Soman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935** ## **Crl.Rev.Pet.No. 510 of 2003 ( )** **-------------------------------CRL.A.21/2000 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), THODUPUZHA. CC. NO.136/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADIMALI. ................** ## **PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------** **SOMAN, S/O.MONY, TRIBAL SETTLEMENT, ANACHAL KARA, KUNCHITHANNY VILLAGE, IDUKKI DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN.** ## **RESPONDENT/RESPONDENT/COMPLAINANT::** **--------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VELLATHOOVAL POLICE STATION, THROUGH THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.** **BY PUBLIC PROSECUTOR SMT.M. MADHUBEN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.510 of 2003 ---------------------------------------------Dated this the 10[th] day of April, 2013 ## **ORDER** The revision petitioner was convicted by the trial court U/Ss.457 and 380 of IPC and sentenced to undergo simple imprisonment for different periods and directed to pay a fine of Rs.100/- each with a default sentence of simple imprisonment for 15 days under the above Sections. Set off was allowed U/S.428 Cr.P.C. for the period of remand. An appeal preferred was dismissed by the Additional District and Sessions Court (Ad-Hoc-I) confirming the conviction passed by the trial court. Challenging the said judgments, the accused preferred this petition. 2. The prosecution case was that on 22.12.1994 at 9.30 p.m., the accused committed house breaking by night and entered into House No.XI/14B in Vellathooval Panchayat of PW3 and stolen a tape recorder. On 14.10.1995 he was arrested and during interrogation, he admitted the offence in this case. Hence, this case was registered under Sections 457 and 380 of IPC. Crl. R.P.No.510/03 2 During investigation MO1 and MO2 were recovered and after completing the investigation Vellathooval Police laid charge in the trial court. To prove the offence, the prosecution examined PWs 1 to 8 and admitted Exts.P1 to P6 and MO1 and MO2 in evidence. After analyzing the oral and documentary evidence, the trial court convicted the accused under Sections 457 and 380 of IPC. Aggrieved by that, he preferred appeal No.21/2000 before the Sessions Court, Adhoc -I, Thodupuzha where the conviction was confirmed. Aggrieved by that, he preferred this revision. 3. The learned counsel for the revision petitioner contended that the trial court and the appellate court failed to appreciate the nature of offence committed by the accused. Instead of invoking benevolent provisions of Probation of Offenders Act, the lower courts sentenced the revision petitioner for a period of three months and directed to pay a fine of Rs.100/- for the offence under Section 457 IPC and simple imprisonment for three months and a fine of Rs.100/for the offence under Section 380 IPC with a default sentence of simple imprisonment for 15 days each under Section and 457 and 380 IPC. No criminal antecedents were reported by Crl. R.P.No.510/03 3 the Police even after this offence. This is a fit case for invoking benevolent provisions of the Probation of Offenders Act. 4. The learned Public Prosecutor opposed the argument of the learned counsel for the revision petitioner. The learned Public Prosecutor contended that a lenient view was taken by the trial court. Therefore, the provisions of Probation of Offenders Act are not applicable in this case. 5. Now the question that arises for consideration is whether there is any illegality or irregularity in the findings of the court below? If so, the conviction and sentence passed by the trial court under Sections 457 and 380 IPC is sustainable in law? To prove the case, prosecution examined de facto complainant as PW3. His evidence shows that MO1 and MO2 were stolen from his house two years back and after 9 months, those stolen articles were recovered by the Sub Inspector of Police and shown to him. In his evidence, in cross examination, he admitted that the lock was broke opened and entered into his house. On the next day itself, he informed the matter to the Police and they recorded the statement, but, they did not take further action. PWs 1 and 2 are the Crl. R.P.No.510/03 4 witnesses, who attested Exts.P1 and P2 mahazars. But, they are declared hostile by the prosecution. PW2 deposed that MO2 was not purchased from the revision petitioner. PW4 attested Ext.P3 mahazar and he supported the prosecution case. 6. The investigation was conducted by PW5, who was the Sub Inspector of Vellathooval Police Station. According to him, on 13.10.1995, while he was conducting patrol duty with PW6, PW7 and PW8, the accused was found standing in a waiting shed with a tape recorder. During interrogation, revision petitioner did not gave proper answer to the questions and at 3.45 a.m. revision petitioner was arrested and the articles found with him were taken into custody after preparing Ext.P4 seizure mahazar. Reaching at the Police Station, he registered Ext.P5 FIR. On the basis of the information given by the revision petitioner, he recovered the stolen articles. Ext.P1(a) is the disclosure portion for recovering MO1 and Ext.P4(a) is the disclosure portion for recovering MO2. Even though PW5 was cross examined by the defence counsel, nothing has been brought out to discredit the evidence of PW5. 