Hariprasad vs State Of Kerala
2025 Latest Caselaw 4835 Ker

Kerala High Court

Hariprasad vs State Of Kerala on 6 March, 2025

CRL.REV.PET NO. 669 OF 2018

                                  1                025:KER:19303
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

             THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

   THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946

                       CRL.REV.PET NO. 669 OF 2018

       AGAINST      THE   JUDGMENT       IN   Crl.A   NO.249   OF     2016   OF
ADDITIONAL DISTRICT & SESSIONS COURT - V, THIRUVANANTHAPURAM
ARISING OUT OF THE JUDGMENT IN CC NO.728 OF 2011 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,THIRUVANANTHAPURAM ARISING OUT

REVISION PETITIONER/ACCUSED:

             HARIPRASAD
             S/O.MOHANAN, KALLUPURATH HOUSE, NEAR
             S.M.H.S.CHERAYI, PALLIPURAM VILLAGE, ERNAKULAM.


             BY ADV SRI.G.SUDHEER


RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA.

             SRI.SANAL P.RAJ-PUBLIC PROSECUTOR


      THIS    CRIMINAL        REVISION   PETITION     HAVING   BEEN    FINALLY
HEARD ON 27.2.2025, THE COURT ON 06.03.2025 DELIVERED THE
FOLLOWING:
 CRL.REV.PET NO. 669 OF 2018

                                    2                 025:KER:19303


                        M.B.SNEHALATHA, J.
                -------------------------------------------
                       Crl.R.P.No.669 of 2018
                 -------------------------------------------
                   Dated this the 6th March 2025


                              ORDER

This revision petition is directed against the judgment in

Crl.A No.249/2016 of Sessions Court V, Thiruvananthapuram which

confirmed the order of conviction and sentence against the revision

petitioner/accused in C.C.No.728/2011 on the file of Judicial First

Class Magistrate Court II, Thiruvananthapuram for the offence

punishable under Section 381 of Indian Penal Code (hereinafter

referred to as IPC).

2. In short the prosecution case is that on 5.7.2011 at

about 12.30 pm, the revision petitioner/accused who was the

poojari of Irumkulangara Bhagavathi Temple in Kamaleswaram

committed theft of two silver vessels, one gold thali and one golden

bindi of the deity of the said temple worth ₹8,000/- kept in the

temple and thereby committed the offence punishable under

Section 381 IPC.

3. After trial, the learned Magistrate found the revision

petitioner/accused guilty of the offence punishable under Section CRL.REV.PET NO. 669 OF 2018

3 025:KER:19303 381 IPC and he was convicted and sentenced to undergo simple

imprisonment for three months and to pay a fine of ₹3,000/- and in

default of payment of fine, to undergo simple imprisonment for a

period of two months.

4. The conviction and sentence was confirmed by the

Sessions Court in Crl.A No.249/2016.

5. It is contended by the revision petitioner/accused that

the learned Magistrate and the learned Sessions Judge has not

analysed the evidence in its correct perspective; that the

prosecution has not succeeded in establishing the case against the

accused beyond any reasonable doubt.

6. Per contra, the learned Public Prosecutor submitted that

prosecution has succeeded in establishing the case against the

accused and there are absolutely no grounds to interfere with the

conviction and sentence against the accused.

7. It is a well-settled position of law that the revisional

power of the court under Sections 397 to 401 of the Cr.P.C. is not

to be equated with that of an appeal. The court may not interfere

with the decision in exercise of the revisional jurisdiction unless the

finding of the court, whose decision is sought to be revised, is

shown to be perverse or untenable in law or is grossly erroneous or CRL.REV.PET NO. 669 OF 2018

4 025:KER:19303 glaringly unreasonable or where the decision is based on no

material or where the material facts are wholly ignored or where

the judicial discretion is exercised arbitrarily or capriciously.

