IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Crl.Rev.Pet.No. 1225 of 2005() ------------------------------ CRA.645/2003 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1144/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER: ------------------ RAJENDRA PRASAD, 45 YEARS, C.NO. 3182, CENTRAL JAIL, VIYYOOR. BY ADV. SRI.K.K.RAJEEV RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. M.S. BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/03/2008, THE COURT ON 19/03/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. No. 1225 of 2005 * * * * * * * * * * * * * * * * * * Dated: 19-03-2008 ORDER In this Revision filed under Section 397 read with Sec. 401 Cr.P.C. the revision petitioner who was the first accused in C.C. 1144 of 1998 on the file of the J.F.C.M. II Aluva for offences punishable under Sections 457, 461 and 380 I.P.C. challenges the conviction entered and the sentence passed against him for those offences. 2. The case of the prosecution can be summarised as follows: On 27-5-1998 at about 11 p.m. the two accused persons in furtherance of their common intention committed house breaking in respect of the residential house bearing door No. 35/783 of cochin corporation belonging to P.W.1 and committed theft of a tape recorder, saries, MO3 bed, MO4 series of pillows, bed sheets , MO2 Air Cooler, MO1 series of buckets, utensils etc. altogether worth Rs. 8,600. Crl.R.P. No. 1225 of 2005 -:2:- 3. The revision petitioner alone faced the trial. 4. On the side of the prosecution six witnesses were examined as P.Ws. 1 to 6 and three documents were got marked as Exts.P1 to P3 and 5 material objects were marked as Mos 1 to 5. The revision petitioner denied the incriminating circumstances in the prosecution evidence when examined under Section 313 Cr.P.C. and maintained his innocence. He did not adduce any defence evidence. 5. The learned Magistrate after trial as per judgment dated 15-3-2003 found the revision petitioner guilty of the offences and sentenced him to rigorous imprisonment for three years under Sections 380 and 457 I.P.C. and Rigorous imprisonment for two years under Section 461 I.P.C. On appeal preferred by the Revision Petitioner as Crl. Jail Appeal No. 645 of 2003 before the Sessions Court, Ernakulam, the learned Addl. Sessions Judge (Adhoc-I), Ernakulam as per judgment dated 23-12-2004 confirmed the conviction but reduced the sentence to rigorous imprisonment for two years under Sections 457 and 380 I.P.C. Hence, this Revision. 6. I heard the learned counsel appearing for the revision petitioner and the learned Public Prosecutor. Crl.R.P. No. 1225 of 2005 -:3:- 7. The learned counsel appearing for the revision petitioner made the following submissions before me in support of this revision:- There was no complaint lodged by the alleged owner of the house. P.W.4 the alleged witness to the recovery turned hostile. Ext.P3 mahazar evidencing the recovery is after the delay of two months. The said delay is fatal. The petitioner was arrested in connection with some other case and was falsely implicated in this case. P.W 5 the scene mahazar witness did not support the prosecution. P.W2 who is the husband of P.W.1 has not kept the bills with regard to Mos 1 to 5. 8. I am afraid that I cannot agree with the above submissions. P.W.1 is the owner of the house where the theft was committed. On the date of occurrence he had been at Karuvalloor after locking the house. When he returned in the evening he found the lock of the front door broke open suggesting that somebody had entered the house. But the door bolt was put from inside. Therefore, he went to the back door of the house to verify as to what happened. He saw the back door open and articles such as tape recorder , T.V. game player, gold bangles, a chain of pearls, erarstudd, Air Cooler, A cauldron Crl.R.P. No. 1225 of 2005 -:4:- etc. are missing. Mos 1 to 5 are some of the articles stolen from his house. P.W. 2 is the wife of P.W.1. She also deposed before Court in tune with the evidence of P.W.1. The accused was arrested after about two months of the occurrence. Ext.P2 (a) is his confession statement on the basis of which Mos 1 to 5 were seized by the police under Ext.P2 recovery mahazar. The recovery was made from the house where he was staying and Mos 1 to 5 are the properties so recovered. Eventhough P.W.4, the independent witness to the recovery turned hostile to the prosecution, the credible testimony of P.W.6 who effected the recovery has been concurrently accepted by the courts below. The delay in the recovery is on account of the delay in the apprehension of the accused. 9. The failure on the part of P.Ws 1 and 2 to keep the bills pertaining to Mos 1 to 5 is not a ground to disbelieve them. Similarly, the failure on the part of P.W.2 to lodge a complaint is also not a ground to reject her testimony as false. The trial court which had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe the prosecution witnesses. The lower appellate court has also fully concurred with the findings of the trial court. This Court sitting Crl.R.P. No. 1225 of 2005 -:5:- in revision will be loathe to interfere with the concurrent findings on facts recorded by the courts below. The conviction entered against the revision petitioner is accordingly confirmed. 9. What now survives for consideration is the question as to whether the sentence imposed on the revision petitioner is adequate or not. Having regard to the fact that the revision petitioner is also an accused in four other cases namely Crl. R.P. 1218, 1223, 1224, 1225 of 2005 of this Court, I am not inclined to reduce the sentence merely because the petitioner is shown to have some cardiac problems and is receiving treatment from the Medical College Hospital, Thrissur. In the result, this Revision is dismissed confirming the conviction entered and the sentence passed against the petitioner. Sd/-V. RAMKUMAR, JUDGE ani/ /true copy/