IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1197 of 2009()
1. RAJU,S/O.KARUNAKARAN, MUDUMPIL
... Petitioner
Vs
1. STATE OF KERALA REP. BY PUBLIC
... Respondent
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1197 of 2009
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Dated this the 25th day of June, 2009.
ORDER
This revision is in challenge of judgment of learned Sessions
Judge, Thiruvananthapuram in Crl.Appeal No.565 of 2006 confirming conviction
of petitioner for offence punishable under Section 380 of the Indian Penal Code
(for short, “the Code”) but modifying the sentence. Petitioner faced trial in the
court of learned Judicial First Class Magistrate-II, Nedumangad in C.C.No.774 of
2000 for offences punishable under Sections 457 and 380 of the Code. Case is
that on 14.5.2000 at about 2 a.m. petitioner committed lurking house trespass in
the house of PWs 1 and 2, and theft of gold bangle which PW1 was wearing.
Learned magistrate found petitioner guilty for both offences. Learned Sessions
Judge acquitted petitioner of the charge under Section 457 of the Code while
confirming his conviction under Section 380 of the Code. It is contended by
learned counsel that there is no reliable evidence to prove the incident and at
any rate there is no proper identification of the offender and the gold bangle
allegedly stolen.
2. PW1 is the wife of PW2. Their evidence is that on 13.5.2000 at
about 11 p.m. they went to sleep in their bed room. Since their child was not
well, they had not put on the fan. Window was kept open. Electric bulb in the
bed room was switched on. At about 2 a.m. ( on 14.5.2000) PW1 felt as if
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something is touching her arm, she woke up and found the figure of a person
outside the window. She raised alarm. Then that person moved into the
compound. PW2 woke up, opened the door and went out. PW1 learnt that the
gold bangle she was wearing is lost. PW2 stated that hearing the alarm of PW1
he woke up and found a person standing outside the window. He immediately
opened the door and went out and then, that person was ran away from near
the window, jumped over the compound wall and escaped. . PW2 identified the
petitioner as the offender whom he had seen near the window. According to
PWs 1 and 2, petitioner was brought to their house later when also they
identified him as the offender. They identified MO1, gold bangle which PW1
was wearing and she lost in the incident.
3. PW5, Sub Inspector, Poojappura along with PW4, constable was
on patrol duty on 14.5.2007 and at about 4.15 a.m. found petitioner at
Valiyavila Junction in suspicious circumstances. He was arrested and
questioned. MOs 1 and 2, gold bangle and a cutting player were seized from
the possession of petitioner as per a mahazar, Ext.P1. PW5 registered case
against petitioner. Case was then transferred to Vattiyoorkavu police since
place of incident fell within the local limits of that station. PW7, Sub Inspector,
Vattiyoorkavu re-registered the case. ExtP5 is the scene mahazar prepared by
PW7. PW6 is an attestor in Ext.P1. Though in chief examination he stated that
he attested the mahazar and identified his signature in Ext.P1, in cross
examination he stated that he signed blank paper at the police station. PW4,
constable who accompanied PW5 spoke in the same way of PW5. PW4
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identified MO2.
4. So far as identity of the offender is concerned, it is true that PW1
initially stated that she found the figure of a person outside the window but she
stated that she could identify the offender as petitioner and in court also, she
identified him. Even if it is assumed that evidence of PW1 regarding
identification is not reliable , evidence of PW2 is that he had identified the
petitioner as the intruder. He claimed that there was street light also when the
petitioner jumped over the compound wall and escaped. Thus, the identity of
the offender is established through the evidence of PW2. At any rate seizure of
MO1 from the possession of petitioner is proved by evidence of PWs 4 and 5
which gets corroboration from Ext.P1, contemporaneous record prepared by
PW5.
6. So far as identification of MO1 is concerned, it is contended that
PW1 was not able to speak about its fashion. It is stated that ladies have an
uncanny sense of identifying their belongings. PW1 identified her gold bangle
which was lost in the incident. There is no reason to disbelieve that. That
petitioner committed theft as alleged by the prosecution is established and that
finding required no interference.
7. Learned magistrate sentenced the petitioner to undergo rigorous
imprisonment for two years and payment of Rs.2,000/- as fine for offence
punishable under Section 480 of the Code. Learned Sessions Judge modified
the substantive sentence to rigorous imprisonment for nine months. On
submission of learned counsel , report of the Probation Officer concerned with
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antecedents and character of the petitioner is called for. That report is before
me. It is seen that petitioner is involved in 35 cases, mostly relating to
property. On going through the report of the Probation Officer and considering
all relevant facts and circumstances of the case I am not inclined to think that it is
expedient in the ends of justice to invoke the provisions of Section 4 of the
Probation of Offenders Act.
8. So far as the sentence modified by the appellate court is
concerned, I am satisfied that it is reasonable and required no further
interference.
This revision fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
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