IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.Rev.Pet.No. 3762 of 2007() ---------------------------------------- CRA.516/1998 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.380/1993 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ----------------------------------- SUGATHAN BABU @ BAU MARACHEENIVILAKOM VEEDU, PULAYANARKOTTA, CHERUVAIKKAL WARD, ULLOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.J.JAYAKUMAR RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3762 OF 2007 ............................................ DATED THIS THE 14th DAY OF NOVEMBER, 2008 ORDER Revision petitioner was convicted and sentenced for the offence under Section 457 and 379 of IPC by Additional Chief Judicial Magistrate, Thiruvananthapuram in C.C.380 of 1993. Conviction was confirmed by Additional Sessions Judge, Thiruvananthapuram in Crl.A.516 of 1998. Revision petition is filed challenging the conviction and sentence. Prosecution case was that PW1 and his wife PW2 were sleeping in their house on 10.1.1991 along with their children. On that night, revision petitioner snatched the chain worn by their daughter aged 1 ½ years and thereby committed the offence under Section 457 and 379 IPC. PW8, Sub Inspector of Pettah police station arrested petitioner from Pulayannarkotta Hospital compound at about 10 pm on 12.11.1991 in Crime 64 of 1991. When PW8 questioned revision petitioner, on the information furnished by revision petitioner and as led by revision petitioner, PW8 reached the jewellery shop of PW3 at Paravoor. PW3 produced MO1 gold chain sold by revision petitioner and purchased by PW3. After preparing Ext.P1 mahazar, in the presence of PW4, MO1 was CRRP 3762/2007 2 recovered. On reaching Pettah police station, PW8 prepared Ext.P3 F.I.R and registered Crime 118 of 1991. As the theft was committed within the jurisdiction of Medical College police station, F.I.R was transferred to Medical College police station PW5 Head Constable prepared Ext.P4 F.I.R and registered Crime 383 of 1991. After completing the investigation, charge was laid before learned Chief Judicial Magistrate. Petitioner pleaded not guilty. Prosecution examined Pws 1 to 8 and marked Exts.P1 to P4 and identified MO1. Petitioner did not adduce any evidence. 2. On the evidence, learned Magistrate found the petitioner guilty and convicted and sentenced him to rigorous imprisonment for two years each for the offences under Section 379 and 457 IPC. A fine of Rs.1000/- in addition to the sentence of imprisonment for the offence under Section 457 IPC was also awarded. Petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.A.516 of 1998. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction but modified the sentence to rigorous imprisonment for one year each. Revision petition is filed challenging the conviction and sentence. CRRP 3762/2007 3 3. Case of revision petitioner is that courts below did not properly appreciate the evidence and the identification of MO1 as a stolen article should not have been accepted. It was contended that due to the inconsistencies in the evidence of Pws 3 and 4, with regard to the nature of the chain, courts below should have found that it is not the stolen article and in any case, based on MO1, petitioner cannot be convicted. It is therefore contended that conviction and sentence is not sustainable. 4. Learned Public Prosecutor argued that learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. It was pointed out that MO1 gold chain is proved to be the stolen article by the evidence of Pws 1 and 2 and there is no reason to disbelieve their evidence. It was also argued that evidence of PW3 establishes that MO1 was sold to him by the revision petitioner and evidence of PW8 establishes that MO1 was recovered only on the information furnished by the revision petitioner. It is therefore argued that conviction and sentence is perfectly legal. 5. Learned Magistrate and learned Sessions Judge appreciated the evidence of Pws 1 and 2 and found their evidence credible and reliable. Evidence of PW1 corroborated by CRRP 3762/2007 4 PW2 establish that on the night of 10.1.1991, PW2, the mother along with the minor daughter were sleeping and during night somebody had snatched the gold chain from the neck of the minor daughter. Pws 1 and 2 identified MO1 as the gold chain snatched from the neck of the minor daughter on that night. Though Pws 1 and 2 were cross examined, nothing was brought out to disbelieve their evidence. The fact that evidence of PW1 that he had lodged a complaint on the next day was not supported by any material, is insufficient to disbelieve the evidence of theft or identification of MO1 as the stolen article. Courts below rightly accepted their evidence with regard to theft as well as identity of MO1 as a stolen article. 