IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2607 of 2004(A) ------------------------------- CRA.796/2001 of ADDL.SESSIONS COURT, PARAVUR CC.422/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- SALIM, S/O. MUHAMMED, AMBALATHINGAL VEEDU, MUTHUNKUZHI BHAGAM, KEEZHUMADLKARA, ALUVA EAST VILLAGE. BY ADV. SRI.R.PADMARAJ SRI.BIJU HARIHARAN RESPONDENT(S): RESPONDENT :COMPLAINANT: --------------------------- KERALA STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2607 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2009 ORDER Revision petitioner is the first accused in C.C.No.422/1997 of Judicial First Class Magistrate - I, Aluva and appellant in Crl.Appeal No.796/2001 of Additional Sessions Court, North Paravur. He along with second accused was convicted for the offences punishable under Section 457, 380 and 461 read with Section 34 of IPC by the trial court and sentenced to undergo rigorous imprisonment for two years each under Section 457 IPC and to pay a fine of Rs. 500/- each in default to undergo simple imprisonment for six months each. He was further sentenced to undergo rigorous imprisonment for one year each under Section 461 of IPC and rigorous imprisonment for one year each under Section 380 of IPC . They were also directed to pay a fine of Rs. 500/- each , in default to undergo simple imprisonment for three months each which is confirmed in appeal. The first accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on October 24,1996 in the knight the revision Crl.R.P.NO.2607/04 Page numbers petitioner along with second accused with the common intention of committing theft committed lurking house trespass in the night in the house bearing No.307 in Ward III of Keezhmedu Panchayat belonging to PW2 and committed theft of camera worth Rs. 30,000/- and two cameras worth Rs. 2500/- each , another camera valued Rs. 1500/-, two gold rings worth Rs. 4,000/- and ear rings valued Rs. 1,000/-. It is also alleged that the accused persons have committed theft of Sanio Electronics torch worth Rs. 1,000/- , Quartz clock worth Rs. 150/- etc. and that thereby committed the offences punishable under Sections 457, 461 and 380 of IPC r/w Section 34 of IPC. 3. The accused persons on appearance before the trial court pleaded not guilty to a charge under Sections 457, 380 and 461 read with Section 34 of IPC. PWs 1 to 6 were examined and Exts.P1 to P7 and MOs 1 to 9 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, the accused persons denied the allegations against them. 4. The trial court on an appreciation of evidence found the accused persons guilty of the offences punishable under Sections 457, 380 and 461 read with Section 34 of IPC, convicted them thereunder Crl.R.P.NO.2607/04 Page numbers and sentenced them as aforesaid. Their conviction and sentence was confirmed in appeal. The first accused has now come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Sections 457, 380 and 461 read with Section 34 of IPC rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. PW1 is the person from whose possession articles were stolen. PW2 is the father of PW1. PW3 is the attestor to the Mahazar Ext.P3. PWs 1 and 2 gave a consistent version about the theft taken place in the house . They have identified MOs 1 to 9 being the articles stolen from the house. Seizure of MOs 1 to 9 from the house of first accused is proved by the evidence of PWs 5 and 6. The articles were also identified by PW1. It is also found that the recovery of MOs 1 to Crl.R.P.NO.2607/04 Page numbers 9 were effected in pursuance of the disclosure statement given by the accused persons. For all these reasons, in my view the lower appellate court is perfectly justified in accepting the evidence adduced on the side of the prosecution and hold that MOs 1 to 9 were recovered from the house of the revision petitioner. 7. Counsel for the revision petitioner argued that PWs 1 and 2 testified that MOs 1 to 9 were entrusted to them for repair by various persons and they could not remember all those persons who have entrusted them and that therefore identity of MOs 1 to 9 is not properly proved without examining the real owners of the articles. There is no merit in the above contention. PWs 1 and 2 being the persons who conduct repair of those articles, one cannot expect to remember all the persons who have entrusted those articles to them. They have identified those articles being stolen from their house. It was testified by PW1 that the owners of articles would come and identify those articles. Therefore, I find no merit in the above argument advanced by the counsel for the revision petitioner. The theft occurred on October 24, 1996. The articles MOs 1 to 9 were recovered from the house of revision petitioner on 27-10-1996. That being so, the trial court is Crl.R.P.NO.2607/04 Page numbers perfectly justified in drawing presumption under Section 114 (a) of Indian Evidence Act that the revision petitioner and second accused are the persons who have committed lurking house trespass and breaking open the lock and committed theft of MOs 1 to 9. For all these reasons, I am inclined to confirm the conviction of the revision petitioner under Sections 457, 380 and 461 read with Section 34 of IPC. 8. As regards the sentence, the trial court sentenced the revision petitioner and second accused to undergo rigorous imprisonment for two years each under Section 457 IPC and to pay a fine of Rs. 500/- each in default to undergo simple imprisonment for six months each. They were further sentenced to undergo rigorous imprisonment for one year each under Section 461 of IPC and rigorous imprisonment for one year each under Section 380 of IPC . They were also directed to pay a fine of Rs. 500/- each , in default to undergo simple imprisonment for three months each which is confirmed in appeal. It is brought to my notice that the second accused has filed Crl.Appeal No.847/2001 before the Sessions Court, North Paravur in which the the Sessions Court has released the second accused under Probation of Offenders Act . In the present case also revision Crl.R.P.NO.2607/04 Page numbers petitioner was aged 19 at the time of commission of offence. No previous conviction is pleaded or proved. Therefore in this case also, I feel that the revision petitioner can be released as provided under Section 3 of Probation of Offenders Act on executing a bond for a period of one year. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Sections 457, 380 and 461 read with Section 34 of IPC rendered by the trial court which is confirmed in appeal is upheld. The sentence is modified to the effect that revision petitioner shall be released on executing a bond for Rs. 25,000/- for a period of one year as provided under Section 3 of Probation of Offenders Act with two solvent sureties for like sum each. The revision petitioner shall appear before the trial court on 08-01-2010 to execute the bond. P.Q.BARKATH ALI JUDGE sv.