IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.Rev.Pet.No. 2132 of 2008() ------------------------------ CRA.127/2007 of I ADDL.SESSIONS COURT, ERNAKULAM CC.41/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER: APPELLANT/ACCUSED: ----------------------------------------------- PRASAD, AGED 41 YEARS, S/O.PURUSHOTHAMAN, VETTOM PAZHAVUR VEEDU, NAYATHODU KARA, ANGAMALY VILLAGE. BY ADV. SRI.NIREESH MATHEW RESPONDENTS: COMPLAINANT & STATE: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, ANGAMALY POLICE STATION, ERNAKULAM DISTRICT, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 2132/2008 : 2 : ORDER ON Crl.M.A. NO. 6431/2008 IN CRL.R.P.NO. 2132/2008 DISMISSED 22.07.2008 sd/- V. RAMKUMAR, JUDGE. /True Copy/ P.A to Judge. V. RAMKUMAR, J. =================== Crl.R.P. No. 2132 of 2008 ==================== Dated this the 22nd day of July, 2008. O R D E R In this revision filed under Section 397 read with Section 401 Cr.P.C., the petitioner who was the 1st accused in C.C. No.41 of 2006 on the file of the Judicial First Class Magistrate-II, Aluva, for an offence punishable under Section 379 r/w Section 34 IPC, challenges the conviction entered and the sentence passed against him concurrently by the courts below for the aforementioned offence. 2. The case of the prosecution can be summarised as follows: On 12.12.2005, at about 11.30 p.m., the two accused persons in furtherance of their common intention to commit theft of the iron gate of the Sivanarayana temple at Nayathodu kara in Angamaly, committed theft of the said gate and have thereby committed the aforementioned offence. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as PWs 1 to 5 and got marked 6 documents as Exts. P1 to P6. CRL.R.P. NO. 2132/2008 :2: 4. After the close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 30.01.2007 found both the accused guilty of the offence and sentenced each of them to undergo simple imprisonment for four months. On appeal preferred by the revision petitioner as Crl. Appeal No. 127 of 2007 before the Sessions Court, Ernakulam, the learned Additional Sessions Judge as per judgment dated 31.03.2008 dismissed the appeal confirming the conviction entered and the sentence passed. Hence, this Revision. 6. Even though the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. CRL.R.P. NO. 2132/2008 :3: 7. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I am of the view that penal servitude by way of incarceration alone can serve an an effective disincentive against such a daring offence committed during the dead of the night. However, taking into account the submission made by the learned Public Prosecutor after instructions that the petitioner is not involved in any other offence and also the fact that the iron gate was recovered at the instance of the petitioner, I am inclined to reduce the sentence to simple imprisonment for two months as against simple imprisonment for four months. He will also be entitled to set off, if any, under Section 428 Cr.P.C. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. Dated this the 22nd day of July, 2008. V.RAMKUMAR, JUDGE. rv