In Re: Kumaran alias Narayanasami

K.N. Mudaliar, J.—The appellant, Kumaran alias Narayana swami, seeks to question the correctness or the propriety of his conviction

under S. 379, I. P.C. Briefly, the facts are: P.W. 1 is the owner of the two cows which were the subject matter of the theft committed by this

appellant. His evidence is that he was residing in his land and his cows were tethered next to his house. About four months back at about 8 p.m.

tethered his cows in the shed and went to sleep. On the next morning he fond the cows missing. The value of the cows, according P.W. 1 is Rs.

He says that he purchased them in Budhan Sandal. He could not traos the cows in the surrounding place. About 20 days later, he learnt that

the cows were at the Namakkal Police station. He went there and he was taken to the Munsif''s house where he identified his cows as his own. He

took delivery of the cows. The only suggestion made to P.W. 1 is that the cows do not belong to him. Most of his testimony goes unchallenged.

His evidence is corroborated by P.W. 2. The karnam, who was going on 3rd July 1969, (Thursday) to the mill of one Kathamuthu. He found the

appellant bargaining to sell the two cows to one Veluswami, P.W. 3. P.W. 3 suspected the appellant and asked P. W. 2 to make an enquiry. P.W.

2 enquired the appellant who gave some prevaricating answers. But, ultimately, the appellant admitted that the cows were stolen by him and that he

belonged to Thumbal village. The appellant was taken to the police station by P. Ws. 2 and 4. P.W. 2 gave the report (Ex. P. 1) to the police. The

only cross examination of this witness is that when he caught the appellant, he did not have the cows then. So far as the admission made by the

appellant that the cows were stolen by him is concerned, it was not challenged. Such an admission has been spoken to by P.W. 3 and also P.W.

The testimony of P. Ws. 3 and 4 about the admission made by the appellant that the cows, MO. 1 series, were stolen has not been challenged

in cross-examination. In fact, P.W. 6 states that P W. 1 identified the cows as his own. Even this evidence went unchallenged. P.W. 7 speaks to

the complaint given by P.W. 1 on 27th July 1969 stating that his cows were stolen. He speaks to the identification of the cows in P.W. 6''s house

by P.W.1. There is hardly any cross examination of the testimony of this important prosecution witness. In his statement under S. 342, Crl P.O.,

the appellant claimed that the cows belonged to Molayan, D.W. 1. But D.W.1 disowned ownership of the two cows, M.O.1 series, the evidence

of the prosecution witnesses has been accepted by the trial Sessions Judge, and I have no hesitation in accepting the testimony of these witnesses. I

held that the offence under S. 379 I.P.C. is amply and satisfactorily proved against the appellant.

Mr. Vhillaivillalan, amicus curiae, argued that although it is a second offence and that he has already suffered rigorous imprisonment for four

years for the committing of the first offence, the punishment need not be inflicted on the appellant to the extent of 41/2 years. He cited the authority

In In Re: Munuswamy, Wherein Yanya All. J. held:

Although the fact of previous convictions is an element in determining the sentence, essential regard should be had to the facts of the case, the

gravity of the offence and the circumstances in which it was committed in assessing the punishment and the mere circumstance that there were

previous convictions should not result in the infliction of a sentence that is for out of proportion to the merits of the main case. In the case of a

simple theft without any aggravating circumstances a sentence of rigorous imprisonment for one year would more than meet the ends of justice eves

though the accused might have been convicted on several prior occasions under S. 379, I.P.C.

There is another ruling, which is brought to my notice in Chakka v. State of Kerala (1971) M.L.J. Cri. 151, wherein Krishna Iyer, J. in felicitous

language held:

The mere fact that a man has been convicted many times before may not by itself be a sufficient reason for passing a heavy sentence on him for an

offence which is trivial is itself. We must also try to find out whether the accused is irreclaimably addicted to serious crime, and have some regard

to his social and family circumstances as well as his previous career.'' ''While the sentences imposed on criminals should be adequate to the

offence, there is every reason why they should not be excessive. The winds of change are blowing towards a correctional approach to and the

humanist therapy in handling criminals. Considering the age of the offender, the possibility of redeemability, the family obligations to which he is

alive, the fact of his eldest son coming forward to assure his father''s good behavior and the, other environs, it cannot be held that any irreversible

change is the psychic chemistry of the man has taken places. The prognosis is not too bad to deserve dismissal of his prayer for ameliorative

treatment. The trial court as well as the appellate court have awarded six months rigorous imprisonment for the theft of Rs. 10 of which he was

found guilty, True it is, that the offence cannot be treated as trivial, nor can it be exaggerated out of all proportions to dramatise the scouted as a

public criminal who deserves sending punishment of a very severe sort.

Taking this proposition of law into consideration and also considering the comparatively insignificant value of the two cows to be Rs. 200, I

consider that a period of rigorous imprisonment for one year would meet the ends of justice and accordingly I reduce the period of rigorous

imprisonment awarded against the appellant to one year. The conviction is confirmed, and subject to the modification in the sentence, the criminal

appeal is dismissed.

I am earnestly obliged to Mr. Thillalvilalan for the assiduous manner of his taking me through the entire evidence in this appeal and for his able

assistance as amicus curiae.