IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.REV.PET.NO. 1978 OF 2009() ------------------------------------------- CRA.775/2008 OF ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- ANILKUMAR @ ANIL, S/O.SURESH, C. NO.5694, CENTRAL PRISON, KANNUR/ BY ADV. SHRI BIJU MARTIN (STATE BRIEF) RESPONDENT(S) - STATE: ------------------------------------ STATE OF KERALA. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1978 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of June, 2009 O R D E R --------------- This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track Adhoc-1), Kozhikode in Crl. Appeal No.775 of 2008 confirming conviction and sentence of petitioner for offences punishable under Sections 454, 380 and 461 of the Indian Penal Code (for short, “the Code”). Case is that on 21.4.2007 between 8.00 a.m. 1.00 p.m. petitioner committed lurking house and trespass in B1 quarters in the occupation of P.W.1 and his wife and theft of various articles kept in the almirah. Learned magistrate found petitioner guilty, convicted and sentenced to undergo rigorous imprisonment for various periods. In appeal learned Sessions Judge confirmed the conviction and sentence. It is contended in this revision that conviction of petitioner is not sustainable in so far as there is no reliable evidence to prove the alleged incident. 2. P.Ws.1 and 2 are husband and wife. Their evidence is that on 21.4.1987 at about 8.00 a.m. they went out from B1 quarters in the Campus of Medical College Hospital, Kozhikode in connection with their duty after locking the door and returned at about 1.00 p.m. They saw the front door of the quarters opened and articles lying scattered in CRL. R.P. .No.1978 of 2009 -: 2 :- the room. A watch and silver ornament were found missing. They identified M.O.1 as the silver anklet which was stolen from their house. P.Ws.8 and 10 are police officials. According to them, P.W.8 arrested petitioner on 30.4.2007 in connection with crime No.192/2007. When questioned, petitioner confessed his involvement in the incident in the case on hand. On the information given by petitioner and as led by him, P.W.8 went to P.W.3 who produced M.O.1. Exhibit P2 is the mahazar for its seizure. Exhibit P2(a) is the relevant portion of the information which led P.W.8 to P.W.3. P.W.3 stated that he produced some articles before the police but he could not identify M.O.1 as the article in question. He however admitted that he purchased the articles from petitioner. P.W.4 is an attester in Ext.P2 but did not support prosecution. P.W.5 recorded the first information statement given by P.W.1 and registered the case. Exhibit P3 is the mahazar for scene of occurrence prepared by P.W.5. Exhibit P3 states that there was damage on the lock of the front door and that the articles were lying scattered in the room. 3. Contention advanced in the revision is that there is no evidence to prove the involvement of petitioner in the alleged incident. The incident was on 21.4.2007 and as per evidence of P.Ws.3 and 8, arrest of petitioner was on 30.4.2007. Though P.W.3 was not able to identify M.O.1 as the article he had produced before the police he CRL. R.P. .No.1978 of 2009 -: 3 :- admitted that he purchased articles (which he later produced before the police) from petitioner. Exhibit P2(a) is the relevant portion of the information which petitioner gave to P.W.8. Authorship of sale of the articles to P.W.3 is admitted by petitioner. Thus there is evidence that petitioner was found in possession of M.O.1, the stolen article. That door of the lock was opened and theft occurred in the quarters of P.Ws.1 and 2 are proved by their evidence which gets corroboration from Ext.P3, mahazar for scene of occurrence. I do not find reason to disbelieve the evidence given by witnesses. From recent possession of the stolen article with the petitioner courts below presumed that petitioner has committed the offences. Hence conviction does not require interference. 4. Learned magistrate sentenced petitioner to undergo rigorous imprisonment for three years and payment of fine of Rs.1,000/- under Sec.454 of the Code. For offence under Sec.380 of the Code apart from rigorous imprisonment of two years, fine of Rs.1,000/- was awarded. For the offence under Sec.461 of the Code, rigorous imprisonment for six months was awarded. Considering the age of petitioner and the fact that petitioner is undergoing imprisonment since 13.5.2007, I am satisfied that for the offence under Sec.454 of the Code rigorous imprisonment for a period of two years is sufficient in the ends of justice. Sentence of fine awarded CRL. R.P. .No.1978 of 2009 -: 4 :- under Secs.454 and 380 are set aside. Resultantly, this revision is allowed in part to the following extent: (i) Sentence of fine imposed on the petitioner for the offences under Secs.454 and 380 of the Code are set aside. (ii) Substantive sentence awarded under Sec.454 of the Code is modified as rigorous imprisonment for two years. (iii) Direction issued by learned magistrate that the substantive sentence shall run concurrently and that petitioner is entitled to set off, will remain. Leaned Magistrate shall, forthwith issue modified warrant to the Superintendent of Central Prison, where the petitioner is detained. THOMAS P.JOSEPH, JUDGE. vsv