IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 Crl.Rev.Pet.No. 325 of 2004(A) ------------------------------------------------- CRA.442/2002 of III ADDL. SESSIONS COURT (ADHOC-I), THRISSUR CC.205/1999 of JFCM-I, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: KUTTIKRISHNAN, S/O. RAMAPPAN, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/RESPONDENTS/COMPLAINANT: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.325 of 2004 -------------------------- ORDER Petitioner, the accused in C.C.No.205/1999 on the file of Judicial First Class Magistrate's Court-I, Thrissur, was convicted and sentenced to simple imprisonment for one year for the offence under Section 379 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No.442/2002. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that as per the evidence of PW2, she had given a statement immediately after the theft and if that be so, it should be the first information and Exhibit P1 CRRP 325/04 2 report cannot be the first information. Learned counsel argued that PW2 did not identify the petitioner from the box and he was only referred to as an accused and therefore, there was no proper identification. It was further argued that as per Exhibit P2 seizure mahazar, the seizure was from the pocket of the shirt. But the evidence of PW4 is that it was seized from the pocket of the pants and this discrepancy was not properly appreciated and on these facts, petitioner is entitled to be acquitted. Learned counsel argued that in any case, when there is no other case against the petitioner, in the interest of justice, he should have been granted the benefit of Probation of Offenders Act. 4. Learned Public Prosecutor pointed out that petitioner was caught red handed and MO1, the stolen chain, was recovered from the body of the petitioner immediately after the theft and on the evidence, there is no reason to interfere with the conviction and sentence. CRRP 325/04 3 5. Prosecution case is that PW2, the Lab Attender of St.Mary's College, Thrissur, was walking towards North Bus Stand, Thrissur at about 4.15 p.m. on 25.3.1999. Petitioner came from behind and snatched her chain and ran away. PW2 followed him. By that time people gathered and caught hold of the petitioner. Getting wireless message, PW4, along with police party, reached there and took the petitioner to the police station and submitted Exhibit P1 report, based on which, the crime was registered. MO1 chain was recovered from the pocket of the shirt of the petitioner under Exhibit P2 mahazar and after completing the investigation, charge was laid. 6. Petitioner pleaded not guilty. Prosecution examined seven witnesses and marked three exhibits and identified MO1. Petitioner did not adduce any evidence. 7. Learned Magistrate, on the evidence found the petitioner guilty. He was convicted and CRRP 325/04 4 sentenced for the offence under Section 379 of Indian Penal Code. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the findings. Argument of the learned counsel is that evidence was not properly appreciated. 8. PW1 had given evidence that he had heard a sound and was informed that chain of a lady was snatched away by a person and the culprit was caught hold of by the local people and taken to the police station. He has no personal knowledge with regard to the theft or the recovery. PW2, the victim, deposed that while she was walking towards North Bus Stand, petitioner came from behind and snatched her chain and ran away. Though PW2 followed him, she could not catch him. It is her evidence that people followed him and he was restrained and police came there and took the petitioner to the police station. Though PW2 deposed that she had given a statement, that does not mean that, that statement was furnished before CRRP 325/04 5 Exhibit P1 report was submitted by PW4 or the case was registered. On a reading of the evidence of PWs 2 and 4, it is clear that though PW2 followed the culprit, she could not catch him and the local people caught the petitioner and on getting wireless message PW4 and police party reached there. Getting assured that the stolen chain is with the petitioner, he was taken to the police station. Evidence of PW2 establishes that she reached the police station only subsequently. Therefore, even if PW2 had given a statement, it was only subsequent to the registration of the crime. Argument of the learned counsel that Exhibit P1 report cannot be accepted as the first information can only be rejected in the light of the evidence. 9. PW2 identified the petitioner as the accused. Argument is that she did not point out the petitioner. But, it is to be noted that there was only one accused and PW2 was giving evidence that CRRP 325/04 6 it is the petitioner who snatched away her chain and she followed him and the local people caught him and the police also reached there. On a careful analysis of the evidence of PW2, I find no reason to disbelieve her evidence or identification of the petitioner as the person who snatched her MO1 chain. 10. Evidence of PWs 4 to 6 with Exhibit P2 mahazar establish that after petitioner was taken to the police station, on search, MO1 chain was recovered. I find no reason to disbelieve the seizure of MO1 as proved by the evidence of PWs 4 and 5. Evidence establish that MO1 chain, which was snatched away from the neck of PW2, was recovered from the petitioner soon after the theft. On the evidence, courts below rightly accepted the seizure as well as the identity of the petitioner as the person who snatched the chain. In such circumstances, conviction of the petitioner for the offence under Section 379 of Indian Penal Code is CRRP 325/04 7 perfectly legal. 11. Then the only question is regarding the sentence. Learned counsel pointed out that prosecution has no case that petitioner was involved in any other case previously. In such circumstances, considering the fact that the incident was in 1999, interest of justice will be met if the question of granting the benefit of benevolent provisions of Probation of Offenders Act is considered by the learned Magistrate after getting a report from the District Probation Officer. For considering the question whether the benefit of Probation of Offenders Act is to be granted to the petitioner or not, the case is remanded to Judicial First Class Magistrate-I, Thrissur. Revision is allowed in part. Conviction of the petitioner for the offence under Section 379 of Indian Penal Code is confirmed. The sentence awarded by the Magistrate, as confirmed by CRRP 325/04 8 Additional Sessions Judge, is set aside. Judicial First Class Magistrate-I, Thrissur is directed to consider the question whether petitioner is to be granted the benefit of benevolent provisions of Probation of Offenders Act on getting a report from the District Probation officer. Learned Magistrate shall call for a report on the petitioner from the District Probation Officer and consider the question whether the benefit under the Act is to be granted to the petitioner or not. Petitioner is directed to appear before the Magistrate on 16.08.2010. Send back the records immediately. 2nd August, 2010 (M.Sasidharan Nambiar, Judge) tkv