IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.Rev.Pet.No. 590 of 2010(C) ------------------------------------ (CRA.682/2008 of SESSIONS COURT, KOZHIKOE CC.28/2007 DATED 11/07/2008.) .................... REVN. PETITIONER(S): REVN.PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------------------------- SAJEEV KUMAR, AGED 38 YEARS, S/O. BHASKARAN NAIR, THANOTH VEEDU, NANMINDA P.O., NANMINDA AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN RESPONDENT(S): RESPONDENT/COMPLAINANT -------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. P.N. SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.590 of 2010 ------------------------------- Dated this the 15th day of September, 2010. O R D E R The revision petitioner is the accused in C.C.No.28/07 on the file of the Spcl. Judicial First Class Magistrate Court (Marad cases)-Kozhikode, in which the offence alleged is u/s.379 r/w.34 of IPC. By judgment dated 11.7.2008 in C.C.No.28/07, the Court of Special Chief Judicial Magistrate (Marad cases)-Kozhikode, convicted the accused u/s.379 r/w.34 of IPC and accordingly, sentenced him to undergo simple imprisonment for 1 year. 2. Though an appeal was filed against the above conviction and sentence by judgment dated 16.9.2008, the Court of Sessions-Kozhikode Division, in Crl.A.No.682/08, dismissed the appeal confirming the conviction and sentence. Hence this revision petition. 3. I have heard Adv.Smt.Priya P.K., the learned counsel appearing for the revision petitioner as well as the learned Public Prosecutor. 4. The prosecution case is that, on 12.8.2002 between 9 2 Crl.R.P.No.590 of 2010 a.m. and 12.45 p.m. at a place in front of the casualty of Medical College Hospital at Kozhikode, the accused persons in furtherance of their common intention, committed the theft of a jeep bearing Regn.No.KL-11 E 1152, when the same was parked in front of the casualty of the Medical College hospital. The vehicle is belonged to one Abdul Jaleel, who is PW1. On the basis of the information furnished by him, Crime No.249/02 was registered in the Medical College Police Station for the offence punishable u/s.379 r/w.34 of IPC. After investigation a report was filed by the police against two accused including the revision petitioner. On the appearance of the revision petitioner, a formal charge was framed u/s.379 r/w.34 of IPC, which when read over to the accused, denied the same and pleaded not guilty. As the 2nd accused was absconding, the case against him is split up and refiled as L.P.No.163/06. During the course of the trial, Pws.1 to 6 were examined and Exts.P1 to P8 were marked from the side of the prosecution. From the side of the defence DW1 was examined and Ext.D1 was marked. It is on the basis of the 3 Crl.R.P.No.590 of 2010 available materials and records, the trial court as well as the lower appellate court convicted and sentenced the revision petitioner. 5. The learned counsel for the revision petitioner emphatically submitted that, the evidence adduced by the prosecution is not sufficient to prove the charge against the revision petitioner. It is also the contention of the learned counsel that, though the prosecution has claimed that PW2 saw the accused removing the jeep from the premises of the Medical College Hospital, PW2 miserably failed to identify the accused. It is also the contention of the learned counsel that, though the police has framed that the vehicle was seized and the accused was arrested at 3.30 p.m. on 12.8.2002, as per Ext.D1, the seizure was effected at about 11.30 p.m. on 12.8.2002. Therefore, the police reports itself is contradictory in nature and as such, the prosecution case can not be believed. Therefore, the learned counsel submitted that the revision petitioner is entitled to get a clearance of acquittal. 4 Crl.R.P.No.590 of 2010 6. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1, 2 and 4 are sufficient to prove the offence alleged against the revision petitioner and both the courts have concurrently found the guilt of the revision petitioner and therefore no interference is warranted. 7. I have carefully considered the contentions advanced by both the counsels for the revision petitioner as well as the Public Prosecutor and I have gone through the evidence, depositions of the witnesses and the materials on record. 8. The specific prosecution case is that, the accused/ revision petitioner and another man removed the jeep in question, which was found in the possession of PW1, was found removed from the parking area of Medical College Hospital, Kozhikode, without the consent of PW1 and within a short span of 5 hrs., the vehicle was seized and the accused was arrested on the same day. Ext.P1 FI Statement is dated 12.8.2002. On the basis of Ext.P8 FIR, Crime No.249/02 was registered. Regarding the details of the vehicle and the situation under 5 Crl.R.P.No.590 of 2010 which he preferred Ext.P1 statement, was convincingly deposed by PW1. PW2 who is engaged in collecting parking fee in front of the Medical College Hospital, stated that he had seen accused No.1 with the help of another man, taking the vehicle while the vehicle was parking in front of the casualty of the Medical College Hospital. He had deposed that he witnessed accused No.1, the revision petitioner sitting inside the jeep.. seat and the other acused was pushing the jeep. PW2 is the attested ... of seizure.. and Ext.P5 arrest memo. It was PW2, the Addl. Sub Inspector of police attached to Nal... Police Station who seized the vehicle on 12.8.2002 at about 3.30 p.m. The trial court as well as the lower appellate court after consideration of the prosecution evidence that consists of oral testimonies of Pws.1 and 2 coupled with the contents in Ext.P1 .... came into a conclusion that the jeep in question was parked in front of the Medical College Hospital, Kozhikode and from where the accused stealthily removed the jeep. The evidence of PW4, the Addl. Sub Inspector of Police, Nallada Police Station and Exts.P4 6 Crl.R.P.No.590 of 2010 and P5 would show that the vehicle was seized from the possession of the revision petitioner at about 3.30 p.m. on 12.8.2002. The learned counsel for the revision petitioner submitted that though the prosecution has claimed that the vehicle was seized at about 3 p.m. on 12.2.2002, the entry in Ext.D1 of the Nallada Police Station would show that the seizure was at about 11.30 p.m. In the absence of any serious contention or challenge regarding the seizure that the vehicle from the possession of the revision petitioner the minor discrepancies that occurred while endorsing the seizure in Ext.D1 will not helpful for the defence. 9. In the light of the facts and circumstances involved in the case and the materials and evidence referred above, it can be seen that the jeep in question was stealthily removed from the parking area of the Medical College Hospital between 9 and 12.30 a.m. on 12.8.2002 and the vehicle was seized by the Nallada Police Station at about 3.30 p.m. on the same day. When there is no challenge against the prosecution evidence 7 Crl.R.P.No.590 of 2010 and the prosecution allegation regarding the seizure of the vehicle from the possession of the accused and there is no proper account for the possession of the said vehicle, I am of the view that the prosecution has succeeded in establishing the charge against the revision petitioner. Therefore the concurrent findings of the trial court as well as the lower appellate court is only to be approved and I do so. 10. Regarding the sentence, it can be seen that the trial court has awarded only 1 year simple imprisonment and set off was allowed. Having regard to the facts and circumstances involved in the case, especially when the accused has involved in several similar cases, he does not observe any leniency and therefore no interference with the sentence also called for. In the result, there is no merit in the revision petition and accordingly the same is dismissed. V.K.MOHANAN, Judge. 8 Crl.R.P.No.590 of 2010 ami/