High Court Kerala High Court

Sugathan Babu @ Bau vs State Of Kerala on 14 November, 2008

Kerala High Court
Sugathan Babu @ Bau vs State Of Kerala on 14 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 3762 of 2007()


1. SUGATHAN BABU @ BAU
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

                For Petitioner  :SRI.J.JAYAKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :14/11/2008

 O R D E R
                 M.SASIDHARAN NAMBIAR, J.
                   ...........................................
                 CRL.R.P.NO. 3762 OF 2007
                   ............................................
     DATED THIS THE          14th       DAY OF NOVEMBER, 2008

                                  ORDER

Revision petitioner was convicted and sentenced for the

offence under Section 457 and 379 of IPC by Additional Chief

Judicial Magistrate, Thiruvananthapuram in C.C.380 of 1993.

Conviction was confirmed by Additional Sessions Judge,

Thiruvananthapuram in Crl.A.516 of 1998. Revision petition is

filed challenging the conviction and sentence. Prosecution case

was that PW1 and his wife PW2 were sleeping in their house on

10.1.1991 along with their children. On that night, revision

petitioner snatched the chain worn by their daughter aged 1 =

years and thereby committed the offence under Section 457 and

379 IPC. PW8, Sub Inspector of Pettah police station arrested

petitioner from Pulayannarkotta Hospital compound at about 10

pm on 12.11.1991 in Crime 64 of 1991. When PW8 questioned

revision petitioner, on the information furnished by revision

petitioner and as led by revision petitioner, PW8 reached the

jewellery shop of PW3 at Paravoor. PW3 produced MO1 gold

chain sold by revision petitioner and purchased by PW3. After

preparing Ext.P1 mahazar, in the presence of PW4, MO1 was

CRRP 3762/2007 2

recovered. On reaching Pettah police station, PW8 prepared

Ext.P3 F.I.R and registered Crime 118 of 1991. As the theft was

committed within the jurisdiction of Medical College police

station, F.I.R was transferred to Medical College police station

PW5 Head Constable prepared Ext.P4 F.I.R and registered

Crime 383 of 1991. After completing the investigation, charge

was laid before learned Chief Judicial Magistrate. Petitioner

pleaded not guilty. Prosecution examined Pws 1 to 8 and marked

Exts.P1 to P4 and identified MO1. Petitioner did not adduce any

evidence.

2. On the evidence, learned Magistrate found the

petitioner guilty and convicted and sentenced him to rigorous

imprisonment for two years each for the offences under Section

379 and 457 IPC. A fine of Rs.1000/- in addition to the sentence

of imprisonment for the offence under Section 457 IPC was also

awarded. Petitioner challenged the conviction before Sessions

Court, Thiruvananthapuram in Crl.A.516 of 1998. Learned

Additional Sessions Judge, on reappreciation of evidence,

confirmed the conviction but modified the sentence to rigorous

imprisonment for one year each. Revision petition is filed

challenging the conviction and sentence.

CRRP 3762/2007 3

3. Case of revision petitioner is that courts below did not

properly appreciate the evidence and the identification of MO1

as a stolen article should not have been accepted. It was

contended that due to the inconsistencies in the evidence of Pws

3 and 4, with regard to the nature of the chain, courts below

should have found that it is not the stolen article and in any case,

based on MO1, petitioner cannot be convicted. It is therefore

contended that conviction and sentence is not sustainable.

4. Learned Public Prosecutor argued that learned

Magistrate and learned Sessions Judge appreciated the evidence

in the proper perspective. It was pointed out that MO1 gold

chain is proved to be the stolen article by the evidence of Pws 1

and 2 and there is no reason to disbelieve their evidence. It was

also argued that evidence of PW3 establishes that MO1 was sold

to him by the revision petitioner and evidence of PW8 establishes

that MO1 was recovered only on the information furnished by

the revision petitioner. It is therefore argued that conviction and

sentence is perfectly legal.

5. Learned Magistrate and learned Sessions Judge

appreciated the evidence of Pws 1 and 2 and found their

evidence credible and reliable. Evidence of PW1 corroborated by

CRRP 3762/2007 4

PW2 establish that on the night of 10.1.1991, PW2, the mother

along with the minor daughter were sleeping and during night

somebody had snatched the gold chain from the neck of the

minor daughter. Pws 1 and 2 identified MO1 as the gold chain

snatched from the neck of the minor daughter on that night.

