IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 Crl.Rev.Pet.No. 1416 of 2002() ------------------------------ CRA.6/1998 of SESSIONS COURT, MANJERI CC.316/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SHAMSUDHEEN, S/O. KOYAMU KUNNUMMAL HOUSE, KARUVARAKUNDU, CHIRAKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PANDIKKAD POLICE STATION, MALAPPURAM DISTRICT - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KRALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.10367/02 & 1679/03 IN CRRP 1416/02 DISMISSED 24/5/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PS to Judge. M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 1416 OF 2002 =========================== Dated this the 24th day of May,2010 ORDER Petitioner is challenging the concurrent conviction and modified sentence in Crl.A.6/1998 by Sessions Judge, Manjeri in this revision. Petitioner was convicted and sentenced to rigorous imprisonment for one year for the offence under section 457 of Indian Penal Code and six months for the offence under section 511 of Section 380 of Indian Penal Code by Judicial First Class Magistrate's Court-II, Perinthalmanna. Learned Sessions Judge while confirming the conviction reduced the sentence to simple imprisonment for four months for the offence under section 457 of Indian Penal Code and simple imprisonment for one month for the offence under section 511 of Section 380 of Indian Penal Code with a direction that both Crl.R.P.1416/2002 2 the sentence shall run concurrently. Petitioner is challenging the conviction contending that courts below did not properly appreciate the material contradictions. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel is that the very prosecution case is that PW1 woke up hearing the sound while he was sleeping in the early hours of 21.7.1995 and he found a person trying to open the window by inserting hand and the scene mahazar shows that there is no ventilator and therefore the prosecution case should have been disbelieved. It is argued that PW1 could not have identified the accused as he had not seen the person at that time and the contradiction in the evidence of Pws.1 and 2 that petitioner was produced before the police at the house of PW1 and the version of the Sub Inspector that petitioner was brought to the police station by PW1 on the Crl.R.P.1416/2002 3 next day at 8 a.m were not properly appreciated and in such circumstances the conviction is to be set aside. 4. Prosecution case is that at about 3 a.m on 21.7.1995 PW1 was sleeping in his house and while so he heard a sound. When he flashed torch light, he found a person trying to open the window. Seeing the torch light, that person tried to run away followed by PW1. Hearing the sound neighbours also reached there. In his attempt to escape, petitioner fell in a well in that compound. He was taken from the well by PW2 and others. Even if the argument of the learned counsel is accepted that in the absence of a ventilator, petitioner could not have been inserted his hand into the bed room of PW1 as the window was closed from inside, that will not affect the prosecution case. Prosecution case to the extent that PW1 heard the sound and he woke up and found a person standing outside trying to open the window has to be accepted. It is more so, when the case of PW1 is that when PW1 flashed Crl.R.P.1416/2002 4 the torch light petitioner tried to escape by running and traced by PW1 and in that process petitioner fell inside the well and he was taken out of the well by PW2 and others. Though learned counsel appearing for the petitioner tried to explain the presence of the petitioner inside the well on the ground that one of his relative is residing nearby, such an explanation cannot be believed at all especially in the nature of the case. Learned Magistrate and the learned Sessions Judge appreciated the evidence in the proper perspective. I find no reason to interfere with the concurrent findings of the courts below that petitioner attempted to commit theft in the house of PW1 after committing house trespass at about 3 a.m on 21.7.1995. Conviction of the petitioner for the offence under sections 457 and 511 of 380 IPC is perfectly legal and in order and warrants no interference. Then the question is only regarding the sentence. Learned Sessions Judge had taken a very Crl.R.P.1416/2002 5 lenient view and reduced the substantive sentence to only simple imprisonment for four months for the offence under section 457 and simple imprisonment for one month for the offence under section 511 of Section 380 I.P.C. I find no reason to interfere with the sentence also. Petition is dismissed. Petitioner is entitled to get set off, if any, under section 428 of the Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006