IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 4549 OF 2007() ------------------------------ CRA.186/2000 of ADDL.SESSIONS COURT (ADHOC)I, KASARAGOD CC.140/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD .................... REVN. PETITIONER(S)/APPELLANTS/ACCUSED 1 & 2 ----------------------------------------------------------------- 1. RABDEEN @ SALIM, S/O.NAHUR PICHC, AGED 25 YEARS, ARUNACHALAM COLONY, KARAMBAKAM, CHENNAI, NOW RESIDING AT CHERIYA ALAMBADY, MUTTATHODY VILLAGE P.O., ALAMPADY, KASARGOD. 2. M.A.KABEER, S/O.ABDUL KADER MOULAVI, AGED 22 YEARS, ERIYAL, KASARGOD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING S.I. OF POLICE, KASARGOD. PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 4549 OF 2007 ------------------------------------------ Dated this the 24th day of November, 2008 O R D E R Revision petitioners are accused 1 and 2 in C.C.140 of 2000 on the file of Chief Judicial Magistrate, Kasaragod. Along with the third accused they were charge sheeted by Sub Inspector of police, Kasaragod for the offence under section 457, 380, 461 and 414 of Indian Penal Code. Prosecution case was that on the night of 14.3.1999 petitioners committed house breaking by entering house No.KMC XXV/464 where PW10 is residing and situated at Beeranthbayal and they committed theft of cash of Rs.2,000/-, a watch, a camera and gold coin, shirt pieces and third accused assisted second revision petitioner in disposing the stolen articles and theft was committed in furtherance of their common intention and all the accused thereby committed the offences under section 457, 380, 461 and 414 IPC. Accused pleaded not guilty. Prosecution examined PWs 1 to 8 and marked Exts.P1 to P12 and identified MOs 1 to 3. Petitioners did not adduce any evidence. Learned Magistrate on the evidence acquitted the third accused but convicted the CRRP 4549/07 2 petitioners for the offence under section 457, 380 and 461 of IPC. They were sentenced to rigorous imprisonment for three years for the offence under section 457, in addition to a fine of Rs.1,000/- and in default simple imprisonment for one month and rigorous imprisonment for two years each for the offence under section 380 in addition to a fine of Rs.1,000/- and in default simple imprisonment for one month and rigorous imprisonment for one year for the offence under section 461. All the substantive sentences were to run concurrently. Petitioners challenged the conviction before Sessions Court, Kasaragod in Crl.Appeal 186 of 2000. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but modified the sentence for the offence under section 457 to rigorous imprisonment for one year and a fine of Rs.1,000/- and in default simple imprisonment for one month for the offence under section 457 of IPC. They were sentenced to rigorous imprisonment for one year and a fine of Rs.1,000/- and in default simple imprisonment for one month for the offence under section 380 of IPC. They were also sentenced to rigorous imprisonment for one year for the offence under section 461 of IPC. Sentences were directed to be run concurrently. CRRP 4549/07 3 Petitioners were granted set off under section 428 of Cr.P.C for the period they were in custody during investigation and trial. Revision is filed challenging conviction and sentence. 2. Learned counsel appearing for revision petitioners and learned Public Prosecutor were heard. 3. Learned Magistrate and the learned Sessions Judge appreciated the evidence of PW1 corroborated by Ext.P1 F.I. statement and found that PW1 was residing with his family in building No.XXV/464 and on the night of 14.3.1999 somebody entered the building by removing the grill and committed theft of cash, watch, camera, gold coin and shirt pieces kept inside the almirah by breaking open the almirah. MOs 1 to 3 were found to be the stolen gold coin, stolen camera and the stolen watch respectively. It was also found that the theft was committed by entering the house by removing of the grills and breaking open the almirah during night. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and accepted the prosecution case on that aspect. I find no reason to differ with the finding as it is perfectly in accordance with the evidence. 4. The prosecution case is that after the petitioners were CRRP 4549/07 4 arrested on 2.2.2000 at about 3.20 p.m. from Kasaragod bus stand, they were questioned and on the information furnished by second petitioner MO2 camera was recovered under Ext.P4 recovery mahazar. The Courts below found that the recovery of MO2 under Ext.P4 recovery mahazar, on the information furnished by second revision petitioner by PW8 connects him to the theft after committing house break by night. Similarly relying on the evidence of PW8 with Ext.P5 recovery mahazar it was found that MO3 watch was recovered on the information furnished by the first revision petitioner. Courts below rightly accepted the evidence and as it is proved by the evidence of PW1 that MOs 2 and 3 are the stolen articles which were recovered by PW8 on the information furnished by petitioners. Petitioners were convicted for the offences under section 457, 380 and 461of IPC. I find no reason to interfere with the conviction, which is perfectly legal. 5. Then the only question is regarding the sentence. Learned Sessions Judge reduced the sentence to rigorous imprisonment for one year finding that petitioners are not involved in any other case. In such circumstances interest of justice will be met if the sentence is reduced to simple CRRP 4549/07 5 imprisonment for five months in addition to the fine of Rs.1,000/- each for the offences with the default sentence as awarded by learned Sessions Judge. The sentence shall run concurrently. Petitioners are also entitled to get set off for the period they have been in custody during the investigation as well as during trial and if any subsequently. Revision is allowed in part. Conviction of the petitioners for the offence under sections 457, 380 and 461 of IPC are confirmed. The sentence is modified as follows. Petitioner are sentenced to simple imprisonment for five months in addition to a fine of Rs.1,000/- and in default simple imprisonment for one month each for the offence under section 457 and 380 of IPC. For the offence under section 461of IPC they are sentenced to simple imprisonment for five months. Substantive sentences shall run concurrently. Petitioners are entitled to set off under section 428 of Cr.P.C. for the period they were in custody during investigation and trial. M. SASIDHARAN NAMBIAR, JUDGE Okb/-