IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Crl.Rev.Pet.No. 510 of 2002() ----------------------------- CRA.201/1998 of SESSIONS COURT, THODUPUZHA CC.99/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, DEVICOLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------- SELVAKANI @ SELVAKUMAR, S/O. GANESAN, 8 MURILAYAM, NORTH DIVISION, NADAYAR, NALLATHANNY ESTATE, K.D.H. VILLAGE. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S):RESPONDENT/COMPLAINANT: ------------------------------------------------- STATE OF KERALA, (S.I. OF POLICE MUNNAR), REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl..M.P. No.3358/2002 in Crl.R.P. No.510/2002 Dismissed 6-11-2009 Sd/-P.Q. Barkath Ali, Judge. /true copy/ P.S. to Judge. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 510 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 6th day of November, 2009 O R D E R Revision petitioner is the first accused in C.C. No. 99 of 1994 on the file of the Judicial Magistrate of the First Class, Devikulam and the appellant in Crl.A.No.201 of 1998 of the Sessions Court, Thodupuzha. He was convicted under sections 454, 461, 380 read with section 34 IPC and sentenced to under go rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months under each of the sections 454 and 380 IPC and also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default to undergo rigorous imprisonment for one month under section 461 IPC. Substantive sentences were ordered to run concurrently. The case against the second accused was split up, as he was absconding. The conviction and sentence of the revision petitioner were confirmed in appeal by the Sessions Court. The first accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as shaped in evidence, before the trial Crl.R.P. 510/02 2 court was that on June 19, 1993 t about 8.30 A.M. the revision petitioner along with the second accused in furtherance of their common intention trespassed into the house of PW3 situated in the south division of Nallathanni Estate and committed theft of Rs.1,000/-, one pair of ear studs weighing ½ sovereign worth Rs.1,750/-, a pair of gold kolusu worth Rs.300/-, wrist watch worth Rs.375/- and 20 audio cassettes and that thereby committed the offences punishable under sections 454, 461, 380 read with section 34 IPC. 3. Revision petitioner on appearance before the trial court pleaded not guilty to a charge under sections 454, 461, 380 read with section 34 IPC. PWs.1 to 7 were examined and Exts.P1 to P6 and MOs.1 and 2 were marked on the side of the prosecution. The trial court on an appreciation of the evidence found the revision petitioner guilty of the offences punishable under sections 454, 461, 380 read with section 34 IPC, convicted him thereunder and sentenced him as aforesaid, which was confirmed in appeal. The first accused has come up in revision challenging his conviction and sentence. 4. Heard the learned counsel for revision petitioner and the learned Public Prosecutor. 5. The following points arise for consideration : Crl.R.P. 510/02 3 1) Whether the conviction of the revision petitioner under sections 454, 461, 380 read with section 34 IPC by the trial court which is confirmed in appeal by the lower appellate court can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. The case of the prosecution is that the revision petitioner along with the second accused criminally trespassed into the house of PW3 and committed theft of Rs.1,000/-, one pair of ear studs weighing ½ sovereign worth Rs.1,750/-, a pair of gold kolusu worth Rs.300/-, wrist watch worth Rs.375/- and 20 audio cassettes. PWs.1 to 7 were examined and Exts.P1 to P6 were marked on the side of the prosecution before the trial court. The main question for consideration is whether there is any evidence against the revision petitioner to show that he has committed the offences. 7. PW1 is a witness to scene mahazar Ext.P1. PW2 is an independent witness. He turned hostile and did not support the prosecution. PW3 is the owner of the house. He testified about the theft committed in his house. Ext.P2 is the statement given by him before the police. He testified MO1 as being the alleged stolen watch. PW4 was given up. PW5 is the son of PW3. He has also identified MO1 as the watch stolen from his house. He has informed that the accused was found nearby his house. PW6 is an attestor to mahazar Ext.P3. PW7 registered the F.I.R. on the basis of Ext.P5. He Crl.R.P. 510/02 4 prepared Ext.P1 scene mahazar. He questioned the witnesses and recorded their statements. He arrested the first accused and on questioning, the revision petitioner produced from his house MO1 watch, which was taken into custody as per mahazar Ext.P3. Evidence of PWs.3 and 5 would clearly show that MO1 watch was stolen from the house of PW3, which was identified by PWs.3 and 5. 8. The trial court as well as the lower appellate court has inferred that the revision petitioner committed theft as alleged by the prosecution on the basis of recovery of MO1 watch from his house. But in my view from recovery of MO1 watch did not show that it was the first accused who has committed the theft. He can only be found in possession of stolen article, which is an offence punishable under section 411 IPC. Therefore, the conviction of the revision petitioner under sections 454, 461, 380 read with section 34 IPC cannot be sustained. He can be convicted under section 411 IPC for having been in possession of stolen property. 9. As regards the sentence, the article seized was only a watch worth Rs.350/-. Further incident is of the year 1993. That apart, at the time of incident the revision petitioner was only 18 years of age. Taking into consideration all these aspects, I feel that sentence of imprisonment till the rising of court and fine of Rs.5,000/- would meet the ends of justice. Crl.R.P. 510/02 5 10. In the result, the revision petition is allowed in part. Conviction of the revision petitioner under sections 454, 461, 380 read with section 34 IPC rendered by the trial court, which was confirmed in appeal by the lower appellate court is set aside and the revision petitioner is convicted under section 411 IPC. He is sentenced to undergo imprisonment till the rising of court and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for one month. His bail bonds are cancelled. Two months' time is granted for payment of the fine. The revision petitioner shall surrender before the trial court on or before 15-12-2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. 510/02 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P. No. 510 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- O R D E R 6 th day of November, 2009