IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 Crl.Rev.Pet.No. 2107 OF 2007() ------------------------------ CRA.219/2001 OF ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA CC.3/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAPPANA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- BABU, C.NO.1461 CENTRAL PRISON, THIRUVANANTHAPURAM BY ADV. SRI.P.V. VIJAYAKUMAR (STATE BRIEF) RESPONDENT(S)/COMPLAINANT & STATE: --------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2107 OF 2007 ------------------------------------------ Dated this the 4th day of November, 2008 O R D E R Revision petitioner was concurrently convicted and sentenced for the offence under section 379 read with section 34 of IPC. Prosecution case was that on 4.10.1995 petitioner along with the first accused approached PW1, a videographer and requested to accompany them to take video of scenery. PW1 accompanied the two accused and took videos. While PW1 was travelling with them in PKV bus and the bus reached Asoka junction, Kattappana and PW1 started to get down, it was found that MO3 VIP suitcase containing video camera as well as the video cassettes were missing. So also the two accused. According to the prosecution the accused in furtherance of their common intention committed theft of the video camera of Panasonic company worth Rs.49,150/- along with MO3 suitcase and MO2 cassettes and thereby committed the offence under section 379 read with section 34 of IPC. Ext.P1 F.I. Statement of PW1 was recorded on the evening of 5.10.1995 and based on that Ext.P1(a) F.I.R. was prepared and Crime 345 of 1995 was CRRP2107/07 2 registered. While PW11 the ASI was searching for the accused, at Kumali junction PW11 found both the accused at about 4.30. p.m. on 15.10.1995. The VIP bag containing the video camera and cassettes were also in the possesion of the two accused. They were arrested and Ext.P2 mahazar was prepared in the presence of PW6, the receptionist of Lake Queen Lodge near to the scene from where the accused were arrested. PW10 the investigating officer questioned the accused and got identified MOs 1 to 4 as the stolen articles. After completing investigation he laid the charge before Judicial First Class Magistrate, Kattappana. 2. Charge for the offence under section 379 read with section 34 of IPC was framed and read over to the two accused. They pleaded not guilty. First accused subsequently absconded and the case as against him was refiled. Prosecution examined 11 witnesses and marked 3 exhibits and identified MOs 1 to 5. On the side of petitioner two witnesses were examined. Learned Magistrate on the evidence found the petitioner guilty. He was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.2,000/- and in default simple imprisonment for six months. Petitioner challenged the conviction and sentence CRRP2107/07 3 before Sessions Court, Thodupuzha in Crl. Appeal 219 of 2001. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and dismissed the appeal. Petitioner was subsequently arrested. While undergoing sentence, revision was filed from jail. Mr. P.V. Vijayakumar was appointed the State Brief to argue the revision. 3. Learned counsel appearing for petitioner and the learned Public Prosecutor were heard. 4. The learned counsel argued that there is no evidence to prove that petitioner committed the theft as alleged and Courts below did not properly appreciate the evidence. It was argued that petitioner was only found along with first accused and based on that fact alone petitioner cannot be convicted and therefore the conviction and sentence is not sustainable. 5. The evidence of PW1 was appreciated by learned Magistrate and the learned Sessions Judge in the proper perspective. It was found that PW1 is a credible and reliable witness. The evidence of PW1establish that petitioner and the other accused were travelling with PW1 on 4.10.1995 through Upputhara-Kattappana route for taking videos on the request of the two accused. His evidence also proves that petitioner and CRRP2107/07 4 the other accused were with PW1 while travelling in PKV bus. This fact was corroborated by the evidence of PW9 the conductor of the PKV bus. PW9 also corroborate the evidence of PW1 that when the bus reached Asoka junction the accused and the MO1 VIP box containing the camera were missing. The evidence of PW1 with the evidence of PW8 Head Constable establish that Ext.P1 F.I. Statement of PW1 was recorded by the Head Constable on the evening of 5.10.1995 at 8.30 p.m. Learned counsel argued that Ext.P1 reached the Court only on 7.10.1995 and there is inordinate delay. Ext.P1 F.I. Statement was recorded and Ext.P1(a) F.I.R was prepared at 8.30 p.m. on 5.10.1995. It is seen from the endorsement by the learned Magistrate that Ext.P1(a) reached the Court on the morning of 7.10.1995. Accused were arrested and MOs were recovered only on 15.10.1995 and therefore it cannot be said that Ext.P1 F.I.Statement or Ext.P1(a) F.I.R were subsequently manipulated. Evidence of PW1 establish that MOs 1 to 4 belong to him and while he was travelling along with the petitioner and the first accused they were stolen from the bus before it reached the Asoka junction. The Courts below also accepted evidence of PW1 on the identity of MO1 to 4. It is conclusively proved that CRRP2107/07 5 MO1 to 4 are the stolen articles. Evidence of PW11 corroborated by the evidence of PW6 with Ext.P2 recovery mahazar establish that petitioner and the first accused were arrested at Kumali junction and MOs 1 to 4 were recovered under Ext.P2 mahazar. The evidence of PWs 2 and 3 establish that revision petitioner along with first accused came to their house and stayed there for one day and at that time MOs 1 to 4 were with them. That evidence of PWs 2 and 3 was further corroborated by the evidence of PWs 4 and 5 who had seen the accused including the petitioner taking videos using the camera. Though learned counsel argued that their evidence should not have been relied on, on going through the depositions I do not find any reason to disbelieve their version. It is conclusively proved that MOs 1 to 4 which are the stolen articles were with the petitioner and the other accused and along with MOs 1 to 4 they were arrested by PW11 from Kumali junction. In such circumstances I do not find any reason to interfere with the conviction for the offence under section 379 read with section 34 of IPC. 6. Then the only question is with regard to the sentence. The argument of the learned counsel appearing for petitioner is CRRP2107/07 6 that petitioner is not involved in any other case and therefore leniency may be shown. Learned Public Prosecutor also submitted that petitioner was not involved in any other case. Considering the nature of offence, interest of justice will be met if the substantive sentence is reduced to rigorous imprisonment for 15 months. Revision is therefore allowed in part. Conviction of the petitioner for the offence under section 379 read with section 34 IPC is confirmed. Substantive sentence is modified to rigorous imprisonment for 15 months. Fine and default sentence is confirmed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-