Though Pws 1 and 2 were cross examined, nothing was brought

out to disbelieve their evidence. The fact that evidence of PW1

that he had lodged a complaint on the next day was not

supported by any material, is insufficient to disbelieve the

evidence of theft or identification of MO1 as the stolen article.

Courts below rightly accepted their evidence with regard to theft

as well as identity of MO1 as a stolen article.

6. Evidence of PW8 establish that petitioner was arrested

on the night of 11.11.1991 as he was found within the compound

of Pulayannarkotta Hospital. Evidence of PW8 also establishes

that when petitioner was questioned, on the information

furnished by petitioner, MO1 was recovered from PW3. That

evidence of PW8 is fully supported by the evidence of PW3 which

is further corroborated by Ext.P1 recovery mahazar, a

contemporaneous record prepared at the time of recovery.

Evidence of PW3 establishes that MO1 gold chain was sold to

CRRP 3762/2007 5

him by the revision petitioner in January 1991 and he purchased

it from revision petitioner. Though PW3 was cross examined,

with regard to the availability of the record showing purchase,

PW3 deposed that he is not maintaining any record. It cannot be

believed that PW3 would produce a gold chain weighing about 4

gms and thereby suffer a loss just to oblige the police, as

canvassed by revision petitioner. PW4, the employee of PW3 also

corroborated the evidence. Evidence of Pws 3 and 4 together

establish that MO1 which is proved to be the stolen article, was

in the possession of revision petitioner soon after the theft and

was sold to PW3 and was later recovered by PW8 on the

information furnished by revision petitioner. As possession of

MO1 with PW3 was known exclusively to revision petitioner, the

evidence of PW8 as to how MO1 was recovered, definitely

connects revision petitioner with the theft. Therefore conviction

of petitioner for the offence under Section 379 IPC is perfectly

legal.

7. But the question is whether there is evidence to prove

that revision petitioner committed the offence under Section 457

IPC as found by the courts below. Section 457 IPC provides

punishment for lurking house trespass. Under the section,

CRRP 3762/2007 6

whoever commits lurking house trespass by night, or house

breaking by night, in order to commit an offence punishable with

imprisonment, shall be punishable for the sentence provided

therein. Section 454 make lurking house trespass or house

breaking punishable. Under Section 451, whoever commits

house trespass in order to commit an offence is punishable as

provided therein. Lurking house trespass is defined under

Section 443 IPC as whoever commits house trespass having

taken precautions to conceal such house trespass from some

person, who has a right to exclude or eject the trespasser from

the building tent or vessel, which is the subject of house

trespass. Under Section 442 IPC, house trespass is defined as

whoever commits criminal trespass by entering into or

remaining in any building, tent or vessel used as a human

dwelling or any building used as a place of worship, or as a place

for the custody of property. House breaking is defined under

Section 445. A person is said to commit house breaking who

commits house trespass, if he effects his entrance into the house

or any part of it in any of the six ways provided therein. Section

446 provides house breaking by night. Therefore in order to

convict petitioner for an offence under Section 457, there should

CRRP 3762/2007 7

be conclusive evidence to prove that petitioner committed a

house trespass by night or house breaking by night. Except the

fact that Pws 1 and 2 were inside the house and their minor

daughter was sleeping along with PW2, there is no evidence to

prove that revision petitioner had entered into the house or

remained in the building so as to constitute a house trespass as

provided under Section 442 IPC. Evidence of Pws 1 and 2 only

show that the thief had committed theft by snatching the chain

from outside through the window. Therefore on the failure of the

prosecution to establish that revision petitioner either entered

into the house or remained in the house or committed any house

breaking as provided under Section 445, conviction for the

offence under Section 457 IPC is not sustainable and can only be

set aside.

8. Then the question is whether sentence warrants

interference. An offence under Section 379 IPC is punishable

with imprisonment which may extend to three years or fine or

both. Learned Sessions Judge modified the sentence to rigorous

imprisonment for one year. As petitioner is not a first offender

and was also convicted in another case, he is not entitled to get

the benefit of Probation of Offender’s Act or any interference in

CRRP 3762/2007 8

the sentence.

9. Revision petition is allowed in part. Conviction of

petitioner for the offence under Section 457 IPC is set aside.

Petitioner is found not guilty of the said offence and is acquitted.

Conviction of petitioner and the sentence for the offence under

Section 379 IPC is confirmed.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-