IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.Rev.Pet.No. 1414 of 2009() ------------------------------ CRA.129/2007 of ADDL. SESSIONS COURT (ADHOC-I), MANJERI CC.569/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------- ABDURAHIMAN,S/O.MOHAMMED, VALLIKKAPARAMBIL HOUSE, NARIYAKKAMPOYIL, NEELANCHERI, NILAMBUR TALUK, MALAPPURAM. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1414 of 2009 -------------------------------------- Dated this the 22nd day of June, 2009. ORDER Petitioner faced trial in the court of learned Judicial Magistrate of First Class-I, Manjeri in C.C.No.569 of 2006 for offences punishable under Sections 457 and 380 read with Section 34 of the Indian Penal Code (for short, “the Code”). Charge is that on 31.5.2008 at about 1 a.m. petitioner along with a juvenile and in furtherance of their common committed lurking, trespass into the smoke house of PW1 and dishonestly removed 76 rubber sheets weighting 51 ½ kgs. Prosecution examined PWs 1 to 7 and proved Exts.P1 to P5 and MO1. Learned magistrate found that offence under Section 457 of the Code is not established. Petitioner was convicted for offence punishable under Section 380 of the Code and sentenced to undergo simple imprisonment for two years and to pay Rs.5,000/- as fine failing which he was to undergo simple imprisonment for six months. Petitioner challenged that conviction and sentence in appeal. Learned Additional Sessions Judge (Adhoc-I), Manjeri confirmed the conviction but modified the sentence as simple imprisonment for one year. That judgment is under challenge in this revision. 2. Learned counsel contended that there is no sufficient or reliable evidence to prove the alleged theft involving petitioner. According to the learned counsel, alleged discovery of rubber sheets does not come within the Crl.R.P.1414/2009 2 purview of Section 27 of the Evidence Act (for short, “the Act”). 3. PW1 gave evidence that on the night of 31.5.2006 76 rubber sheets were stolen from his smoke house. Later, Sub Inspector, Karuvarakundu brought two persons including the petitioner to his house. He identified the stolen rubber sheets at Kalikavu police station. 75 of those rubber sheets were returned to him from court. MO1 is the remainder. PW2 is a neighbour of PW1. He is an attestor in Ext.P1, scene mahazar. PW3 is the owner of M/s.Anzar Rubber Traders and claimed that petitioner is acquainted to him. Petitioner brought 51 ½ kgs of rubber sheets in a maruthi car and sold the same to him. Later, police came with the petitioner and another to his shop. He produced the rubber sheets before the police. MO1 is one of those rubber sheets. PW4 is an employee of PW3 and is an attestor in Ext.P2, mahazar of seizure of the rubber sheets. He claimed that police along with petitioner and another came to the shop and seized the rubber sheets. PW5 , Sub Inspector claimed that he arrested petitioner and the juvenile in connection with Crime No.99 of 2006 of his station and when they were questioned information regarding the incident on hand was revealed. PW5 registered case against the petitioner and juvenile. When questioned, petitioner told him that the rubber sheets are sold in a shop and if taken there, he will show the shop and person concerned. As led by the petitioner and the juvenile PW5 reached the shop of PW3 and seized the rubber sheets. He identified MO1 as one among those rubber sheets. Ext.P2 is the mahazar for seizure of rubber sheets. Ext.P2(a) is the relevant portion of the information given by the petitioner and which led to Crl.R.P.1414/2009 3 the discovery. As pointed out by the petitioner he went to the place of occurrence and prepared the mahazar. Case was transferred to Kalikavu police station since incident occurred within the local limits of that police station. PW7, ASI claimed that CW10 of that police station re-registered the case. PW7 prepared Ext.P1, mahazar for scene of occurrence. 4. In this case authorship of sale of rubber sheets to PW3 is not revealed from Ext.P2(a). But there is the evidence of PW3 that petitioner and another came to his shop with 51 ½ kgs of rubber sheets and he purchased the same from the petitioner and the other. Thus there is evidence to show that petitioner had sold rubber sheets to PW3. That, petitioner led PW5 to the to the place of occurrence and pointed out the place of occurrence to PW5 is a conduct admissible under Section 8 of the Act. Thus there is sufficient evidence to show that petitioner committed theft as alleged. Therefore, conviction does not require interference. 5. So far as sentence is concerned, appellate court was lenient and the sentence awarded to the petitioner was modified as simple imprisonment for one year. On the request of the counsel, report of the Probation Officer was called for. Probation Officer has reported that petitioner is involved in several cases. Learned counsel submits that petitioner was aged 20 years during the relevant time and that he may be given an opportunity to correct himself. 6. I have gone through the report of Probation Officer. It is seen that petitioner is involved in several cases of theft. On the facts and circumstances of the case, I am not inclined to think that this is a fit case for invoking Section 4 Crl.R.P.1414/2009 4 of the Probation of Offenders Act. Therefore, that request cannot be accepted. At the same time, taking into account the age of petitioner during the relevant time and considering all other circumstances, I am satisfied that simple imprisonment for six months is sufficient in the ends of justice. Sentence is modified accordingly. Resultantly, this revision is allowed in part to the extent that sentence awarded to the petitioner is modified as simple imprisonment for six months. Period of detention if any undergone in this case will be set of against the sentence awarded. Crl.M.A.No. 4265 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks