IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Crl.Rev.Pet.No. 2778 of 2008() ------------------------------ CRIMINAL (JAIL)APPEAL.No.245/2008 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM .................... REVN. PETITIONER: ACCUSED NO.III: ------------------------------------ PRASAD, C.NO.6733,CENTRAL PRISONS,VIYYUR BY ADV. PREMCHAND R NAIR (STATE BRIEF) RESPONDENT: COMPLAINANT -------------------------- THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.2778 of 2008 ---------------------------------------- Dated this the 9th day of September, 2009 ORDER The revision petitioner along with 2 others were found guilty for offence under sections 457, 380, 461 read with section 34 and 411 I.P.C. by the Judicial Magistrate of the First Class-II, Aluva in C.C.No.857/2003 and was convicted and sentenced to undergo simple imprisonment for 2 ½ years each for offence U/s.457, 380 read with section 34 I.P.C. and to pay a fine amount of Rs.5,000/- each. The revision petitioner is the third accused. 2. Aggrieved by the above conviction and sentence Criminal (Jail) Appeal No.245/2008 was prefered before the Sessions Judge, Ernakulam which was made over to the Additional Sessions Judge (Adhoc-I), Ernakulam. The learned Additional Sessions Judge concurred with the findings of the trial court and the appeal was dismissed. Assailing the legality, propriety and correctness of the above conviction and sentence this revision petition was prefered by the revision petitioner from Crl.R.P.No.2778 of 2008 2 jail. State Brief was engaged to prosecute the revision petition. The learned counsel as well as the public prosecutor was heard. 3. In between 7.30p.m. on 19/4/2003 and 8.30am on 21/4/2003 theft occurred in a workshop with the name and style Delta Engineering Company run by PW1 whereby copper plates, motor cycle, etc were stolen. PW1, the proprietor filed Ext.P1, First Information Statement before the S.I. of Police, Kalamassery who registered a case as Crime No.137/03. The C.I of Police after investigation filed a charge sheet before the trial court. The learned magistrate, after due trial convicted and sentenced the revision petitioner as mentioned earlier. The complicity of the revision petition was found by the recovery of the motor cycle from the house of the revision petitioner on the basis of Ext.P4(a) statement given by him to the investigating officer. The revision petitioner could not account the possession of the stolen vehicle. He has no case that he obtained the same by any lawful means. The trial court believed the testimony of PW1 that the motor vehicle was kept locked in his workshop. He identified the vehicle. The courts below had believed the Crl.R.P.No.2778 of 2008 3 testimony of PW1 as well as the seizure of the vehicle from the house of the revision petitioner on 24-4-03 on the strength of Ext.P4(a) statement given by the revision petitioner. Illustration (a) to Section 114 of the Evidence Act canvasses a presumption that a person in possession of a stolen property, soon after the theft is either a thief or has received the stolen goods knowing them to be stolen, unless he can account for his possession. Here the theft is in between 19/4/03 and 21/4/03. The recovery is on 24/4/03. The revision petitioner couldn't give a satisfactory account for having custody of the motor cycle. In the above circumstance recovery of the stolen motor cycle establishes the complicity of the revision petitioner. I find no error, illegality or impropriety in the concurrent finding arrived by the courts below regrding the theft as well as the recovery of the motor cycle. Hence the conviction impugned is sustainable. 4. According to the learned counsel for the revision petitioner the sentence awarded is excessive. The judgment of the trial court would show that the appellant was a previous convict. He deserves no leniency. I find that the sentence Crl.R.P.No.2778 of 2008 4 awarded is just and moderate. It requires no interference. In the result the revision petition is devoid of merit and accordingly it is dismissed. P.S.GOPINATHAN, JUDGE skj.