IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 1927 of 2009() ------------------------------ CRA.53/2002 of SESSIONS COURT, TRIVANDRUM CC.127/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- MANI, S/O. KUNCHAN, SAROJA BHAVAN, AYYANKODE, 5/520, AYYANCODE VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENTS/RESPONDENTS/STATE AND COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGHCOURT OF KERALA,ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, MUSEUM POLICE STATION,TRIVANDRUM. PUBLIC PROSECUTOR: SRI C S HRITHWI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No. 1927 of 2009 --------------------------------------- Dated this 25th day of August 2009 ORDER Accused No.2 in C.C.No.127 of 1998 of the court of learned Judicial Magistrate of First Class-5, Thiruvananthapuram is before me in this revision challenging his conviction and sentence for offence punishable under section 457, 380 and 461 r/w section 34 of the Indian Penal Code (for short, “the Code”). The records of this case is not before me. Learned counsel for petitioner has provided copy of the depositions of the witnesses and relevant records and took me through those documents. 2. Case of the prosecution is that between 8.30p.m of 15-04-1997 and 7 p.m of 23-04-1997 petitioner and accused No.2 in furtherance of their common intention committed lurking house trespass at night in the house of PW1 by breaking open the rear door and removing the window bars of the house and committed theft of Mos.1 to 19 and 22 to 36 series. PW1 has given evidence regarding the alleged theft. She stated that the inmates of the house were not there on 8.30p.m on 15-04-1997 till 7.00 p.m on 23-04-1997. When they returned to the house they found the house burgled. They learnt that the articles including ornaments kept in the house was stolen. Information was given to the police. PW1 stated that she found the door remaining open and the window bars removed. PW2 claimed to Crl.R.P.No.1927 of 2009 2 have produced MO.21, a shirt collected from the scene of occurrence. PW24, investigating officer received it. PW8 is said to have stitched that shirt. PW23 registered the case. Ext.P2 is the mahazar for scene of occurrence. Petitioner was arrested on 07-06-1997. When questioned, he is said to have given information that the gold ring is given to PW17 who in turn pledged the same with PW16. On the strength of that information and as led by petitioner, investigating officer took petitioner to PW.17 and then to PW.16. PW16 produced MO1 which was seized as per Ext.P7. Ext.P7(a) is the information allegedly given by petitioner which led to the discovery of MO1. Yet another item of evidence used against the petitioner is Ext.P14 and P14(a). It is stated by PW23, investigating officer that on the information given by petitioner and as led by the latter he reached the house of the wife of petitioner wherefrom petitioner produced some of the stolen articles (identified by PW1). Ext.P14 is the mahazar for scene of seizure. Ext.P14(a) is the relevant information given by petitioner and which led to the discovery. Thus, the evidence available against the petitioner is the oral evidence of PW1, 16, 17 and 23 and Ext.P7, P7(a), P14 and P14(a). 3. It is contended by learned counsel that even the identification of MO1 is not proper and in the previous statement of PW1 it was stated that MO1 is having weight of one sovereign while Crl.R.P.No.1927 of 2009 3 later it was stated to be two grams. It is also argued by learned counsel that PW17 has not identified MO1. That there is some discrepancy as to the weight of MO1 by itself is not sufficient to disbelieve the evidence of PW1. PW1 was handing MO1 and hence is capable of identifying the same. I find no reason to disbelieve the identification of MO1 made by PW1. PW17 has given evidence that petitioner had given him a gold ring to raise money by pledging the same and accordingly he pledged the same with PW16 for Rs.600/-. Later the police seized the gold ring from PW16. PW17 is an attester in Ext.P7. When MO1 was shown to PW17 he was not sure whether that was the gold ring petitioner had entrusted to him. PW16 has admitted that PW17 has pledged a gold ring with him and later the police came to him and seized the same. Ext.P6 is photocopy of register which he maintained for the purpose. Petitioner also was with the police. PW23 has given evidence that it is MO1 which he had discovered on the information given by petitioner and seized from PW16. Thus, it is in evidence that MO1 one of the stolen articles was in the possession of petitioner and he pledged it with PW16 through PW17. When possession of stolen articles is proved it is well within the power of the court to draw inference either that petitioner committed theft or that he is a receiver of stolen articles. On the facts and circumstances of this case learned magistrate has drawn the presumption that petitioner Crl.R.P.No.1927 of 2009 4 has committed house breaking and theft. I find no reason to differ. 4. It is seen that learned magistrate convicted and sentenced petitioner for offence punishable under section 457 of the Penal Code. For offence punishable under section 457, it must be shown that lurking house trespass was on the night. In this case there is no such evidence. On the other hand going by the evidence of PW1 the incident could have happened at any time, day or night between 15-04-1997 and 23-04-1997. Hence conviction of petitioner has to be altered from 457 to 454 of the Penal Code. In other respects there is no reason to interfere with the conviction of petitioner. 5. Learned counsel submits that petitioner is running in his 70's and that he is a man unable to do any work. Learned counsel requested that leniency may be shown to him. In the light of submission made by learned counsel a report of District Probation Officer, Thiruvananthapuram was called for concerning the character and antecedents of petitioner. That officer has reported that petitioner has no bad habits or any previous conviction and that he is leading a family life. He has fixed place of residence. His relatives are concerned about him. In these circumstances I am inclined to think that instead of sending petitioner at this old age to the prison it is sufficient that he is released on good conduct for a period of two years. Crl.R.P.No.1927 of 2009 5 Resultantly this revision petition is allowed to the following extent: 1. While retaining conviction of petitioner for offence punishable under section 380 and 461 r/w34 of the IPC his conviction under section 457 is altered to 454 IPC. 2. Instead of sending the petitioner forthwith to the jail he is released on probation of good conduct for a period of two years. Petitioner shall execute a bond in the trial court for Rs.25,000/- (Rupees Twenty Five Thousand Only) with two sureties for the like sum each undertaking to keep peace and be of good behaviour for a period of two years from the date of execution of the bond and to appear and receive sentence as and when called for during the said period of two years. Petitioner shall be under the supervision of District Probation Officer, Thiruvananthapuram during the said period of two years. 3. Petitioner shall execute bond in the trial court within two weeks from this day. Appropriate direction for supervision of petitioner shall be issued by the learned magistrate on execution of such bond to the District Probation Officer. THOMAS P JOSEPH, JUDGE Sbna/