IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 Crl.Rev.Pet.No. 2407 of 2008() ------------------------------ CRA.513/2004 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA CC.647/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... REVN. PETITIONER: ------------------ SAHADEVAN, 53 YEARS S/O.KUMARAN, KOCHUTHATTAMPARAMBU LAKSHAM VEEDU COLONY , WARD NO.111, KUTHIATHODU PANCHAYATH, CHERTHALA. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.B.PRAMOD RESPONDENTS: ------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.2407 of 2008 =================== Dated: 21.07.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who is the accused in C.C. No.647 of 2000 on the file of the J.F.C.M-II, Cherthala for an offence punishable under Sections 379 read with 34 IPC, challenges the conviction entered and the sentence passed against him for the aforesaid offence. 2. The case of the prosecution can be summarised as follows: On 21.7.2000 at about 1 a.m., two accused persons in furtherance of their common intention to commit theft, committed theft of 40 iron liners which are used for fixing railway sleepers and kept in the property of the Railways near Aroor-Kumbalam overbridge. The accused have thereby committed the aforesaid offence. 3. The revision petitioner alone stood trial before the J.F.C.M-II, Cherhtala. Crl.R.P.No.2407/08 -:2:- 4. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 2 documents as Exts. P1 and P2 and 40 iron liners as MO1 series. 5. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He examined one witness as DW1. 6. The learned Magistrate, after trial, as per judgment dated27.10.04 found the revision petitioner guilty of the offences punishable under Section 379 read with 34 I.P.C. and sentenced him to undergo rigorous imprisonment for one year. On appeal preferred by the revision petitioner before the Addl.Sessions Court,Fast Track -1, Alappuzha, the lower appellate court as per judgment dated 16.2.08 dismissed the appeal by confirming the conviction entered and the sentence passed against the revision Crl.R.P.No.2407/08 -:3:- petitioner. Hence, this Revision. 7. Eventhough the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 8. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I do not think that the revision petitioner deserves penal servitude by way of incarceration for the said conviction. I am of the view that the interests of justice will be adequately met by imposing a sentence to be passed hereinafter. Accordingly, the sentence imposed on the revision petitioner is set aside and instead he is sentenced to a fine of Rs.5000/-(Rupees five thousand only) and on default to pay the fine to suffer simple imprisonment for three months. The sentence of imprisonment has been converted into one of fine in Crl.R.P.No.2407/08 -:4:- view of the decision of the Apex Court in Nirmal Lal Gupta v. State of Orissa ( 1995(2) Suppl. SCC 713). The petitioner shall deposit the fine amount within 45 days from today. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. Dated this the 21 st day of July, 2008 V.Ramkumar, Judge. sj