IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2131 of 2003() ------------------------------ CRA.97/2000 of SESSIONS COURT, MANJERI CC.421/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S): 2ND APPELLANT/2ND ACCUSED: ----------------------------------------------- MANNIL SIDDIQUE ALIAS MANUPPA, S/O. UNNI MOIDEEN, MANNIL HOUSE, POONGODU P.O., VELLAYOOR, KALIKAVU, NILAMBUR TALUK. BY ADV. SRI.K.SHIBILI NAHA SMT.T.J.SEEMA RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: ---------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, KALIKAVU. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.2131 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2009 ORDER Revision petitioner is the second accused in C.C.No.421/1998 of Judicial First Class Magistrate I, Manjeri and appellant in Crl.Appeal No.97/2000 of Sessions Court, Manjeri. He along with accused 1 and 2 were convicted by the Magistrate under Sections 457, 380 and 461 r/w Section 34 of IPC and were sentenced to undergo rigorous imprisonment for two years under each count. The substantive sentences were ordered to run concurrently. The appeal filed by the revision petitioner and accused No.1 Crl.Appeal No.97/2000 and the appeal filed by accused No. 3 Crl.Appeal No.96/2000 were heard together and disposed of by the lower appellate court by a common judgment dated April 11, 2003 wherein accused 1 and 3 were acquitted and second accused was acquitted of the charges under Sections 457, 380 and 461 r/w Section 34 of IPC, but was convicted under Section 411 of IPC and sentenced to undergo rigorous imprisonment for one year. The second accused has come up in revision challenging his Crl.R.P..No.2131/03 Page numbers conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on September 25, 1996 at about 2 AM, accused persons in furtherance of their common intention committed lurking house trespass in the night in the Govt. High School,Pullankode , broke upon the Almirah and committed theft of tape recorder and switch board and that thereby committed the offences punishable under Sections 457, 380 and 461 r/w Section 34 of IPC . 3. The accused persons on appearance before the trial court pleaded not guilty to a charge under Sections 457, 380 and 461 r/w 34 of IPC. PWs 1 to 11 were examined and Exts.P1 to P10(a) were marked on the side of the prosecution. Prosecution also produced MOs 1 to 3 series. 4. The trial court on an appreciation of evidence found the accused persons guilty of the offences punishable under Sections 457, 380 and 461 r/w 34 of IPC, convicted them thereunder and sentenced them as mentioned above. On appeal, the conviction of the revision petitioner was converted into Section 411 of IPC and sentenced him as Crl.R.P..No.2131/03 Page numbers aforesaid. Accused 1 and 3 were found not guilty of the charges levelled against them and were acquitted of the said charges. Now accused No.2 has come up in revision challenging his conviction and sentence. 5. Heard counsel for the revision petitioner and the Public Prosecutor. 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioner under Section 411 of IPC can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PWs 1 to 11 were examined and Exts. P1 to P10 (a) were marked on the side of the prosecution. Prosecution also produced MOs 1 to 3 . The case of the prosecution was that accused persons with the common intention of committing theft broke upon the Almira of Govt. High School, Pullankode and committed theft of tape recorder MO1 Crl.R.P..No.2131/03 Page numbers and switch board MO2 and that thereby committed the offences punishable under Sections 457, 380 and 461 r/w 34 of IPC. 8. PW1 is a teacher of Govt. High School, Pullankode who is an attestor to Ext.P1 scene mahazar. PW2 is the Peon of the school. PW3 is a teacher in the school who identified MOs 1 and 2, the tape recorder and switch board which were stolen from the school. PW8 is the Deputy Head Mistress who has also identified MOs 1 and 2 . The evidence of PWs 1 to 3 proves the theft of MOs 1 and 2 from the school and the breaking open of the Almirah and the locks. PW9 is the ASI who registered the case and started investigation. Ext.P1 scene mahazar was prepared by him. PW10 is the Sub Inspector who arrested the first accused in the night of January 30, 1998 at Kalikavu junction and that on questioning , he came to know about accused 2 and 3 and recovery of MO1 tape recorder on the basis of information given by second accused and also recovery of MO2 on the basis of information given by the third accused. PWs 4 and 6 are attestors to Ext.P2, the recovery mahazar of the tape recorder . PW6 is another attestor to Ext.P2 who did not support the prosecution. PW7 is the Crl.R.P..No.2131/03 Page numbers attestor to Ext.P4. 9. The lower court has found that there is no evidence to show that it was the first accused who committed theft in the school . The lower appellate court also found that recovery of MO2 switch board is not proved and therefore acquitted accused 1 and 3. As regards the second accused is concerned, the trial court found that recovery of MO1 from the house of the aunt of the second accused was proved and therefore convicted him under Section 411 of IPC i.e. for receiving the stolen property knowing it to be stolen. 10. The main question is whether recovery of MO1 tape recorder from the house of the aunt of the second accused is proved or not. PW10 , the S.I. of Police, who has recovered MO1 testified that second accused has told him that MO1 was kept in the house of his aunt. Ext.P9(a) is the statement of third accused . PW6 has proved the recovery of the same from the house of the aunt of second accused . Therefore, the lower appellate court is perfectly justified in accepting the evidence of prosecution that MO1 tape recorder was recovered from the house of the aunt of second accused on the basis of the Crl.R.P..No.2131/03 Page numbers information given by him. That being so, conviction of the second accused under Section 411 of IPC has to be confirmed and I do so. Point No.2 11. As regards the sentence, the lower appellate court has imposed a sentence of rigorous imprisonment for one year. Taking into consideration the fact that the incident happened in 1996 and that the value of the tape recorder allegedly stolen was about Rs.1,000/- and that as second accused is now employed abroad, I feel that a fine of Rs. 5000/- would meet the ends of justice. In the result, revision petition is allowed in part. Conviction of the revision petitioner under Section 411 of IPC is confirmed. The sentence is modified to the effect that he is sentenced to pay a fine of Rs. 5000/- , in default to undergo simple imprisonment for three months. One month's time is granted for payment of fine. His bail bonds are cancelled. P.Q.BARKATH ALI JUDGE sv. Crl.R.P..No.2131/03 Page numbers