand, there is no report of any crime. But, it is admitted that there was an earlier case. It was also argued that the revision petitioners are now leading normal life and engaged in some avocation. Probation Officer had reported that the revision petitioners have no feeling of guilt or remorse. However taking into account of the fact that there is no subsequent incidence of theft, I find that they are entitled to a little more leniency and that simple CRRP. No. 3631/2008 6 imprisonment for one year with fine as ordered by the trial court would meet the ends of justice. In the result, revision petition is allowed in part. While confirming conviction, the sentence is reduced to simple imprisonment for one year for each offence with fine of Rs.5,000/- each for offence under Section 380 and 457 IPC. The sentence shall run concurrently. The trial court had ordered a compensation of Rs.8,000/- to PW1. I find that it is not at all warranted. The Order to pay compensation to PW1 is set aside. MO1 shall be returned to PW1 after the trial against the 2nd accused. In the event, the case against the 2nd accused is transferred to the register for long pending cases, MO1 shall be returned to PW1 after recording evidence under Section 299 Cr.P.C and on undertaking to produce the same as and when called upon, for which sufficient security bond shall be got executed. P.S.GOPINATHAN, JUDGE. mns CRRP. No. 3631/2008 7