IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 3570 of 2008() ----------------------------------------- CRA.371/2005 of ADDL.SESSIONS COURT FAST TRACK III, TRIVANDRUM CC.1161/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, VARKALA .................... REVISION PETITIONER/APPELLANT/IST ACCUSED ------------------------------------------------------------------------ RAJESH, S/O.RAMANAN, PUTHUKKARIKADAYIL VEEDU, CHIRAYINKEEZHU DESOM, SARKARA VILLAGE. BY ADV. SRI.M.DINESH RESPONDENT/RESPONDENT/COMPLAINANT --------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3570 OF 2008 ............................................ DATED THIS THE 13th DAY OF NOVEMBER, 2008 ORDER Petitioner is the first accused in C.C.1161 of 2004 on the file of Judicial First Class Magistrate-I, Varkala. He, along with three other accused, were convicted and sentenced by the Magistrate. Accused 1 to 3 were convicted for the offences under Section 457 and 380 read with Section 34 Ipc and 4th accused for the offence under Section 411 IPC. Conviction was challenged before Sessions Court, Thiruvananthapuram in Crl.A.371 of 2005. Learned Sessions Judge, confirmed the conviction and sentence as against petitioner and modified the sentence as against 4th accused. Fourth accused challenged that conviction in Crl.R.P. 3402 of 2008. That revision petition was disposed confirming the conviction but modifying the sentence. 2. Learned counsel appearing for revision petitioner and Public Prosecutor were heard. The argument of the learned counsel is that the theft was allegedly committed on 31.3.2004 at 12.15 am and though Pw1 identified MO1 as the stolen article, she did not lodge a complaint and police registered the case based on the alleged confession made by the revision petitioner CRRP 3570/2008 2 and on the evidence, failure to lodge a complaint by PW1 regarding the theft should have been properly appreciated. It was also argued that on the evidence, courts below should not have found that petitioner committed the theft or lurking house trespass in the absence of conclusive evidence. 3. On going through the judgments of the courts below and the arguments of learned counsel, I do not find any reason to interfere with the conviction. Though PW1 did not lodge a complaint, evidence of PW1 corroborated by that of PW3 her sister in law and PW2 her husband establishes that theft was committed on the night of 31.3.2004 and her gold chain was snatched away on that night. Evidence of Pws 1 to 3 conclusively prove that identity of MO1 as the stolen gold chain. Learned Magistrate accepted the evidence of Pws 1 and 3 to fix the identity of MO1 as the stolen gold chain belonging to PW1. Nothing was pointed out to disbelieve their evidence on the identity. Though PW1 did not lodge a complaint immediately after the theft, evidence of PW5, the Branch Manager of Chirayinkeezhu Service Co-operative Bank establishes that MO1 was pledged in the bank by the 4th accused and at that time, petitioner was also present with accused No.4. Evidence of CRRP 3570/2008 3 PW9, S.I establishes that accused 1 to 3 were arrested on 11.10.2004 in Crime 309 of 2004 of Chirayinkeezhu Police Station and based on the information furnished by the accused finding that they are involved in the theft, revision petitioner was questioned and based on the confession, PW9 could reach 4th accused and as pointed out by 4th accused, MO1 gold chain was recovered from PW5 under Ext.P2 seizure mahazar in the presence of PW6. Evidence of PW9 corroborated by the evidence of PW5 establish that MO1 was pledged by the 4th accused. Though 4th accused was convicted only for the offence under Section 411 of IPC, case as against revision petitioner is different. Fourth accused got possession of MO1 from first accused. She was made to pledge the gold chain to enable revision petitioner to get the money. On the evidence, learned Magistrate and learned Sessions Judge rightly convicted revision petitioner for the offence under Section 380 and 457 IPC. Conviction is legal. 4. Then the question is with regard to the sentence. Learned Sessions Judge modified the sentence to rigorous imprisonment for six months, in addition to a fine of Rs.1000/- and in default, simple imprisonment for one month for the CRRP 3570/2008 4 offence under Section 457 and rigorous imprisonment for five months and a fine of Rs.1000/- and in default, simple imprisonment for one month for the offence under Section 380 IPC. Learned counsel argued that the judgment does not show whether the sentence is concurrent or consecutive. As learned Sessions Judge did not specifically provide that sentence is consecutive, it can only be concurrent. It is made clear that the sentence is concurrent. I do not find any reason to interfere with the sentence also. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-