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. 1413 of 2009() ------------------------------ CRA.170/2007 of ADDL. SESSIONS COURT (ADHOC-I) MANJERI CC.606/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ----------------------------------------- ABDURAHIMAN, S/OP. MOHAMMED, VILLIKKAPARAMBIL HOUSE, NARIYAKKAMPOYIL, NEELANCHERI, NILAMBUR TALUK, MALAPPURAM. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK 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.1413 of 2009 -------------------------------------- Dated this the 22nd day of June, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Manjeri in Crl.Appeal No.170 of 2007 confirming conviction of the petitioner for offence punishable under Section 380 read with Section 34 of the Indian Penal Code but modifying the sentence awarded to him. 2. Case is that petitioner along with a juvenile and in furtherance of their common intention committed theft of 90 kgs of rubber sheet from the smoke house of PW1 at Thuvoor on 20.2.2006 at 11.30 p.m.. Alleged incident was revealed on PW7, Sub Inspector, Karuvarakundu arresting and interrogating the petitioner and the juvenile in connection with Crime No.99 of 2006 of his station on 6.7.2006. PW7 registered case against the petitioner and juvenile and after investigation filed final report. 3. PW1 has given evidence regarding the alleged theft of rubber sheets from his smoke house on 20.2.2006. He claimed that after about four months Karuvarakundu police brought the petitioner and another to his house. Later he identified the stolen rubber sheets at the police station. He claimed that of the 120 rubber sheets stolen, 119 were released to him from court and the remaining rubber sheet is identified as MO1. Crl.R.P.No.1413/2009 2 4. PW2 is the owner of M/s.Chaliar Rubbers and claimed that on 21.2.2006 he purchased 120 rubber sheets for Rs.5,000/- from the petitioner and another. They had brought the rubber sheets in two bundles in a maruthi car. On 6.7.2006 Sub Inspector brought the petitioner and another to his shop and only then he realized that he had purchased the stolen rubber sheets. He produced 120 rubber sheets before the police which the Sub Inspector seized as per a mahazar. PW2 identified one of the rubber sheets as MO1. He claimed that he had not disposed of those rubber sheet since the price was low. PW3 is an employee of PW2 and supported the prosecution as to the seizure of 120 kgs of rubber sheets on 21.2.2006. He is an attestor in Ext.P1 and identified MO1. PW4 is an attestor in Ext.P2,scene mahazar. PW5 is an attestor in Ext.P3, mahazar for seizure of maruthi car owned by PW6. PW6 claimed that petitioner used to take his car on rent at the rate of Rs.500/- per day. PW7, Sub Inspector has given evidence that he arrested petitioner and juvenile in connection with Crime No.99 of 2006 and on questioning them he learned about the incident. Thereon he registered the case. Ext.P4 is the FIR. When questioned petitioner told him that rubber sheets are sold in a shop and if taken there he will show the shop and the person concerned. PW7 as led by the petitioner and juvenile went to the shop of PW2 and questioned PW2. PW2 produced 120 rubber sheets which he seized as per Ext.P1. Ext.P1(a) is the relevant portion of the information leading to the discovery. It is also the case of PW7 that petitioner led him to the smoke house of PW1 and showed the place of occurrence. PW7 prepared Ext.P2, mahazar for scene of occurrence. Based on the above evidence courts below found that petitioner committed Crl.R.P.No.1413/2009 3 theft as alleged. Learned counsel contends that there is no reliable evidence to prove the incident. According to the learned counsel the alleged discovery of rubber sheets does not come within the purview of Section 27 of the Evidence Act (for short, “the Act”) in so far as authorship of sale is not spoken by the petitioner. Going through the judgments of the courts below, it is not seen that petitioner had admitted authorship of sale of rubber sheets to PW2. But, that is not fatal since PW2 admitted purchase of 120 rubber sheets from the petitioner and another person. Thus the fact that petitioner along with juvenile had sold rubber sheets to PW2 is proved through the evidence of PW2. The conduct of petitioner pointing out PW2 from whom PW7 had seized the stolen articles can be admitted in evidence under Section 8 of the Act. That conduct of petitioner corroborated the evidence of PW2 that he purchased rubber sheets from the petitioner and another. Another link connecting the petitioner to the crime is that he pointed out the place of occurrence to PW7. According to PW1 theft occurred in his smoke house. That is the place which the petitioner pointed out to PW7. That also is a conduct admissible under Section 8 of the Act. It is true that PW1 had not preferred any complaint about the theft. Considering the evidence, courts below rightly found that there is sufficient evidence to conclude that petitioner in furtherance of common intention committed theft as alleged. Therefore, conviction does not require interference. 5. So far as sentence is concerned, appellate court was lenient enough that 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 Crl.R.P.No.1413/2009 4 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 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. 4264 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks