IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 CRL.A.No. 1114 of 2010(D) ------------------------- SC.1037/2008 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT/(RESPONDENT): ------------------------------------------ MUTHAPPAN @ RAJAN @ BABU, C.NO.7437, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. ADV.ADEEP ANWAR[STATE BRIEF] RESPONDENT/ (APPELLANT): ------------------------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR, SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011, ALONG WITH CRA NO. 1115 OF 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A.Nos.1114 and 1115 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 8th day of February, 2011 JUDGMENT Both these appeals arise out of the same judgment dated February 15, 2010 in S.C. No.1037 of 2008 on the file of the District and Sessions Judge Fast Track Court-I, Thrissur convicting accused 1 to 4 therein under sections 457, 380 and 461 read with section 34 IPC and sentencing them to undergo rigorous imprisonment for three years under section 457 read with section 34 IPC, rigorous imprisonment for four years under section 380 read with section 34 IPC and rigorous imprisonment for one year under section 461 read with section 34 IPC. The sentences were ordered to run concurrently. Crl.A. Nos.1114 and 1115 of 2010 are filed by accused 1 and 3 respectively in the above case challenging their conviction and the sentence imposed by the trial court. 2. The case of the prosecution, as testified by PWs.1 to 7 before the trial court and as revealed from Ext.P1 First Information Statement, in brief, is this:- PW1 Mohammed Salim CRA. No.1114/2010 & con. case 2 was residing in IV/450 of Kaipamangalam Panchayat. He was a Cable Technician. PW2 is his wife. On May 1, 2008 in the night PW2 woke up on hearing the cries of her child. She found the doors of the house were opened. She called her husband. PWs.1 and 2 after switching on the light, looked outside the house. They found accused 1 to 4 lurking there and on seeing them, the accused persons ran away. On searching the house, it was found that one mobile phone and a wrist watch were missing. Currency notes worth Rs.7,000/- and a gold ring weighing one sovereign from the almirah were also missing. He informed his neighbours about the theft and in the morning he went to the police station and complained about the same. PW7 the then Sub Inspector of Police attached to Mathilakam Police Station recorded statement of PW1 and registered the case. Accused 1 to 4 were arrested in connection with another case and on questioning them, PW7 came to know that they were involved in this case also. They were got identified by PWs.1 and 2. On the basis of the information given by the CRA. No.1114/2010 & con. case 3 2nd accused, MO1 mobile phone was recovered as per Ext.P4 seizure mahazar in the presence of PW6 independent witness. The 5th accused was made an accused in this case on the basis of the statement made by PW4 that he happened to purchase the stolen property from PW5. On the basis of information given by him, MO2 gold ring was recovered from PW4. PW7 the then Investigating Officer questioned the witnesses and after completing the investigation, he laid charge before committal court. As the offences are exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Thrissur from where it was made over to the lower court for trial and disposal. 3. Initially there were 5 accused persons in this case. During the pendency of the case before the trial court charge against the 5th accused abated. Accused 1 to 4 on appearance before the trial court pleaded not guilty to charge under sections 457, 380, 461 and 413 read with section 34 IPC. PWs.1 to 7 were examined and Exts.P1 to P8 CRA. No.1114/2010 & con. case 4 and MO1 to MO3 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., accused 1 to 4 denied having committed any offence. No defence evidence was adduced. 4. On an appreciation of the evidence, the trial court found that accused 1 to 4 had committed the offences alleged against them, convicted them thereunder and sentenced them as aforesaid. Accused 1 and 3 have come up in appeal challenging their conviction and sentence. 5. Appellants are represented by State brief. Heard learned counsel for the appellants and learned Public Prosecutor. 6. The following points arise for consideration : 1) Whether accused 1 to 4 have committed house trespass in the night on May 1, 2008 and committed theft, as alleged by the prosecution? 2) Whether accused 1 to 4 dishonestly taken away property of PW1 after breaking open the almirah ? 3) Whether the conviction of the appellants under sections 457, 380, 461 read with section CRA. No.1114/2010 & con. case 5 34 IPC can be sustained ? 4) Whether the sentence imposed is excessive or unduly harsh ? 7. Point Nos.1 to 3:- PWs.1 to 7 were examined and Exts.P1 to P8 and MO1 to MO3 were marked on the side of the prosecution to prove the offences alleged against accused 1 to 4. PW1 is the de facto complainant and PW2 is his wife. PW3 is a witness to the scene mahazar Ext.P2. PW4 is the person who purchased the gold ring MO2 from the 5th accused Mohanan. The police recovered MO2 from PW4 on the basis of information given by the 5th accused. PW5 is a witness to the mahazar Ext.P2 for recovery of MO2 from PW4. PW6 is a witness to the recovery of MO1 mobile phone, as per seizure mahazar Ext.P4. PW7 is the then Sub Inspector of Police, who recorded the First Information Statement Ext.P1 from PW1. registered the case, conducted the investigation and laid the charge before the committal court. 8. The evidence of PWs.1 and 2 was mainly criticized CRA. No.1114/2010 & con. case 6 on the ground that as the incident happened in the night, there would not have been sufficient light to identify the accused persons. There is no substance in the above contention. PWs.1 and 2 had categorically stated that they switched on the light and at that time they found accused 1 to 4 standing outside the house and on seeing them, they ran away. There is nothing to suspect the credibility of the evidence of PWs.1 and 2. Their evidences clearly show that on the date of incident in the night they found accused 1 to 4 lurking outside the house and running away on seeing them. Their evidence also proved that at that time one mobile phone, one watch, Rs.7,000/- and a gold ring were found missing from the house of PW1. 9. Next question to be considered is whether accused 1 to 4 committed theft in the house of PW1. There is evidence of PWs.1 and 2 that accused persons were found lurking outside the house at that time. That apart recovery of MO1 mobile phone, MO2 gold ring was also proved by the evidence of PW7 recovery officer and PW6 witness to CRA. No.1114/2010 & con. case 7 the seizure mahazar. PWs.1 and 2 identified MO1 and MO2 as mobile phone and gold ring used by them. The above facts clearly show that it was accused 1 to 4 who have trespassed into the house of PW1 in the night on May 1, 2008 and committed theft of MO1 and MO2 from the house. That being so, the conviction of appellants/accused 1 and 3 under sections 457, 380, 461 read with section 34 IPC has to be confirmed and I do so. 10. Point No.4:- As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three years under section 457 read with section 34 IPC, rigorous imprisonment for four years under section 380 read with section 34 IPC and rigorous imprisonment for one year under section 461 read with section 34 IPC. Considering the serious nature of the offences committed by the appellants/accused 1 and 3, I feel that the sentence imposed on them by the trial court is not excessive or unduly harsh. Therefore, the sentence imposed by the trial court on appellants/accused 1 and 3 have to be confirmed . CRA. No.1114/2010 & con. case 8 11. In the result, confirming the conviction and sentence of the appellants/accused 1 and 3 by the trial court, both the appeals are dismissed. P.Q.BARKATHALI, JUDGE mn CRA. No.1114/2010 & con. case 9 P.Q.BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ Crl.A.Nos. 1114 & 1115 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~ JUDGMENT 8-2-2011