7. According to Section 27 of the Indian Evidence Act, Crl. R.P.No.510/03 5 when any fact is deposed and anything is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered is admissible in evidence. Here, MO1 and MO2 were discovered on the basis of the information given by Exts.P1 (a) and P4 (a) disclosure portion, MOs1, 2 and 3 were discovered on the basis of the information given by Exts.P1 (a) and P4 (a) disclosure portion. Therefore, the recovery of Mos 1 and 2 were properly proved by the prosecution in this case. Pws 6, 7 and 8 are the other Police Officers, who supported the recovery of MO1 and MO2. It is clear that no independent witnesses were present at the time of seizure of MO1. Nothing has been brought out to disbelieve the evidence of Police Officers in the absence of any prejudice to the accused. PW1 and PW2, who were presented at the time of preparing the mahazar also turned hostile, but they admitted the signature in the mahazar. The revision petitioner has no case that the recovery of MO1 and MO2 has caused any prejudice to him. In the light of the above discussion, I am of the view that the finding recorded by the 6 Crl. R.P.No.510/03 trial court and the appellate court are only to be confirmed. 8. The learned counsel for the revision petitioner contended that interference is necessary with regard to the question of sentence. According to Section 4 of the Probation of Offenders Act, when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence an the character of the offender, it is expedient to release him on probation of good conduct. Therefore, instead of sentencing him at once to any punishment direct that he is released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period. Therefore, invoking that jurisdiction, I directed the Probation Officer to submit a report. 9. Today, the District Probation Officer Gr-I, Idukki submitted a report, in which, it is stated that the revision petitioner is residing in a tribal settlement colony and he belongs to Scheduled Caste. He lost his father at a tender age and suffered from lack of parental control. He stolen the tape 7 Crl. R.P.No.510/03 recorder not for financial gain, but for hearing music, since he was fond of music and he was not in a position to buy the same. Previous conviction and criminal antecedents were not found in the enquiry. 10. In the circumstances, I invoke the provision of Section 4 of the Probation of Offenders Act. The apex court in _**Sitaram Paswan**_ v. _**State of Bihar**_ [AIR 2005 SC 3534] held that the power of invoking Section 4 can be exercised by the Court even at the appellate or revisional stage. Accepting the above legal principle, I am of opinion that the incident occurred not by deliberation. Therefore, the report of the Probation Officer is acceptable. According to section 4 of the Act, when a person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which he is found guilty is of the opinion that considering the circumstances, including the nature of offence and the character of the revision petitioner, he is to be released on probation of good conduct. 11. In the result, the conviction passed against the revision petitioner is confirmed. But instead of sentencing the revision petitioner at once to any punishment, he is released Crl. R.P.No.510/03 8 under section 4 of the Probation of Offenders Act, 1958 as follows :- - 1) The revision petitioner shall execute a bond for - Rs.5,000/- with two solvent sureties for a period of one year to the satisfaction of the trial court. - 2) He shall be under the supervision of the District Probation Officer during that period. - 3) The District Probation Officer shall send periodical report to the trial court quarterly. - 4) The revision petitioner is directed to keep, peace and good behaviour during that period. - 5) He is directed to appear and serve sentence as and when called upon during this period. The revision petition is disposed of accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.510/03 9 acd Crl. R.P.No.510/03 10