D.M. BHASKARAN Vs. STATE

JUDGEMENT

(1.) THE petitioner is the first accused in C.C. No. 1269/99 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam, as well as the appellant in Crl. Appeal No. 608/01 on the files of the IV Additional Sessions Court, Ernakulam. The petitioner and two others were prosecuted for the offence punishable under Section 3(a) of the Railway Properties (unlawful possession) Act. The prosecution case in brief is that, on 5.3.1996, at about 5. P.M., the petitioner along with other accused were found removing Metallic Coke under the possession of the Railways from the Railway Yard at the Cochin Harbour Terminus Station without any authority. The petitioner and accused numbers were forced for trial and the prosecution examined P.W. 1 to PW4 and marked Ext. P1 to P15. MO1 to MO3 were also marked. The petitioner has not adduced any evidence in defence but, when he was questioned under 313 of the Code of Criminal Procedure, he denied the challenge against him. After trail, the learned Magistrate found the petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 5,000/ -, and in default to undergo simple imprisonment for a further period of one month. Aggrieved by the conviction and sentence, though the petitioner had preferred the above criminal appeal. The appellate court also after reappreciating the evidence on record, confirmed the conviction entered by the trial court but, reduced and modified the sentence to simple imprisonment for one month and to pay a fine of Rs. 1,000/ - and in default of payment of fine to undergo simple imprisonment for a further period of 7 days. The legality, propriety and correctness of the findings whereby, the courts below found the petitioner guilty of the said offence and imposed the sentence are under challenge in this revision petition. In this revision petition, the petitioner contended that, the courts below failed to appreciate the facts and evidence in its correct perspective. The court below went wrong in placing actual reliance on the evidence of P.W. 1, who is the detecting Officer to convict the accused. The courts below failed to appreciate the defence case. It is also contended that the petitioner is aged 50 years and he doesn't have any history of involvement in a criminal case. In such circumstance, the court below ought to have invoked the benevolent provisions of the Probation of Offenders Act.

(2.) PER contra, the learned Public Prosecutor advanced arguments to justify the findings whereby, the courts below found the petitioner guilty of the charge alleged against him and sentence thereunder. According to the Public Prosecutor, the court below rightly appreciated the facts and evidence and arrived at a just and proper conclusion. It is also submitted that, the sentence imposed on the revision petitioner is proportionate with the nature and gravity of the offence.

(3.) ACCORDING to the petitioner, the sentence imposed by the appellate court is disproportionate with the nature and gravity of the offence. It is true that, the prison time can be imposed to secure the interest of deterrence but, deterrence in a case like this doesn't necessarily depend upon the length of a term that the offender has spend behind the bar. At the same time, misplaced sympathy cannot have any place in criminal adjudicatory process. On a proper balancing of both views, I am of the opinion that the sentence imposed by the appellate court is a little harsh and deserves to be modified. Consequently, the sentence imposed on the revision petitioner by the appellate court will stand set aside and the petitioner will stand sentenced as follows. The petitioner shall undergo simple imprisonment for one day till raising of the court and pay a fine of Rs. 3,000/ - and in default to undergo simple imprisonment for a further period of 15 days.