IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 Crl.Rev.Pet.No. 611 of 2008() ----------------------------- CRA.394/2006 of I ADDL. SESSIONS COURT, PALAKKAD CC.291/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER: APPELLANT --------------------------- KUMARAN @ VIJAYAN, C.NO.2846, CENTRAL PRISON, KANNUR. BY ADV. SRI.R.KRISHNAKUMAR (STATE BRIEF) RESPONDENTS: ------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON 10/07/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. ````````````````` Crl. R.P. NO. 611 OF 2008 ````````````````` Dated: 10-07-2008 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.291 OF 2005 on the file of the J.F.C.M. , Mannarkkadu for offences punishable under Sections 457, 380 and 461 I.P.C. challenges the conviction entered and the sentence passed against him for the aforementioned offences. 2. The case of the prosecution can be summarised as follows: On 16-11-2004 at about midnight the accused broke open the kitchen door of a house bearing No. IX/115 of Thachanattukara Panchayat and belonging to P.W.3 and after gaining entry into the said house committed theft of 45 gms. of gold ornaments kept in the almirah. The accused has thereby committed offences punishable under Sections 457, 380 and 461 I.P.C. 3. 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 8 witnesses as P.Ws 1 to 8 and Crl. R.P. NO. 611 OF 2008 -:2:- got marked 8 documents as Exts. P1 to P8 and a gold ingot as MO1. 4. 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 did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 25-4-2006 found the revision petitioner guilty of the offences and sentenced him to simple imprisonment for two years and to pay fine of Rs. 1,000/- and on default to pay the fine to suffer simple imprisonment for three months under Sec. 457 and 380 I.P.C. and simple imprisonment for one year under Sec. 461 I.P.C. The substantive sentences were directed run concurrently. On appeal preferred by the revision petitioner before the Sessions Court as Crl. Appeal No. 394 of 2006 before the Sessions Court, Palakkad, the I Addl. Sessions Judge as per judgment dated 17-2-2007 dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioner. Hence this Revision. 6. I heard Adv. Sri. R. Krishna Kumar, the learned counsel appearing for the revision petitioner on State Brief and Adv. Sri. C.M. Crl. R.P. NO. 611 OF 2008 -:3:- Nazar, the learned Public Prosecutor. 6. P.W.3 (Ramla) had left for her relatives house on 16-11- 2004 after locking the door of the house. On 17-11-2004 at about 7 a.m. when she returned to her house she found the door lying open and a gold necklace weighing three sovereigns, a gold chain weighing three sovereigns, a gold ear stud weighing half sovereign, two finger rings each weighing ½ sovereigns and one bangle weighing half a sovereign stolen from the house. P.W.4 who is a neighbour of P.W.3's house had also seen on the next morning that the house burgled on the next day morning. P.W.1 was the Sub Inspector of Police, Munnar. He arrested the revision petitioner during the early hours of 12-8-2005 under suspicious circumstances and registered Ext.P1 F.i.R. under Sec. 41 (1)(d) Cr.P.C. On his interrogation, the accused made a confession that he had sold the gold ornaments to one Soukath Ali. Ext.P2 is the said confession. Pursuant to the said confession the accused revision petitioner led the police party to P.W.8 from whom MO1 gold ingot weighing 45 gms was seized by P.W.1 under Ext.P3 mahazar. Since the occurrence took place within the limits of the Nattukal Police Station, the F.I.R. was transferred to that Police Station. P.W.2 is the son of Shaukath Ali and he also deposed in terms of the prosecution case. P.W. 8 also confessed that the Crl. R.P. NO. 611 OF 2008 -:4:- accused had sold the gold ornaments to him and that he had converted the same into MO1 ingot . So the testimony of P.W.3 that she lost the ornaments corroborated and the prosecution has been able to connect the accused with the offence. 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. 7. 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 fact that the petitioner is involved in three other crimes namely Crime Nos. 146 of 2005, 48 of 1997 of Nattukal Police Station for similar offences and Crime No. 622 of 2005 of Mannarkkadu Police Station for similar offences, I do not think that the sentence imposed on the petitioner is excessive or disproportionately harsh. I am also not inclined to give concurrency of the sentence imposed in this case with those in the other cases under Sec. 427 Cr.P.C. by applying the ratio in Ammavasal and Anr. v. Sub Inspector of Police, Valliyannoor - AIR 2000 SC 3544 Crl. R.P. NO. 611 OF 2008 -:5:- and Mohd. Akhtar Hussain v. Assistant Collector of Customs - AIR 1988 SC 2147. The sentence imposed on the revision petitioner is confirmed. In the result, this Revision is disposed of confirming the conviction entered and the sentence imposed as above. Dated this the 10th day of July 2008. V.Ramkumar, Judge. ani. Crl. R.P. NO. 611 OF 2008 -:6:- V. RAMKUMAR, J. ````````````````` Crl. R.P. NO. 611 OF 2008 ````````````````` Dated: 10-07-2008 O R D E R