IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Crl.Rev.Pet.No. 3337 of 2008() ------------------------------ CRA.312/2007 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK COURT (ADHOC-I), KOZHIKODE CC.916/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KOYILANDY .................... REVN. PETITIONER/ APPELLANT/ACCUSED NOS. 1 & 5:- -------------------------------------------------------------- 1. VINOD KUMAR @ VINOD, AGED 29 YEARS, S/O KUNHIRAMAN, MANGALACHALIL, ADUVAD, KODASERY, ATHOLI AMSOM, DIST. KOZHIKODE. 2. SATHYAN, @ UNNI, AGED 33 YEARS, S/O VELLAN, PONNOTH VEEDU, ATHYODI AMSOM, KOORACHUND, DIST. KOZIKODE. BY ADV. MR. K.M.FIROZ RESPONDENT/RESPONDENT/STATE:- ------------------------------------------ THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. P.A. SALIM, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Crl.R.P. No. 3337 of 2008 =================== Dated this the 24th day of February, 2010. O R D E R In this revision filed under Section 397 read with Sec. 401 Cr.P.C., the petitioners who were accused Nos. 1 and 5 in C.C. No.916 of 2004 on the file of the Judicial First Class Magistrate, Koyilandy for offences punishable under Sections 379 and 414 r/w Section 34 IPC, challenge the conviction entered and the sentence passed against them concurrently by the courts below. 2. The case of the prosecution can be summarised as follows: On 08.06.2004, accused Nos. 1 to 5 in prosecution of their common intention to commit theft, committed theft of a motor cycle bearing registration No. KL-12/A-5181 belonging to the de facto complainant and which was parked in the premises of his house bearing No. AP-1/336 of Atholi Panchayat in Modakkallur Amsom and Desom. Subsequently, on 19.06.2004, at about 3 a.m., A1, A4 and Crl.R.P. No. 3337/2008 -:2:- A5 were found riding the said motor cycle and they were arrested along with the motorcycle by the Sub Inspector of Police, Atholi Police Station. The accused have thereby committed the aforementioned offences. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned 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 10 documents as Exts. P1 to P10. 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 them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per Crl.R.P. No. 3337/2008 -:3:- judgment dated 29.03.2007 found A1, A4 and A5 guilty of the offences. Since A4 absconded thereafter, the sentence was pronounced against A1 and A5. For the conviction under Section 379 IPC, A1 and A5 were each sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- and on default to pay the fine, to suffer rigorous imprisonment for four months. Aggrieved by the conviction and the sentence A1, and A5 filed Crl. Appeal No.312 of 2007 before the Additional Sessions Court, Fast Track (Adhoc-I), Kozhikode. As per judgment dated 11.08.2008, the lower appellate court dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioners. Hence, this Revision by A1. 6. Even though the learned counsel appearing for the revision petitioners assailed on various grounds the conviction entered against the revision petitioners, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral Crl.R.P. No. 3337/2008 -:4:- and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 7. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioners. This Court had called for a report from the District Probation Officer. As per the report dated 28.01.2010, the Additional District Probation Officer, Kozhikode has, inter alia, reported regarding Vinod Kumar (A1) as follows:- The accused is a member of Scheduled Caste. The financial condition of his family is very poor. His house is situated in 4 cents of land and is made up of mud and bricks and it is in a dilapidated condition. Vinod and his family members plan to rebuild the house by getting some assistance from the Panchayat authorities. It was the bad company which induced him to commit the offence. He Crl.R.P. No. 3337/2008 -:5:- realises the fault committed by him and he blames his associates for his involvement in crime. He pleads that he was ignorant that the motorcycle was a stolen property. The Probation Officer has recommended release of the petitioner on probation. 8. Regarding the 2nd petitioner Sathyan @ Unni, the Probation Officer has reported as follows:- He is the cousin of the 1st revision petitioner Vinod Kumar. He is also a member of Scheduled Caste and belongs to lower middle class family. The area of his homestead is 10 cents and his house is recently renovated. Sathyan's family members do not consider him as an offender. There exists a deep emotional bond between the accused and his family members. Neighbours said that Sathyan is leading a decent life and none of his family members has any criminal antecedents. They Crl.R.P. No. 3337/2008 -:6:- opined that Sathyan is hard working and looks after the family. It was Sathyan who introduced Shaju Varghese, the prospective buyer of the motorcycle in question. The Probation Officer has recommended the release of Sathyan also on probation. 9. After considering the reports of the Probation Officer, I am inclined to release the revision petitioners on probation for a period of two years on each of them executing a bond before the trial court within two weeks from today with a power of supervision by the District Probation Officer before whom they shall be directed to report periodically. Accordingly, the petitioners are directed to be released on probation under the Probation of Offenders Act, 1958, as above. This revision is disposed of as above. Dated this the 24th day of February, 2010. V.RAMKUMAR, JUDGE. rv Crl.R.P. No. 3337/2008 -:7:-