IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.Rev.Pet.No. 2586 of 2009() ------------------------------ CRA.393/2006 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE CC.161/2002 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.2 ------------------------------------------- K.B.HANEEFA, S/O.KHADER, BATHERI HOUSE, SHIRIYA, MANGALPADY VILLAGE. BY ADV. SRI.SOJAN MICHEAL RESPONDENT(S)/RESPONDENT/COMPLAINANT(STATE) -------------------------- THE STATE OF KERALA- REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2586 of 2009 -------------------------------------- Dated this the 13th day of August, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge(Adhoc-III), Kasaragod in Crl.Appeal No.393 of 2006 confirming conviction and sentence of petitioner for offences punishable under Sections 457 and 380 of the Indian Penal Code (for short, “the Code”). Case is that on 05.04.2002 at about 3.30 a.m. petitioner and accused No.1 in furtherance of their common intention committed lurking house trespass in the house of PW3 and theft of MOs 1 to 4. Petitioner and accused No.1 were chargesheeted for the said offences. Accused No.1 participated in the trial for sometime and later is said to have absconded. Case against him was split up. Petitioner faced trial, was found guilty, convicted and sentenced to undergo rigorous imprisonment for three years and payment of fine. Appellate court confirmed it. That concurrent verdict is challenged in this revision. It is contended that there is no evidence to prove the involvement of petitioner in the alleged incident. 2. PW3 has given evidence that theft occurred in his house on the night between 04.04.2002 and 05.04.2002. He stated that himself and wife went to sleep on 04.04.2002 at about 10 p.m. and the next day morning at about 6.30 found the outer door of the house remaining open. Locks were found dismantled. MOs 1 to 4 (which he identified in court) kept in his house were Crl.R.P.No.2586/2009 2 found missing. He gave first information regarding the alleged incident on the same day at 8.30.a.m. When he came to the police station he was shown MOs 1 to 4 and got identified by him. Exts.P3 and P4 are the user manual of the two receivers allegedly stolen from the house of PW3 and produced before the police. 3. PW1 , Sub Inspector claimed that while himself and party were on night patrol duty in the early hours of 05.04.2002, he found petitioner and accused No.1 carrying a plastic sack along a lonely place. On seeing police party petitioner and accused No.1 were seen perplexed and trying to hide themselves. They were caught by the police party and on examination it was found that the plastic sack contained MOs 1 to 4. Petitioner and accused No.1 were not able to give satisfactory explanation for their possession of MOs 1 to 4. On the belief that it were stolen articles they were arrested. MO5 is the plastic sack. PW1 prepared Ext.P1, mahazar. Based on the seizure and information given by petitioner and accused No.1 and their arrest PW1 registered case and investigated. According to PW1, in the course of investigation on that day he recorded statement of PW3. PW2, head constable claimed that he accompanied PW1, gave similar evidence and identified MOs 1 to 4. PW4 who is an attestor in Ext.P1 did not support prosecution but admitted the signature in Ext.P1. PW4 is hailing from the locality where petitioner is residing. When questioned under Section 313 of the Code of Criminal Procedure petitioner claimed that he was arrested from his house at about 2.30 a.m. a week before the alleged incident. Petitioner examined DW1. DW1 stated that petitioner was Crl.R.P.No.2586/2009 3 arrested by the police from near his shop at about 7.30 -8.00 a.m. Courts below found that evidence of DW1 did not tally with the plea made by the petitioner that he was arrested from his house at about 2.30 a.m. and refused to accept the version of DW1. 4. It is contended by learned counsel that there is no proper identification of MOs 1 to 4 in the sense that in the statement of PW3 it is stated that MOs 1 to 4 are two receivers and two remote controllers while in Ext.P1, seizure mahazar it is stated that the articles seized are one receiver and three remote controllers. Assuming that there is such a discrepancy in Ext.P1 that does not affect the core of evidence given by PWs 1 to 3. PW3 identified MOs 1 to 4. Therefore the discrepancy in Ext.P1 can only be understood as a bona fide mistake committed by PW1 at the time of preparation of the document. 5. It is contended by learned counsel that alleged seizure was made not from the possession of petitioner and hence no common intention is proved. It is true that the plastic sack (MO5) containing MOs 1 to 4 was being carried by accused No.1. But the question whether petitioner shared common intention has to depend on the facts and circumstances of the case. Evidence reveals that petitioner was found in the company of accused No.1 who was possessing MOs 1 to 4 in the plastic sack (MO5) in the early hours of 05.04.2002 at a lonely place. Petitioner has no explanation for his presence there and that too in the company of accused No.1. It is seen from the evidence of PWs 1 and 2 that on seeing police party petitioner and accused No.1 were found perplexed and they tried to hide themselves. If there was nothing for the Crl.R.P.No.2586/2009 4 petitioner to hide from the police, there was no reason for him to conceal himself. These circumstances are sufficient to show that petitioner shared common intention with accused No.1. 6. It is then contended that at any rate there is no evidence to show that petitioner had committed lurking house trespass. But the evidence of PW3 would show that at about 6.30 a.m. he found the outer door of his house remaining open and locks were seen dismantled. It is evident that theft was immediately before that. In such circumstances when the stolen articles found in the recent possession of accused No.1 and petitioner is found to have shared common intention with accused No.1, it is only reasonable to think that petitioner is also involved or shared common intention in the act of lurking house trespass. On going through the judgments under challenge and hearing learned counsel I find no reason to interfere with the conviction of petitioner. 7. What remained for consideration is whether sentence awarded to the petitioner requires modification. It is not shown that petitioner is involved in any other case. Learned counsel submits that petitioner subsequently got an employment and is working abroad. He requested for leniency. 8. No doubt, the crime found to be committed is serious in nature and undue leniency would amount to misplaced sympathy. At the same time, I am told that petitioner is now working abroad and is living peacefully. He was aged about 20 years during the time of incident. I am inclined to think that he must be given an opportunity to mend his ways rather than sending him behind the bars and spoiling his life by getting mixed with the persons detained there. It is Crl.R.P.No.2586/2009 5 submitted by learned counsel that petitioner was in detention from 05.04.2002 to 10.04.2002. I am inclined to think that substantive sentence can be confined and limited to the period of detention he has already undergone while retaining the sentence of fine awarded by the learned magistrate and confirmed by the appellate court. Though PW3 got back his stolen goods without delay, I must bear-in-mind the mental agony and inconvenience he had to suffer consequent to the act of petitioner. Hence I direct that out of fine if realized Rs.3,500/- will be given to PW3 as compensation. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner for offences punishable under Section 457 and 380 of the Code is modified, confined and limited to the period of detention he has already undergone from 05.04.2002 to 10.04.2002. ii. Petitioner is granted time till 13.10.2009 to deposit fine (on both counts) in the trial court. In case of failure, he shall appear in the trial court on 15.10.2009 to receive the default sentence imposed by the learned magistrate. iii. Out of the fine, if realized Rs.3,500/- (Rupees Three thousand and five hundred only) will be given to PW3 as compensation under Section 357(1) of the Code of Criminal Procedure. THOMAS P.JOSEPH, Judge. cks