IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 Crl.Rev.Pet.No. 1197 of 2009() ------------------------------ CRA.565/2006 of SESSIONS COURT, TRIVANDRUM CC.774/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED. ------------------------------------------------------- RAJU,S/O.KARUNAKARAN, MUDUMPIL PUTHEN VEEDU, VENMANACKAL, KUMILI, PACHALLOOR DESOM, THIRUVALLAM VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT. -------------------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1197 of 2009 -------------------------------------- Dated this the 25th day of June, 2009. ORDER This revision is in challenge of judgment of learned Sessions Judge, Thiruvananthapuram in Crl.Appeal No.565 of 2006 confirming conviction of petitioner for offence punishable under Section 380 of the Indian Penal Code (for short, “the Code”) but modifying the sentence. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Nedumangad in C.C.No.774 of 2000 for offences punishable under Sections 457 and 380 of the Code. Case is that on 14.5.2000 at about 2 a.m. petitioner committed lurking house trespass in the house of PWs 1 and 2, and theft of gold bangle which PW1 was wearing. Learned magistrate found petitioner guilty for both offences. Learned Sessions Judge acquitted petitioner of the charge under Section 457 of the Code while confirming his conviction under Section 380 of the Code. It is contended by learned counsel that there is no reliable evidence to prove the incident and at any rate there is no proper identification of the offender and the gold bangle allegedly stolen. 2. PW1 is the wife of PW2. Their evidence is that on 13.5.2000 at about 11 p.m. they went to sleep in their bed room. Since their child was not well, they had not put on the fan. Window was kept open. Electric bulb in the bed room was switched on. At about 2 a.m. ( on 14.5.2000) PW1 felt as if Crl.R.P.No.1197/2009 2 something is touching her arm, she woke up and found the figure of a person outside the window. She raised alarm. Then that person moved into the compound. PW2 woke up, opened the door and went out. PW1 learnt that the gold bangle she was wearing is lost. PW2 stated that hearing the alarm of PW1 he woke up and found a person standing outside the window. He immediately opened the door and went out and then, that person was ran away from near the window, jumped over the compound wall and escaped. . PW2 identified the petitioner as the offender whom he had seen near the window. According to PWs 1 and 2, petitioner was brought to their house later when also they identified him as the offender. They identified MO1, gold bangle which PW1 was wearing and she lost in the incident. 3. PW5, Sub Inspector, Poojappura along with PW4, constable was on patrol duty on 14.5.2007 and at about 4.15 a.m. found petitioner at Valiyavila Junction in suspicious circumstances. He was arrested and questioned. MOs 1 and 2, gold bangle and a cutting player were seized from the possession of petitioner as per a mahazar, Ext.P1. PW5 registered case against petitioner. Case was then transferred to Vattiyoorkavu police since place of incident fell within the local limits of that station. PW7, Sub Inspector, Vattiyoorkavu re-registered the case. ExtP5 is the scene mahazar prepared by PW7. PW6 is an attestor in Ext.P1. Though in chief examination he stated that he attested the mahazar and identified his signature in Ext.P1, in cross examination he stated that he signed blank paper at the police station. PW4, constable who accompanied PW5 spoke in the same way of PW5. PW4 Crl.R.P.No.1197/2009 3 identified MO2. 4. So far as identity of the offender is concerned, it is true that PW1 initially stated that she found the figure of a person outside the window but she stated that she could identify the offender as petitioner and in court also, she identified him. Even if it is assumed that evidence of PW1 regarding identification is not reliable , evidence of PW2 is that he had identified the petitioner as the intruder. He claimed that there was street light also when the petitioner jumped over the compound wall and escaped. Thus, the identity of the offender is established through the evidence of PW2. At any rate seizure of MO1 from the possession of petitioner is proved by evidence of PWs 4 and 5 which gets corroboration from Ext.P1, contemporaneous record prepared by PW5. 6. So far as identification of MO1 is concerned, it is contended that PW1 was not able to speak about its fashion. It is stated that ladies have an uncanny sense of identifying their belongings. PW1 identified her gold bangle which was lost in the incident. There is no reason to disbelieve that. That petitioner committed theft as alleged by the prosecution is established and that finding required no interference. 7. Learned magistrate sentenced the petitioner to undergo rigorous imprisonment for two years and payment of Rs.2,000/- as fine for offence punishable under Section 480 of the Code. Learned Sessions Judge modified the substantive sentence to rigorous imprisonment for nine months. On submission of learned counsel , report of the Probation Officer concerned with Crl.R.P.No.1197/2009 4 antecedents and character of the petitioner is called for. That report is before me. It is seen that petitioner is involved in 35 cases, mostly relating to property. On going through the report of the Probation Officer and considering all relevant facts and circumstances of the case I am not inclined to think that it is expedient in the ends of justice to invoke the provisions of Section 4 of the Probation of Offenders Act. 8. So far as the sentence modified by the appellate court is concerned, I am satisfied that it is reasonable and required no further interference. This revision fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks