IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Crl.Rev.Pet.No. 452 of 2001(A) ------------------------------ CC.152/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PALA CRLA.NO.282/1999 OF ADDL.SESSIONS COURT, KOTTAYAM. .................... REVN. PETITIONER: ---------------------------------- SELVARAJAN, CONVICT.NO.944, CENTRAL PRISON, VIYYUR. BY ADV. ADV.PREMCHAND R NAIR (STATE BRIEF) RESPONDENTS: ----------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON 05/08/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.452 of 2001 =================== Dated: 5.08.2008 O R D E R In this revision preferred from the Central Prison, Viyyur, the petitioner who was the accused in C.C. No.152 of 1997 on the file of the J.F.C.M, Palai for offences punishable under Sections 457 and 380 IPC challenges the conviction entered and the sentence passed against him for the aforementioned offences concurrently by the court below. 2. The case of the prosecution can be summarised as follows: Sometime between 8 a.m on 23.12.96 and 8 am on 25.12.06 the accused committed lurking house trespass in the night into the house bearing Building No.110 in ward No.1 of Uzhavoor Panchayat in Monippally village and Kara owned and occupied by PW1 and committed theft of a V.C.P. costing Rs.6,000/- and double cassette tape-recorder costing Rs.3750/- and two school bags costing Rs.150/-. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned Crl.R.P.No.452 of 2001 -:2:- offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 8 witnesses as P.Ws 1 to 8 and got marked 8 documents as Exts. P1 to P8. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 30.9.1999 found the revision petitioner guilty of the afore mentioned offences and sentenced him to rigorous imprisonment for two years both under Sections 457 and 380 IPC with a direction that the sentences shall run concurrently. On appeal preferred by the revision petitioner as Crl.Appeal No.282/1999 before the Addl. Sessions Court, Kottayam, the lower appellate court as per judgment dated 18.1.2001 dismissed the appeal, confirming the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. Crl.R.P.No.452 of 2001 -:3:- 6. I heard Adv. Sri.Premchand R Nair and learned Public Prosecutor Sri.C.M.Nazar who defended the State. 7. What is unravelled by the oral and documentary evidence in the case is the following:- PW1 who is a resident of Monippally had been to Trivandrum along with his family between 23.12.96 and 25.12.96. When he returned from Thiruvananthapuram, he noticed that someone had entered his house and committed theft of a tape-recorder, V.C.P. and two school bags. The front door of the house was seen broke open. PW1 went to the Kuravilangad Police Station from where PW7 the Assistant Sub Inspector recorded Ext.P1 F.I.Statement and registered Crime No.83 of 1996. Since the whereabouts of the culprit were not known, PW8 who was the Sub Inspector of Police of that Police Station investigated the case and filed a U.N.Report. The revision petitioner was arrested by the Thodupuzha Police and on interrogation of the revision petitioner since the complicity of the petitioner in the present case was revealed, the Sub Inspector of Police registered Crime No.189 of 1997 of Thodupuzha Police Station and forwarded the same to Crl.R.P.No.452 of 2001 -:4:- Kuravilangad Police Station along with Ext.P6 report. Thereupon PW8, the Sub Inspector of Police re-opened the investigation. The accused who had been produced before court was obtained back on Police custody. While in custody the revision petitioner gave Ext.P7(a) confession to PW8. On the strength of the said confession a tape-recorder, V.C.P. and school bags were recovered as per Exts.P2 and P7 mahazars on 30.04.97. PW1 identified those material objects as stolen propeties and they were handed over to PW1 on the strength of Kychit. 8. Eventhough the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 9. What now survives for consideration is the question as to the legality or otherwise of the sentence imposed on the Crl.R.P.No.452 of 2001 -:5:- revision petitioner. The facts of the case show that theft was committed from a residential house after breaking open into the same during the absence of the owner of the house in a daring manner and valuables were burgled. Penal servitude by way of incarceration alone will serve as an effective disincentive to such daring offences. I do not find any good reason to interfere with the conviction entered and the sentence passed. Accordingly, this Crl.R.P is dismissed. Dated this the 5 th day of August, 2008 V.Ramkumar, Judge. sj