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
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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
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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
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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/-