IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 Crl.Rev.Pet.No. 366 of 2002() ---------------------------------------- CRA.240/1999 of ADDL. SESSIONS COURT, THRISSUR CC.649/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER: APPELLANTS/ACCUSED NO.1 TO 4: ------------------------------ 1. JAFFAR, S/O.PULIKKAL KUNJUMON, VISYAM VEETTIL HOUSE, KANIPPAYYUR VILLAGE, PORKKALANGAD DESOM, THRISSUR. 2. JABBAR, S/O.ASSAINAR, MUSLIM VEETTIL HOUSE, KANIPPAYYUR VILLAGE, PORKKALANGAD DESOM, THRISSUR. 3. RASHEED @ ABDUL RASHEED, S/O.PUZHANKARA ILLATH ABOOBAKER,KANIPPAYYUR VILLAGE, POKKALANGAD DESOM, THRISSUR. 4. KABEER, S/O. BAPPU,KARAPPAN VEETTIL, KANIPPAYYUR VILLAGE, PORKKALANGAD DESOM,THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT: RESPONDENT/COMPLAINANT: ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.2602/2002 IN CRL.RP. NO.366/2002 DISMISSED 23.06.2008 SD/- A.K.BASHEER , JUDGE /TRUE COPY/ P.A. TO JUDGE tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.366 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June 2008 ORDER Petitioners were tried for the offence punishable under Sections 380, 457 and 461 read with Section 34 of Indian Penal Code. The trial court found them guilty and they were accordingly convicted and sentenced to undergo rigorous imprisonment for two years under Section 380, rigorous imprisonment for six months under Section 457 and rigorous imprisonment for six months under Section 461 IPC. The above order of conviction and sentence was confirmed in appeal by the Sessions Court. Hence this revision petition. 2. The prosecution case in brief was that the accused had committed theft of a gold ornaments weighing 6½ sovereign and cash of Rs.1,250/- from the residence of PW2 at about 1.30 a.m. on April 23, 1995. The Police had registered the crime on the basis of the First Information statement given by PW2. In the course of investigation, the Police recovered M.O.1 gold chain, Crl.R.P.No.366 OF 2002 :: 2 :: M.O.2 thali, M.O.3 wooden box, M.O.4 cash of Rs.1,250/- etc. from different places pursuant to the information furnished by the accused separately under Section 27 of the Evidence Act. PW4, the Jewellery merchant had deposed before the court that the accused along with PW1, PW3 had come to his shop and sold M.O.1 gold chain, which was recovered by the police later. He had also identified the accused who went his shop along with PW1 and PW3. PW1 had turned hostile to the prosecution. But he had admitted his signature in Ext.P1 seizure mahazar. PW3 had stated that he had gone to the shop of PW4 along with PW1 and accused No.1. But the evidence of PW4 was that all the accused along with PW1 and 3 had gone to the shop. Apart from this minor contradiction, the prosecution had successfully established the fact that the gold chain was recovered from the shop of PW4. As mentioned earlier, Section 27 recovery was effected pursuant to the information furnished by the accused. Similarly, M.O.3 wooden box and M.O.4 cash were also recovered pursuant to the information furnished by the accused. Learned counsel for the petitioner has highlighted certain minor Crl.R.P.No.366 OF 2002 :: 3 :: contradictions in the evidence of PW2 and that of PW4. But having gone through the evidence, both oral and documentary, I do not find any material illegality or irregularity in the concurrent findings entered by the courts below. It has to be remembered that in case of theft and that too from a residential building in the night, there cannot be any direct evidence. But Section 27 recovery effected by the Police coupled with the evidence of PW3 and PW4 would clearly establish the guilt of the accused. 3. In the above facts and circumstances, particularly after going through the orders passed by the courts below, I do not find any reason to interfere with the concurrent finding of guilty entered by the courts below. But in the matter of sentence, I am of the view that some leniency can be shown to the petitioners. The prosecution did not have a case that petitioners were involved in any other case of similar nature. Miss.Maya, learned counsel for the petitioners points out that the petitioners were in their early 20s at the relevant point of time. Crl.R.P.No.366 OF 2002 :: 4 :: Having regard to the peculiar facts and circumstances, I am satisfied that interest of justice will be met, if the sentence imposed on the petitioners is reduced and modified. In lieu of the rigorous imprisonment for two years under Section 380, petitioners are directed to suffer rigorous imprisonment for six months each. But in the matter of sentence for the other two offences, namely, under Sections 457 and 461 IPC, the sentence imposed by the courts below shall be sustained. The sentence shall run concurrently. Petitioners will also be entitled to get set off for the period already undergone. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.366 OF 2002 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.366 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 23rd June 2008