IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2571 of 2009() ------------------------------ CRA.412/2007 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.604/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------- ABDUREHIMAN,S/O. MOHAMMED, AGED 23 YEARS VALLIKKAPARAMBIL HOUSE, NARIYAKKAM POYIL, THUVOOR DESOM, MALAPPURAM DISTRICT BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT/ RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2571 of 2009 --------------------------------------- Dated this 10th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Session Judge, Fast Track No-3, Manjeri in S.T.No.412 of 2007 confirming conviction and sentence of petitioner for offences punishable under sections 457 and 380 r/w section 34 of the Penal Code. Case is that on 23/06/2006 at about 3 a.m petitioner along with a juvenile committed lurking house trespass in the shop of PW1 by breaking the lock of its shutter and dishonestly removed 230kgs of rubber sheets worth Rs.22800/-. PW1, owner of the shop has given evidence that the lock of its shutter was seen broken on 23-06-2006 at about 7 a.m. He stated that 230kgs of rubber sheets bearing the mark “nkb” were stolen from his shop the previous night. Ext.P1 is his complaint to the police regarding the incident. He identified one of the rubber sheets stolen as MO1. He claimed that the rest of the rubber sheets were released to him from the court. Ext.P2 series are photographs of those rubber sheets. PW3 claimed that he had sold 118kgs of rubber sheets bearing his mark “nkb” to PW1 on 26-06-2006. He also identified MO1 as one among those rubber sheets. PW4 claimed that while he was returning after seeing World Cup Football in the television at the house of his friend on 26-06-2006 at about 3 a.m he saw a maruti car bearing No. TN-09C/2927 in front of Crl.R.P.No.2571 of 2009 2 the shop of PW1. The next day he learnt about the theft and informed the matter to PW1. PW5 claimed that he saw the sub Inspector arresting petitioner while petitioner and another were riding a motor cycle. That motor cycle was seized as per Ext.P2, mahazar. PW6 is the proprietor of a shop dealing in rubber sheets. He purchased rubber sheets from petitioner. On 06-07-2006 police came with petitioner and he produced those rubber sheets to the police. MO1 is one of those rubber sheets. He claimed that petitioner had sold 230kgs of rubber sheets to him about fifteen days prior to the police seizing the same on 06-06-2006. PW7, employee in the shop of PW6 attested the mahazar for seizure of the rubber sheets and gave evidence regarding the seizure. PW8, owner of maruti car stated that petitioner used to take his car on daily rent of Rs.500/-. On 22-06-2006 petitioner had taken it on rent. The car was returned to him on the night of 23-06-2006. He claimed that petitioner paid Rs.1000/- by way of rent. PW8 attested the mahazar for seizure of the maruti car on 17-07-2006. PW9 is the attestor in Ext.P6, mahazar for seizure of MO3, the iron rod on the information given by petitioner. PW10 is an attestor in the mahazar for seizure of MO2 series. PW11, head constable and PW13, sub Inspector agave evidence regarding the investigation, arrest of petitioner and seizure of material objects on the information given by petitioner. It is contended by learned counsel that involvement of petitioner in the Crl.R.P.No.2571 of 2009 3 alleged incident is not proved beyond reasonable doubt. It is contended that alleged seizure of maruti car as per Ext.P8 was on 17-07-2006, according to the prosecution it was based on the evidence of PW4 that he had seen that maruti car in front of the shop of PW1 on 23-06-2006 at about 3 a.m that the involvement of petitioner was suspected but evidence of PWs.11 to 13 is that petitioner was arrested on 06-07-2006. 2. It is not as if the case is charged against petitioner only on the strength of seizure of the car as per Ext.P8 on 17-07-2006 or the evidence of PW4 that he saw the car in front of shop of PW1 at the relevant time. The user of the car by the petitioner at the relevant time and it being seen in front of the locked shop at the relevant time is proved. There is also evidence of PW.6 that petitioner had sold the rubber sheets to him about fifteen days before 06-07-2006. There is sufficient evidence on record to show that the rubber sheets which were stolen from the shop of PW1 were found in the possession of petitioner soon after the incident. I have referred to the evidence of prosecution witnesses which the courts below have accepted. On going through the judgments under challenge and hearing learned counsel I find reason to differ from the finding of the courts below that the petitioner was found in recent possession of stolen article. There is also the seizure of MO3, iron rod as per Ext.P6 on the information given Crl.R.P.No.2571 of 2009 4 by petitioner. From the above evidence and circumstances, the courts below came to the conclusion that petitioner committed lurking house trespass and theft. There is no reason to differ. 3. So far as sentence is concerned learned counsel submitted that petitioner has already undergone imprisonment in this case for a period of 126 days. It is true that petitioner is involved in a few other cases also but learned counsel submits that petitioner is now leading a crime free life. I am inclined to think that the sentence awarded to the petitioner can be modified as simple imprisonment for four months each while retaining the sentence of fine. Resultantly this revision is allowed in part to the extent that while retaining the sentence of fine and default sentence, the substantive sentence awarded to the petitioner is modified on both counts as simple imprisonment for four months each, to run concurrently. Petitioner will get the benefit of set off as against the detention/imprisonment undergone in this case. THOMAS P JOSEPH, JUDGE Sbna/