IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 Crl.Rev.Pet.No. 1618 of 2008() ------------------------------ CRA.173/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC.229/2005 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY REVN. PETITIONER: 1. JOY THOMAS, S/O.THOMAS, VAYALILPARA VEEDU, KOLLIVAYAL, KANIAYMBETTA P.O, VYTHIRI. 2. BENNI @ BALAKRISHNAN, S/O.JOHN, PULAPPATTU VEEDU, PALLIKKUNNU P.O., VYTHIRI TALUK. 3. P.SURESH KUMAR, S/O.PONNU, KADAVAN QUARTERS, GHS ROAD, KANIAYMBETTA P.O., VYTHIRI. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENTS: STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, MEENANGADI POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.1618 of 2008 =================== Dated: 08.07.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioners who are the accused in C.C. No.229 of 2005 on the file of the J.F.C.M-1, Sulthanbathery for offences punishable under Sections 379,457 and 380 read with 34 I.PC challenge the conviction entered and the sentence passed against them for the aforementioned offences. 2. The case of the prosecution can be summarised as follows: During night of 9.8.02, the three accused persons in furtherance of their common intention of committing theft, committed house trespass into the building bearing No.MP VII/1081 of Menangadi Panchayat inside the Krishnagiri Estate, supervised by PW10 and entered the said building and committed theft of a Yamaha motor worth Rs.20,000/- and vanila vines worth Rs.3500/-. The accused have thereby committed the aforementioned offences. Crl.R.P.No.1618/2008 -:2:- 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 10 witnesses as P.Ws 1 to 10 and got marked 7 documents as Exts. P1 to P7. 4. After the close of the prosecution evidence, the accused were 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 judgment dated 31.07.06 found the revision petitioners guilty of the offences charged against them and sentenced each of them to undergo simple imprisonment for one year and to pay fine of Rs.2000/- and on default to pay the fine to suffer simple imprisonment for one month under Section 457 read with 34 IPC, simple imprisonment for two years and to pay fine of Rs.2000/- Crl.R.P.No.1618/2008 -:3:- and on default to pay the fine to suffer simple imprisonment for one month under Section 380 IPC and simple imprisonment for one year under Section 379 read with 34 IPC. On appeal preferred by the revision petitioners before the Sessions Court, Wayanad, as Crl.Appeal No.173 of 2006, the lower appellate court as per judgment dated 27.10.07 set aside the conviction and sentence passed by the trial court under Section 379 read with 34 IPC but confirmed the conviction entered and the sentence passed under Sections 457 and 380 read with 34 IPC against the revision petitioners. Hence, this Revision. 6. Eventhough 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 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. Having regard to the facts and Crl.R.P.No.1618/2008 -:4:- circumstances of the case, I do not think that the revision petitioners deserve penal servitude by way of incarceration for the said conviction. I am of the view that the interests of justice will be adequately met by imposing a sentence to be passed hereinafter. Accordingly, the sentence imposed on the revision petitioners under Sections 457 and 380 IPC are set aside and each of the petitioners is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand only) under Sections 457 and 380 IPC. From out of the fine amount a sum of Rs.20,000/-(Rupees twenty thousand only) shall be deposited before the trial court towards compensation to the owner of the property which was supervised by PW10 under Section 357(1) Cr.P.C. On failure to pay the fine, the defaulting accused shall undergo simple imprisonment for 4 months by way of default sentence. The fine amount shall be deposited before the trial court within two months from today. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. Dated this the 8 th day of July, 2008 V.Ramkumar, Judge. Crl.R.P.No.1618/2008 -:5:- sj