IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 Crl.Rev.Pet.No. 3191 of 2008() ------------------------------ CRA.804/2007 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.456/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S)/APPELLANT/A4: ------------------------------ SUBI, AGED 28, S/O CHANDRAN, POYINTHARA VEEDU, THRIPUNITHURA KARA, NADAMA VILLAGE. BY ADV. SRI.C.P.UDAYABHANU RESPONDENT(S)/ RESPONDENT/COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY THE S.I OF POLICE (CRIME NO. 28/06) MUVATTUPUZHA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2011, THE COURT ON 02/08/2011 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.3191 OF 2008 ----------------------------------- Dated this the 2nd day of August, 2011 O R D E R The revision is by the 4th accused in C.C.No.456 of 2006 on the file of the Judicial First Class Magistrate Court, Muvattupuzha. He was prosecuted for the offences under Sections 457 and 380 read with Section 34 of the Indian Penal Code, with four others, on a report filed by the Circle Inspector of Police, Muvattupuzha. Accused, all of them, had pleaded not guilty. Rest of the accused were let off upholding their plea of not guilty, but, the petitioner (A4) alone was found guilty of the offences charged, and on his conviction, he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- with default term of simple imprisonment for three months for the offence under Section 457 of the IPC and simple imprisonment for one year under Section 380 of the IPC, directing him to undergo such sentences concurrently. The appeal preferred by him against his conviction was turned down Crl.R.P.No.3191/2008 2 by the learned Additional Sessions Judge, Ernakulam, who upheld the sentence also without any modification. Feeling aggrieved, the petitioner has filed this revision. 2. The gist of the prosecution case is that the accused, all of them, pursuant to common intention committed burglary by house breaking the godown of the Kerala State Co-operative Rubber Marketing Federation housed in building No.XII/496 in Valakom panchayath of Muvattupuzha Taluk, at midnight on 10.01.2006, and pilfered 571.3 kgs of rubber sheets worth Rs.39,991/- stored in that godown. The accused are alleged to have transported the goods pilfered in a tempo van belonging to one of them (A3) and, later, of selling such goods for illegal gain. A crime was registered under Ext.P5 F.I.R. recording Ext.P1 statement of the manager of the aforesaid marketing federation, who was, later, examined as PW1 in the case. While the investigation over Ext.P5 crime was pending, A1 was apprehended in another crime by PW9, Circle Inspector of Police, Puthencurisu, and then the custodial interrogation of the Crl.R.P.No.3191/2008 3 accused revealing the complexity of the accused, all of them, rest of the accused were also arrested by him. Pursuant thereto on transit of the records, the Circle Inspector of Muvattupuzha police station conducted investigation, recovered some of the stolen rubber sheets from a retail seller, PW3, and later laid the charge against the accused for the offences stated supra. The prosecution evidence consisted of PWs.1 to 13 and Exts.P1 to P9. The accused has not let in any defence evidence. The revision petitioner (A4) alone was found guilty and convicted of the offence charged, and the other accused were acquitted by the trial Magistrate; and, the conviction entered against the petitioner (A4) was confirmed by the learned Sessions Judge as well. 3. The learned counsel for the revision petitioner assailed the concurrent finding of guilt entered against A4 contending that there was nothing on record to have a different treatement against him, to hold him guilty of the offences imputed, while letting of the other accused, on the materials placed by Crl.R.P.No.3191/2008 4 prosecution. The recovery evidence relied on by both the courts to inculpate the accused for the offfences imputed was weak and unacceptable to found a conviction against him, is the further submission of the counsel. PW3, a retail seller was examined to prove the recovery of the MO1 series alleged to have been seized in the presence of A3 and A4. His evidence would not disclose from which of the above accused the goods were collected, and when such be the case, where A3 was acquitted, the same yardstick should have been applied in the case of A4 as well to form a conclusion that atleast he is entitled to the benefit of doubt in the case, according to the cunsel. Lastly, in the alternative, the learned counsel for the revision petitioner pleaded for extending the benevolent provisions of the Probation of Offenders Act in his favour submitting that there is no previous conviction against him. 4. I have perused the judgments rendered by both the courts and also the records of the case with reference to the submissions made by the learned counsel for the revision Crl.R.P.No.3191/2008 5 petitioner. The prosecution has clearly established by the materials placed the burglary committed, by house breaking, in the godown of the Kerala State Co-operative Rubber Marketing Federation in building No.XII/496 in Valakom panchayat of Muvattupuzha taluk and pilfering of rubber sheets stored in such godown. MO1 series recovered from PW3, a retail rubber seller, formed part of the stolen goods has also been proved by the evidence of PWs.1 and 2, Manager and Accountant respectively of the Marketing Federation. The accused including the revision petitioner had no challenge regarding house breaking of the godown and also that MO1 series formed part of the stolen goods later recovered in investigation. Concurrent finding entered by the courts below as regards those aspects of the prosecution case, which are fully established by the materials tendered in the case, has not been rightly and correctly impeached by the learned counsel for the revision petitioner (A4). Challenge against the conviction by A4 canvassed by his counsel is footed on the basis that there is no convincing legal evidence to inculpate him for the offence with Crl.R.P.No.3191/2008 6 which he was found guilty. Recovery of MO1 series from PW3, a retail rubber seller, was relied by both the courts to found the conviction against him. Going through the evidence of PW3, it is seen that he had identified revision petitioner and another accused A5, who were with the police party, when recovery was effected as the persons who had sold him rubber sheets, some of which had been sold and the rest remaining in his shop recovered as MO1 series. He asserted that it was the revision petitioner (A4) who had sold the rubber sheets and received the sale price. The evidence of PW3, the retail rubber dealer, from whose shop MO1 series were recovered, with that of the investigating officer who effected such recovery, was found credible and trustworthy to the learned Magistrate and also the learned Sessions Judge to hold A4 guilty of the offences. I find no infirmity in the conclusion so formed by both the courts below concurrently on the materials placed in the case. The other accused including A3 was let off is not a ground when the incriminating circumstances brought out by the materials proved the guilt of the revision petitioner (A4) in the offences. Crl.R.P.No.3191/2008 7 Conviction of the accused, in such circumstances, is not liable to be disturbed. 5. The evidence of PWs.1 and 2, the officials of the Rubber Marketing Federation would only indicate that the godown was closed on the evening of Saturday and opened only on the morning of the next Monday and during the intervening time, burglary by house breaking and pilfering of rubber sheets occurred. When such be the case, as there is no other material to connect that the burglary was at night, the accused (A4) could have been convicted only for house breaking under Section 454 IPC and not under Section 457 IPC. So much so, conviction of the accused could have been entered into only for the offence under Section 454 IPC and not under 457 IPC. However, no modification of the sentence of the accused is called for as maximum leniency is seen as extended in the matter of punishment. I do not find any merit in the plea canvassed by the counsel for the petitioner for extending the benevolent provisions of the Probation of Offenders Act in favour of the Crl.R.P.No.3191/2008 8 accused. Conviction of the accused under Section 457 of the IPC shall stand modified as under Section 454 IPC, with that of Section 380 of the IPC, retaining the sentences imposed by the inferior courts. Subject to the above modification, the revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.3191/2008 9