IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.Rev.Pet.No. 1118 of 2009() ------------------------------ CRA.231/2008 of ADDL.SESSIONS COURT (ADHOC)-I, KOTTAYAM CC.290/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, CHANGANACHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- ANIL KUMAR.K.P, AGED 39 YEARS, S/O.K.K.PADMANABHAN @ APPI,RESIDING AT PARAVANPARAMBIL HOUSE,CHORIKKANPARA COLONY, PUTHENCHANTHA.PO,VAKATHANAM VILLAGE,CHANGANACHERRY TALUK,KOTTAYAM DISTRICT-666538. BY ADV. SRI.MANJU ANTONEY SRI.K.JAYAKUMAR(CHERTHALA) SRI.BABY PAUL (CHEMBAKASSERIL) RESPONDENT(S): RESPONDENT/COMPLAINANT/PROSECUTION ------------------------------------------------- THE STATE OF KERALA,REPRESENTED BY SUB INSPECTOR OF POLICE, VAKATHANAM POLICE STATION IN KOTTAYAM DISTRICT,THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1118 of 2009 -------------------------------------- Dated this the 27th day of July, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Kottayam in Crl.Appeal No.231 of 2008 confirming conviction and sentence of petitioner for offences punishable under Sections 454 and 380 of the Indian Penal Code (for short, “the Code”). Petitioner faced trial for offences punishable under Sections 457, 380 and 461 of the Code on the charge that on 27.3.1997 at about 1 a.m. he committed lurking house trespass in the house of PW1 and theft of 14 Indira Vikas Pathras, 15 Kisan Vikas Pathras, camera, binocular, calculator, gold ornaments, watch and such other items kept in the almirah. Prosecution examined PWs 1 to 16 and proved Exts.P1 to P13(a) and MOs 1 to 10. Learned magistrate found petitioner guilty under Sections 454 and 380 of the Code, convicted and sentenced him for the said offences. It is contended by learned counsel that conviction is not legal and proper as there is no sufficient evidence to proof. It is also contended by learned counsel that sentence imposed is excessive and petitioner ought to have been released under Section 4 of the Probation of Offenders Act (for short, “the Act”). 2. So far as trespass into the house of defacto complainant and theft are concerned PW1, owner of the house has given evidence. He stated that theft occurred in his house in March, 1998 at a time when he was in gulf. On his Crl.R.P.No.1118/2009 2 cousin brother informing about the incident he came to his house and learnt about the theft. He identified MOs 1 to 10 as the articles stolen from his house. PW15, Sub Inspector claimed to have arrested the petitioner on 11.6.1997 at about 3.30 p.m. He transferred the case to the police station within the limits of which the incident occurred. PW16, Sub Inspector of the transferee police station re-registered the case and investigated. Ext.P1 is the mahazar for scene of occurrence prepared by PW16. He got custody of the petitioner and questioned him. On the information allegedly given by the petitioner the material objects were discovered. 3. PW4 has given evidence that he was running a private financing institution during the relevant time and that petitioner pledged a gold ring with him during 1997. Next day police brought petitioner and seized the gold ring. It is seen that the gold ring was not shown to PW4 and got identified. PW5 another private financier claimed that petitioner pledged a gold chain with him for Rs.1,600/-. Later police came with petitioner and seized the same. To him also the gold chain was not shown and got identified. PWs 7 and 8 did not support prosecution. PW16 has given evidence regarding discovery of various material objects. Ext.P2, P6, P10 and P12 are the respective mahazars for discovery. Ext.P2(a), P3(a), P6(a), P9(a), P10(a), P11(a) and P12(a) are the relevant statements of petitioner which led to the discovery. In Ext.P6(a) the authorship of sale/concealment is admitted. It is seen that material objects Crl.R.P.No.1118/2009 3 seized as per those mahazars are identified by PW1. It is based on the above evidence that learned magistrate found the petitioner guilty and convicted him. There is also evidence of PWs 4 and 5 that some of the gold ornaments marked in evidence and discovered on the information given by petitioner were pledged with them by petitioner. Learned magistrate has considered the evidence and found the petitioner guilty under Sections 454 and 380 of the Code. Appellate court confirmed that finding. In the light of evidence on record, I do not find reason to interfere with that concurrent finding. 4. On the request of learned counsel for petitioner report of District Probation Officer, Kottayam was called for. District Probation Officer has reported that petitioner is involved in other criminal cases as well. Learned counsel for petitioner submitted that in all other cases petitioner was convicted and sentenced, he has undergone sentence, was released from the jail in the year, 2002 and thereafter no incident has been reported against petitioner. Learned counsel states that since 2002 petitioner is leading a crime-free, peaceful life looking after his family and parents. Counsel requested that the benevolent provisions of the Act may be invoked in favour of petitioner so that he does not go back to the prison and it gives an occasion for him to go back to his previous mode of life. Crl.R.P.No.1118/2009 4 5. I have considered the submission made by the learned counsel. I have heard learned Public Prosecutor also in this regard. I have gone through the report of District Probation Officer. It is true that District Probation Officer has reported that petitioner is involved in other cases also. But it is not shown that except the case on hand any other case is now pending against him. District Probation Officer has reported that behaviour, habits and surroundings of the petitioner are satisfactory though he had been involved in petty cases of theft in his early period. Now he is married, home loving, responsible and appears to have moderate temperament. It is also reported that petitioner in his spare time engages in household duties. The reports states that petitioner is admitting his involvement in cases earlier and is repenting. Taking these aspects into account and the submission of learned counsel that petitioner is leading a crime free life after 2002 and also taking into consideration the object of the Act itself, I am inclined to give the petitioner an opportunity to mend his ways rather than sending him to the prison giving him an occasion to go back to his “early life style”. Resultantly, this revision is allowed in part to the following extent: Instead of sentencing petitioner forthwith, he is released on probation for a period of two years on executing bond for Rs.20,000/- (Rupees Twenty thousand only) with two sureties (of whom one shall be a close relative of the Crl.R.P.No.1118/2009 5 petitioner) for the like sum each to the satisfaction of the trial court within a period of three weeks from this day undertaking to keep peace and be of good behaviour during the said period of two years and to receive the sentence as and when called for the purpose. Petitioner shall be under the supervision of the District Probation Officer, Kottayam during the said period of two years which shall be counted from the day of execution of the bond. Learned magistrate shall issue appropriate orders to that Officer for the purpose. THOMAS P.JOSEPH, Judge. cks