IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 Crl.Rev.Pet.No. 1097 of 2007(E) C.C. NO. 167/2003 OF JFCM II MANANTHAVADY ------------------------------- REVN. PETITIONER: ------------------ BHASKARAN, CONVICT NO. 3121, CENTRAL PRISON, KANNUR. BY ADV. ADV. MANJY ANTONY (STATE BRIEF) RESPONDENTS: ------------- STATE OF KERALA BY PUBLIC PROSECUTOR MR. M.S.BREEZE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No. 1097 of 2007 = = = = = = = = = = = = = = Dated this the 27th day of February, 2008 ORDER In this revision preferred from the Central Prison, Kannur, the petitioner, who was the accused in C.C.No.167/2003 on the file of the Judicial First Class Magistrate-II, Mananthavady for an offence punishable under Sections 511 of 380 of the Indian Penal Code, was convicted and sentenced by the courts below concurrently for the aforesaid offence. 2. The case of the prosecution can be summarised as follows: On 4-4-2003 at about 12.30 noon the accused with the intention of committing theft, broke open the lock of the front door of the house of PW2(Saritha) bearing building No.TP.2/405 at Karladu at Kavumandam within the limits of Padinjarathara police station and thereby committed the aforementioned offence. CRL.R.P.1097/2007 -2- 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution examined three witnesses as PWs.1 to 3 and got marked three documents as Exts.P1 to P3 and two material objects, MOs.1 and 2. After the close of the prosecution evidence, the accused was examined under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 4. The learned Magistrate after trial, as per judgment dated 30-1-2004, found the revision petitioner guilty of the offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- and in default to pay the fine, to undergo rigorous imprisonment for another month. 5. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner preferred an appeal before the Sessions Court, Wynad. As per judgment dated 26-12-2005, the Sessions Judge confirmed the conviction and sentence passed against the revision petitioner. Hence this revision. CRL.R.P.1097/2007 -3- 6. I heard Mr.Manju Antony, learned counsel appearing for the petitioner on State Brief, and the learned Public Prosecutor. 7. The learned counsel appearing for the revision petitioner made the following submissions before me in support of his attack against the conviction and sentence : PW2, Saritha is the lady from whose house the alleged attempt to commit the offence punishable under Section 380 I.P.C. was committed. She would claim that after locking the front door she was attending to the domestic choir in the kitchen. It is highly improbable that the accused would have broken open the front door during broad daylight. The chances are that since the Sub Inspector wanted somebody to account for the occurrence, he was falsely implicating the accused in this case also. Instead of PW2, it was PW1, the Sub Inspector who figures as the first informant, which shows the interestedness of PW1 in implicating the revision petitioner. PW1 is not only the first informant, but also the officer who conducted the investigation and laid the charge. The courts below have overlooked these aspects while convicting the revision petitioner. 8. I am afraid that I cannot agree with the above submissions. PW2, Saritha has deposed before the court that she CRL.R.P.1097/2007 -4- was attending to the work in the kitchen after locking the front door of the house when at about 12 noon, she heard a sound from the front door. When she rushed to the front door, she found the door open and MO.1 lock of the door was found lying on the floor. She also saw the accused standing there with MO.2 iron stick in his hand. Getting scarred, she made a hue and cry. PW3, who is her neighbour and who was doing work in the nearby paddy field hearing the screams of PW2, came rushing to the spot. Soon PW3 and others over powered the accused and apprehended him. The police was informed and the police came to the spot and arrested the accused and seized MOs.1 and 2 and prepared Ext.P1 seizure mahazar and Ext.P3 scene mahazar . 9.It is seen that the prosecution has proved the case through the oral evidence of PWs.1 to 3. Merely because of PW1, who rushed to the spot on receiving a report of the occurrence and thereupon figured as the first informant, he does not become a person interested so as to falsely implicate the accused. For that reason alone his evidence would not become tainted as well. Likewise, merely because PW1 has conducted investigation and charge sheeted the accused, his evidence does not become liable to be eschewed. The testimony of PWs.2 and 3 is fully supported by CRL.R.P.1097/2007 -5- the factum of the arrest of the accused in flagrante delicto with MO.2 iron stick in his hand. I am not inclined to accept the contention that the accused has been falsely implicated by PW 1. 10. This Court sitting in revision will be loth to dislodge the conviction entered against the revision petitioner concurrently by the courts below. The sentence imposed on the revision petitioner also cannot be said to be harsh or disproportionately excessive having regard to the facts in the case and the proclivities of the petitioner. I, therefore, do not find any good ground to interfere with the conviction entered and sentence passed by the courts below. This civil revision petition is accordingly dismissed. SD/- V. RAMKUMAR, JUDGE ks. TRUE COPY P.S.TO JUDGE CRL.R.P.1097/2007 -6- V. RAMKUMAR,J. CRL.R.P. NO. 1097 of 2007 ORDER 27-2-2008