IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 526 of 2004(A) ------------------------------ CRA.105/2002 of ADDL. SESSIONS COURT (ADHOC I), THODUPUZHA CC.474/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED ------------------------------------------ ABHILASH THOMAS, VADAKKENPARAMBIL HOUSE, MAVADY P.O., KALAKKADU, NEDUMKANDAM, IDUKKI DISTRICT. BY ADV. SRI.C.J.JOY SRI.V.J.JAMES RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REP.BY SUB INSPECTOR OF POLICE, NEDUMKANDAM, (CRIME NO.133/1997 OF NEDUMKANDAM POLICE STATION) THROUGH POLICE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 526 OF 2004 =========================== Dated this the 12th day of August,2010 ORDER Petitioner the first accused in C.C.474/1997 on the file of Judicial First Class Magistrate's Court, Nedumkandam filed this revision challenging the concurrent conviction and sentence for the offence under section 457, 380 and 461 read with section 34 of Indian Penal Code. Prosecution case is that on 9.6.1997 at about 2 a.m. petitioner along with the second accused broke opened the shop room of PW1 at Thookkupalam town and committed theft of 902 grams of silver ornaments viz anklets and girdles, which were placed in the showcase and valued at Rs.8500/- and they thereby committed the offences. PW1 furnished Ext.P1 First Information Statement based on which crime was registered under Crl.R.P.526/2004 2 Ext.P4 F.I.R. PW8, the Sub Inspector of Police, prepared Ext.P2 scene mahazar and conducted the investigation. PW9, the Sub Inspector of Police, Nedumkandom Police Station arrested the petitioner. On the information furnished by the petitioner that he concealed the silver ornaments at the Cardamom Estate at Irachippara, as lead by the petitioner PW9 reached the Cardamom Estate and under Ext.P3 mahazar recovered M0S 1 and 2 which are the stolen articles. After completing the investigation, PW8 laid the charge. Learned Magistrate has taken cognizance for the offences. Both the accused pleaded not guilty. Prosecution examined nine witnesses, marked Exts.P1 to P5 and identified M0s 1 and 2. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found the second accused not guilty and acquitted him as there is no incriminating evidence as against the second accused. But accepting the recovery of M0S 1 and 2, on the information furnished by the petitioner under Ext.P3 mahazar proved by the evidence of PW8 Crl.R.P.526/2004 3 and corroborated by the attesting witness, learned Magistrate convicted the petitioner for the offences under sections 457, 380 and 461 read with section 34 of Indian Penal Code. He was sentenced to rigorous imprisonment for one year and a fine of Rs.1000/- for the offence under section 457 IPC, rigorous imprisonment for one year and a fine of Rs.1000/- for the offence under section 461 IPC. Substantive sentences were directed to be run concurrently. Petitioner challenged the conviction and sentence before Sessions Court, Thodupuzha in Crl.A.105/2002. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner argued that the courts below did not properly appreciate the evidence and in any case Crl.R.P.526/2004 4 the sentence awarded is excessive. It is submitted that petitioner has already been in custody for 165 days and the said period may be set off and the sentence may be reduced to the period already undergone. Learned Public Prosecutor pointed out that the evidence conclusively establish that petitioner committed the theft after breaking open the shop on the night of 9.6.1997 and in such circumstances the conviction is perfectly legal. It is also pointed out that petitioner was involved in several cases and was convicted and in such circumstances he is not entitled to any leniency. 4. The fact that shop of PW1 was broke opened on the night of 9.6.1997 and the silver ornaments kept in the shop were stolen, was proved by the evidence of PW1 corroborated by Ext.P1 First Information Statement. This aspect was not challenged at the time of recording the evidence. M0S 1 and 2 were identified by PW1 as the stolen articles. Though it was contended before the courts below that as the numbers of the anklets and Crl.R.P.526/2004 5 girdles were not mentioned in the First Information Statement, evidence of PW1 cannot be accepted, courts below rightly found that total weight of the ornaments stolen was disclosed in Ext.P1 First Information Statement. PW1 identified M0s 1 and 2 as those stolen articles. On the evidence I find no reason to differ with the finding of the courts below that M0s 1 and 2 were stolen from the shop of PW1, on the night of 9.6.1997 after breaking opened the shop. 5. Then the only question is whether petitioner has committed the theft after committing house trespass on the night of 9.6.1997. M0s 1 and 2 were recovered by PW9, the Sub Inspector of Police under Ext.P3 recovery mahazar. The evidence of PW9 corroborated by Ext.P3 mahazar establishes that he reached the Cardamom Estate as led by the petitioner, on the information furnished by the petitioner and recovered M0s 1 and 2 series of stolen articles. But for the information furnished by the petitioner, PW9 could not have recovered M0s Crl.R.P.526/2004 6 1 and 2. Though there was some delay, from the date of theft to the date of recovery, as rightly found by the courts below when petitioner has no case that he came into possession of M0s 1 and 2 by purchasing them as stolen property or without the knowledge that they are the stolen property, the only presumption that could be drawn is that petitioner committed the theft after entering the shop building by breaking open the shop room. The conviction of the petitioner for the offence under sections 457, 461 and 380 of Indian Penal Code, in such circumstance is perfectly legal. 6.Then the question is regarding the sentence. Though learned Sessions Judge awarded separate sentence for the offences under sections 457, 380 and 461 IPC, all the sentences were directed to be run concurrently. Learned Magistrate awarded only a sentence of rigorous imprisonment for one year each apart from the fine of Rs.1000/- for the offences. Considering the nature of the offence I find that petitioner is not entitled to get any Crl.R.P.526/2004 7 leniency. 7. Revision fails and is dismissed. Petitioner is entitled to get set off, as provided under section 428 of Code of Criminal Procedure, if he has been in custody for any period in this case. Petitioner is directed to appear before the Judicial First Class Magistrate,Nedumkandom on 14.9.2010. Judicial First Class Magistrate is directed to execute the sentence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006