IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1927 of 2009()
1. MANI, S/O. KUNCHAN, SAROJA BHAVAN,
... Petitioner
Vs
1. STATE OF KERALA REP. BY ITS PUBLIC
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.D.KISHORE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No. 1927 of 2009
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Dated this 25th day of August 2009
ORDER
Accused No.2 in C.C.No.127 of 1998 of the court of learned
Judicial Magistrate of First Class-5, Thiruvananthapuram is before me in
this revision challenging his conviction and sentence for offence
punishable under section 457, 380 and 461 r/w section 34 of the Indian
Penal Code (for short, “the Code”). The records of this case is not
before me. Learned counsel for petitioner has provided copy of the
depositions of the witnesses and relevant records and took me through
those documents.
2. Case of the prosecution is that between 8.30p.m of
15-04-1997 and 7 p.m of 23-04-1997 petitioner and accused No.2 in
furtherance of their common intention committed lurking house
trespass at night in the house of PW1 by breaking open the rear door
and removing the window bars of the house and committed theft of
Mos.1 to 19 and 22 to 36 series. PW1 has given evidence regarding
the alleged theft. She stated that the inmates of the house were not
there on 8.30p.m on 15-04-1997 till 7.00 p.m on 23-04-1997. When
they returned to the house they found the house burgled. They learnt
that the articles including ornaments kept in the house was stolen.
Information was given to the police. PW1 stated that she found the
door remaining open and the window bars removed. PW2 claimed to
Crl.R.P.No.1927 of 2009 2
have produced MO.21, a shirt collected from the scene of occurrence.
PW24, investigating officer received it. PW8 is said to have stitched
that shirt. PW23 registered the case. Ext.P2 is the mahazar for scene
of occurrence. Petitioner was arrested on 07-06-1997. When
questioned, he is said to have given information that the gold ring is
given to PW17 who in turn pledged the same with PW16. On the
strength of that information and as led by petitioner, investigating
officer took petitioner to PW.17 and then to PW.16. PW16 produced
MO1 which was seized as per Ext.P7. Ext.P7(a) is the information
allegedly given by petitioner which led to the discovery of MO1. Yet
another item of evidence used against the petitioner is Ext.P14 and
P14(a). It is stated by PW23, investigating officer that on the
information given by petitioner and as led by the latter he reached the
house of the wife of petitioner wherefrom petitioner produced some of
the stolen articles (identified by PW1). Ext.P14 is the mahazar for
scene of seizure. Ext.P14(a) is the relevant information given by
petitioner and which led to the discovery. Thus, the evidence available
against the petitioner is the oral evidence of PW1, 16, 17 and 23 and
Ext.P7, P7(a), P14 and P14(a).
3. It is contended by learned counsel that even the
identification of MO1 is not proper and in the previous statement of
PW1 it was stated that MO1 is having weight of one sovereign while
Crl.R.P.No.1927 of 2009 3
later it was stated to be two grams. It is also argued by learned
counsel that PW17 has not identified MO1. That there is some
discrepancy as to the weight of MO1 by itself is not sufficient to
disbelieve the evidence of PW1. PW1 was handing MO1 and hence is
capable of identifying the same. I find no reason to disbelieve the
identification of MO1 made by PW1. PW17 has given evidence that
petitioner had given him a gold ring to raise money by pledging the
same and accordingly he pledged the same with PW16 for Rs.600/-.
Later the police seized the gold ring from PW16. PW17 is an attester in
Ext.P7. When MO1 was shown to PW17 he was not sure whether that
was the gold ring petitioner had entrusted to him. PW16 has admitted
that PW17 has pledged a gold ring with him and later the police came
to him and seized the same. Ext.P6 is photocopy of register which he
maintained for the purpose. Petitioner also was with the police. PW23
has given evidence that it is MO1 which he had discovered on the
information given by petitioner and seized from PW16. Thus, it is in
evidence that MO1 one of the stolen articles was in the possession of
petitioner and he pledged it with PW16 through PW17. When
possession of stolen articles is proved it is well within the power of the
court to draw inference either that petitioner committed theft or that
he is a receiver of stolen articles. On the facts and circumstances of
this case learned magistrate has drawn the presumption that petitioner
Crl.R.P.No.1927 of 2009 4
has committed house breaking and theft. I find no reason to differ.
4. It is seen that learned magistrate convicted and sentenced
petitioner for offence punishable under section 457 of the Penal Code.
For offence punishable under section 457, it must be shown that
lurking house trespass was on the night. In this case there is no such
evidence. On the other hand going by the evidence of PW1 the
incident could have happened at any time, day or night between
15-04-1997 and 23-04-1997. Hence conviction of petitioner has to be
altered from 457 to 454 of the Penal Code. In other respects there is
no reason to interfere with the conviction of petitioner.
5. Learned counsel submits that petitioner is running in his
70’s and that he is a man unable to do any work. Learned counsel
requested that leniency may be shown to him. In the light of
submission made by learned counsel a report of District Probation
Officer, Thiruvananthapuram was called for concerning the character
and antecedents of petitioner. That officer has reported that petitioner
has no bad habits or any previous conviction and that he is leading a
family life. He has fixed place of residence. His relatives are
concerned about him. In these circumstances I am inclined to think
that instead of sending petitioner at this old age to the prison it is
sufficient that he is released on good conduct for a period of two years.
Crl.R.P.No.1927 of 2009 5
Resultantly this revision petition is allowed to the following
extent:
1. While retaining conviction of petitioner for offence punishable
under section 380 and 461 r/w34 of the IPC his conviction under
section 457 is altered to 454 IPC.
2. Instead of sending the petitioner forthwith to the jail he is released
on probation of good conduct for a period of two years. Petitioner
shall execute a bond in the trial court for Rs.25,000/- (Rupees
Twenty Five Thousand Only) with two sureties for the like sum
each undertaking to keep peace and be of good behaviour for a
period of two years from the date of execution of the bond and to
appear and receive sentence as and when called for during the
said period of two years. Petitioner shall be under the supervision
of District Probation Officer, Thiruvananthapuram during the said
period of two years.
3. Petitioner shall execute bond in the trial court within two weeks
from this day. Appropriate direction for supervision of petitioner
shall be issued by the learned magistrate on execution of such
bond to the District Probation Officer.
THOMAS P JOSEPH, JUDGE
Sbna/