IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Crl.Rev.Pet.No. 689 of 2005(A) ------------------------------ CC.451/1999 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM CRA.120/2000 of ADDL.SESSIONS COURT,-I, MAVELIKKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED. ------------------------------------ RAJENDRA PRASAD, 45 YEARS, S/O.GOPALA PILLAI, VALIAVEETTIL PARAMBIL HOUSE, VELOOR, KOTTAYAM VILLAGE. BY ADV. SRI.K.K.RAJEEV RESPONDENTS: RSPONDENT/COMPLAINANT. ----------------------------------- STATE OF KERALA, REPREENTED BYTHE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. M.S. BREEZ THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-03-2008 THE COURT ON 19/03/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. No. 689 of 2005 * * * * * * * * * * * * * * * * * * Dated: 19-03-2008 ORDER In this Revision filed by the first accused in c.C. No. 451 of 1999 on the file of the J.F.C.M. , Kayamkulam for offences punishable under Sections 461, 380 and 411 I.P.C. read with Sec. 34 I.P.C., he challenges the conviction entered and the sentence passed against him concurrently by the courts below for the aforementioned offences. 2. The case of the prosecution can be summarised as follows:- On 5-12-1998 at about 1.30 a.m. the first accused committed lurking house trespass by night into the house of P.W.2 at Kayamkulam near K.P.A.C. junction road leading to St. Mary's School by breaking open the northern door of the office room on the downstairs and committed theft of T.V., C.D. Player and Cellphone from the hall of the house and certain gold ornaments from the upstair of the house altogether worth Rs. 22,100/-. Thereafter the first accused sold the T.V. to the 2nd Crl.R.P. 689 of 2005 -:2:- accused who purchased the same knowing it to be stolen property. The accused Nos. 1 and 2 have thereby committed offences punishable under Sections 447, 451, 380 and 411 read with Sec. 34 I.P.C. 3. On the accused pleading not guilty to the charge framed against them by the J.F.C.M., Kayamkulam, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 11 witnesses as P.Ws 1 to 11 and got marked 7 documents as Exts.P1 to P7 and 4 material objects as MOs 1 to 4. 4. The accused denied the incriminating circumstances put to them and maintained their innocence. They did not adduce any defence evidence. 5. The learned Magistrate, after trial, as per judgment dated 5-5-2000 found the 2nd accused not guilty and acquitted him of all the offences but convicted the revision petitioner/first accused for offences punishable punishable under Sections 457 and 380 I.P.C. and acquitted him of the offence under Sec. 461 I.P.C. The revision petitioner was sentenced to rigorous imprisonment for two years and to pay fine of Rs. 5,000/- and on default to pay the fine to undergo rigorous Crl.R.P. 689 of 2005 -:3:- imprisonment for three months under Sections 457 and 380 I.P.C. each. On appeal preferred by the revision petitioner as Crl. Appeal No. 120 of 2000, Addl. Sessions Judge-I, Mavelikkara , as per judgment dated 30-11-2004 dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioner. Hence this Revision. 6. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- The F.I.R. in this case was lodged only after two days of the occurrence. P.W.7 who was a witness to the recovery had turned hostile. P.W.1 was in Bangalore and the key of his house entrusted with one Thankappan Nair who was not examined. P.W.1 has not kept any bills regarding the material objects. Petitioner has produced medical certificates to show that he had a cardio vascular accident. The sentence imposed on the revision petitioner is excessive. 7. I am afraid that I cannot agree with the above submissions. In theft cases failure to lodge a complaint is not fatal to the prosecution because there may be a host of reasons which may persuade the owner of a house where theft has taken Crl.R.P. 689 of 2005 -:4:- place from not taking the trouble of going to the police station and lodging a complaint. When even failure to lodge a complaint is not fatal to the prosecution, the delay of two days in lodging the complaint by P.W.2 cannot be looked upon with suspicion. 8. After the apprehension of the revision petitioner his custody was obtained by P.W.10 from J.F.C.M., Ambalappuzha. After obtaining the revision petitioner on police custody when he was questioned he gave Ext.P2 (a) statement resulting in the recovery of MO1 T.V. from the 2nd accused who has been found to be a bonafide purchaser. The further confession made by the revision petitioner resulted in the recovery of MO2 C.D. Player, MO3 Calculator and MO4 Cell phone from his house. P.W.1 has credibly deposed that MOs 1 to 4 are four of the properties stolen from his house. The learned Magistrate who had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe the prosecution witnesses. This Court sitting in revision will be loathe to interfere with the concurrent findings recorded by the courts below. The conviction entered against the petitioner is accordingly confirmed. 9. The sentence imposed on the revision petitioner also cannot be said to be excessive or disproportionately harsh. The Crl.R.P. 689 of 2005 -:5:- petitioner is admittedly involved in five other crimes similar in nature and is a habitual offender. I, therefore, do not find any illegality in the sentence imposed on the revision petitioner. In the result, this revision is dismissed confirming the conviction entered and the sentence passed against him the revision petitioner. Sd/-V. RAMKUMAR, JUDGE ani/ /true copy/