6. Evidence of PW8 establish that petitioner was arrested on the night of 11.11.1991 as he was found within the compound of Pulayannarkotta Hospital. Evidence of PW8 also establishes that when petitioner was questioned, on the information furnished by petitioner, MO1 was recovered from PW3. That evidence of PW8 is fully supported by the evidence of PW3 which is further corroborated by Ext.P1 recovery mahazar, a contemporaneous record prepared at the time of recovery. Evidence of PW3 establishes that MO1 gold chain was sold to CRRP 3762/2007 5 him by the revision petitioner in January 1991 and he purchased it from revision petitioner. Though PW3 was cross examined, with regard to the availability of the record showing purchase, PW3 deposed that he is not maintaining any record. It cannot be believed that PW3 would produce a gold chain weighing about 4 gms and thereby suffer a loss just to oblige the police, as canvassed by revision petitioner. PW4, the employee of PW3 also corroborated the evidence. Evidence of Pws 3 and 4 together establish that MO1 which is proved to be the stolen article, was in the possession of revision petitioner soon after the theft and was sold to PW3 and was later recovered by PW8 on the information furnished by revision petitioner. As possession of MO1 with PW3 was known exclusively to revision petitioner, the evidence of PW8 as to how MO1 was recovered, definitely connects revision petitioner with the theft. Therefore conviction of petitioner for the offence under Section 379 IPC is perfectly legal. 7. But the question is whether there is evidence to prove that revision petitioner committed the offence under Section 457 IPC as found by the courts below. Section 457 IPC provides punishment for lurking house trespass. Under the section, CRRP 3762/2007 6 whoever commits lurking house trespass by night, or house breaking by night, in order to commit an offence punishable with imprisonment, shall be punishable for the sentence provided therein. Section 454 make lurking house trespass or house breaking punishable. Under Section 451, whoever commits house trespass in order to commit an offence is punishable as provided therein. Lurking house trespass is defined under Section 443 IPC as whoever commits house trespass having taken precautions to conceal such house trespass from some person, who has a right to exclude or eject the trespasser from the building tent or vessel, which is the subject of house trespass. Under Section 442 IPC, house trespass is defined as whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place of worship, or as a place for the custody of property. House breaking is defined under Section 445. A person is said to commit house breaking who commits house trespass, if he effects his entrance into the house or any part of it in any of the six ways provided therein. Section 446 provides house breaking by night. Therefore in order to convict petitioner for an offence under Section 457, there should CRRP 3762/2007 7 be conclusive evidence to prove that petitioner committed a house trespass by night or house breaking by night. Except the fact that Pws 1 and 2 were inside the house and their minor daughter was sleeping along with PW2, there is no evidence to prove that revision petitioner had entered into the house or remained in the building so as to constitute a house trespass as provided under Section 442 IPC. Evidence of Pws 1 and 2 only show that the thief had committed theft by snatching the chain from outside through the window. Therefore on the failure of the prosecution to establish that revision petitioner either entered into the house or remained in the house or committed any house breaking as provided under Section 445, conviction for the offence under Section 457 IPC is not sustainable and can only be set aside. 8. Then the question is whether sentence warrants interference. An offence under Section 379 IPC is punishable with imprisonment which may extend to three years or fine or both. Learned Sessions Judge modified the sentence to rigorous imprisonment for one year. As petitioner is not a first offender and was also convicted in another case, he is not entitled to get the benefit of Probation of Offender's Act or any interference in CRRP 3762/2007 8 the sentence. 9. Revision petition is allowed in part. Conviction of petitioner for the offence under Section 457 IPC is set aside. Petitioner is found not guilty of the said offence and is acquitted. Conviction of petitioner and the sentence for the offence under Section 379 IPC is confirmed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-