8. PW1 who was the Secretary of the temple trust has

testified in tune with Ext.P1 first information statement laid by him

before the police regarding the incident. According to PW1, on

5.7.2011 accused who was the poojari of that temple took leave

and left the temple. Immediately thereafter, PW1 could notice the

missing of the silver stand, silver plate, golden bindi and golden

thali from the temple and accordingly, he preferred Ext.P1 FI

statement to the police. According to PW1, MO1 to MO4 are the

articles lost from the temple. PW2 who was the executive

committee member of the temple trust also testified that he along

with PW1 opened the room in the temple wherein the articles had

been kept and on verification, they could notice the missing of MO1 to

MO4 articles. PW5, the then Sub Inspector of Poonthura Police

Station has testified that pursuant to Ext.P1 first information

statement of PW1 he registered Ext.P3 FIR; that on the same day he

arrested the accused from Kamaleswaram bus stop and seized MO1 to

MO4 stolen articles from the accused as per Ext.P2 seizure

mahazar. Ext.P2 seizure mahazar is a contemporaneous document

prepared by PW5 at the time of seizure of MO1 to MO4 articles from CRL.REV.PET NO. 669 OF 2018

5 025:KER:19303 the possession of the accused. Ext.P5 is the prop erty list. The

evidence on record would show that MO1 to MO4 stolen articles

were recovered from the posse ssion of the accused soon after the

theft. Therefore, the presumption under illustration (a) of Section

114 of the Indian Evidence Act can be drawn, as rightly held by the

learned Magistrate and the learned Sessions Judge. Though the

accused would contend that it was a false case foisted against him

by PW1 and PW2, accused could not establish the said defence.

There is nothing on record to show that PW1 and PW2 have had

any enmity or grudge against the accused who was the poojari of

that temple to implicate in a false theft case. On the other hand,

the prosecution has succeeded in establishing the case against the

accused beyond any reasonable doubt and therefore I find no

reason to interfere with the verdict of guilt against the accused for

the offence punishable under Section 381 IPC rendered by the

learned Magistrate which was confirmed by the learned Sessions

Judge in appeal.

9. The next aspect for consideration is whether the

sentence imposed against the accused needs any interference by

this Court.

10. The sentence imposed by the trial court as confirmed CRL.REV.PET NO. 669 OF 2018

6 025:KER:19303 in appeal is simple imprisonment for three months and to pay a fine

of ₹3,000/-. In default of payment of fine to undergo simple

imprisonment for a period of two months.

11. The learned counsel for the revision petitioner pleaded

leniency in the matter of sentence and submitted that the accused

is a first offender who has no criminal antecedents and therefore he

may be given the benefit of the benevolent provisions of Probation

of Offenders Act, 1958.

12. Probation of Offenders Act, 1958 is a reformative

measure designed to rehabilitate rather than punish the first time

offender who have the potential to reform.

13. Section 3 of the Probation of Offender Act reads thus:

"3. Power of Court to release certain offenders after admonition When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

14. During the pendency of this revision petition, this

Court called for a report from the District Probation Officer,

Ernakulam. The report reveals that the accused is a first-time CRL.REV.PET NO. 669 OF 2018

7 025:KER:19303 offender and he has no other criminal antecedents. It is further

reported that he is a well-known artist and has a good family

background.

15. Regard being had to the fact that accused is a first time

offender and the circumstances of the case including the nature of

offence and the character of the offender, this Court finds it

expedient to release the accused on probation of good conduct

under Section 3 of the Probation of Offenders Act, 1958.

16. Accordingly, while maintaining the conviction of the

offence under Section 381 IPC, it is directed that the accused shall

be released on probation of good conduct under Section 3 of the

Probation of Offenders Act, 1958.

17. In the result, the Crl.R.P is allowed in part modifying the

sentence alone as follows:

i) The conviction of the accused for the offence punishable under Section 381 IPC stands confirmed.

ii) Accused shall be released under Section 3 of the Probation of Offenders Act, 1958 after due admonition for which he shall appear before the trial court viz. the Judicial First Class Magistrate Court II, Thiruvananthapuram on or before 22.3.2025.

iii) On appearance of the accused as directed, the learned Magistrate before whom the revision CRL.REV.PET NO. 669 OF 2018

8 025:KER:19303 petitioner/accused is directed to appear shall release him after due admonition as provided under Section 3 of the Probation of Offenders Act, 1958.

Sd/-

M.B.SNEHALATHA JUDGE ab