IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 Crl.Rev.Pet.No. 2133 of 2009() ------------------------------ CRA.414/2006 of ADDL.DISTRICT & SESSIONS COURT (ADHOC) II, PATHANAMTHITTA CC.1074/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER: ---------------------------- SAYAD, S/O. MEERA SAHIB, ANNAI PARAYIL THANNIMOOTTIL HOUSE, KULASEKHARAPATHY, KUMBAZHA MURI, PATHANAMTHITTA VILLAGE, PATHANAMTHITTA DIST BY ADV. SRI.AJITH MURALI RESPONDENT: ------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.C.S.HRITHIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2133 of 2009 --------------------------------------- Dated this 18th day of August 2009 ORDER Heard counsel for petitioner and Public Prosecutor. 2. Petitioner/accused No.2 faced trial in the court of learned Judicial Magistrate of First Class, Pathanmthitta in C.C.No.1074 of 2006 for offence punishable under sections 379 and 411 r/w 34 of the Penal Code. Case is that petitioner and two others committed theft of MOs.1 to 19, articles belonging to the Kerala State Electricity Board from its compound on 18-04-2005 at about 6 a.m and that the said articles were sold to accused No.3. Petitioner and accused No.3 faced trial. Accused No.3 was acquitted. Petitioner was found guilty, convicted and sentenced to undergo simple imprisonment for one year under section 379 r/w section 34 of the Penal Code. Case against accused No.1 was split up. Learned Additional Sessions Judge confirmed conviction and sentence of petitioner. Hence this revision. It is contended that there is no reliable evidence to prove involvement of petitioner in the alleged incident. 3. PW1, engineer and PW3, lineman attached to the State Electricity Board have given evidence regarding the theft of articles belonging to the KSEB on the relevant time. They identified MOs.1 to 4 (which alone are relevant in this revision). PW6 has given evidence Crl.R.P.No.2133 of 2005 2 that he saw petitioner and others transporting MOs.1 to 4 in an autorikshaw. He informed PW1 about that. PW1 and others reached there. Himself, PW1 and others identified MOs.1 to 4. PW4 has given evidence that petitioner was travelling in the autorikshaw. PW2 is an attestor in Ext.P2. He has also supported the case of prosecution regarding seizure of MOs.1 to 4 from the autorikshaw. Thus, there is evidence to show that MOs.1 to 4 were in the possession of petitioner. It is contended by learned counsel that petitioner was merely travelling in the autorikshaw. But in the nature of MOs.1 to 4, that contention cannot be accepted. Once possession of stolen articles is proved, it is for petitioner to show that he had no conscious possession of the same. Petitioner had no satisfactory explanation for his travelling in the autorikshaw with MOs.1 to 4. On going through the judgments under challenge and hearing counsel I find no reason to interfere with conviction of petitioner for offence punishable under section 379 r/w 34 of the Penal Code. 4. Learned counsel requested that leniency may be shown to the petitioner in the matter of sentence. According to learned counsel, petitioner is not involved in other case and is the sole breadwinner of the family. On the request of the learned counsel report of the District Probation Officer, Pathanamthitta was called for. The report states that petitioner appears to be a first offender and that he has a wife and two Crl.R.P.No.2133 of 2005 3 children to be looked after he being the only bread winner of the family and all other members being dependent on him. Petitioner belongs to a labour class family with poor social and financial background. The family has no house or land of their own. They are staying in rented houses. Certain negative aspects are also stated by the District Probation Officer but, those aspects are not such as to dissuade me from invoking the provisions of the Probation of Offenders Act (for short, “the Act”). Having regard to the nature of act and character and antecedents of petitioner it appears to me that it is expedient in the ends of justice to invoke section 4 of the Act rather than sending petitioner behind the bars. Resultantly this revision is allowed in part to the extent that instead of sentencing petitioner forthwith, he is released on probation of good conduct for a period of two years from the date he executes a bond in the trial court. Petitioner is directed to execute a bond for Rs.15000/- (Rupees Fifteen Thousand Only) with two sureties for the like sum each to the satisfaction of the trial court within two weeks from this day undertaking to keep peace and be of good behaviour for a period of two years from the date on which the bond is executed and to appear and receive the sentence as and when called for during the said period of two years. It is directed that petitioner shall be under the supervision of District Probation Officer, Pathanamthitta during the Crl.R.P.No.2133 of 2005 4 said period of two years. Necessary direction in that regard shall be issued by the learned magistrate on execution of the bond. THOMAS P JOSEPH, JUDGE Sbna/