IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Crl.Rev.Pet.No. 3293 of 2008() ------------------------------ CRA.503/2005 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD CC.435/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... REVN. PETITIONER(S): APPELLANT/IST ACCUSED ------------------------------------------------------ PRAKASAN, S/O.GOPALAN, PALAKKAD VEEDU, KAITHACHIRA(PO),THATHENKALAM, MANNARKKAD, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT(S): COMPLAINANT/STATE --------------------------------------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3293 OF 2008 =========================== Dated this the 30th day of October,2008 ORDER Petitioner was convicted for the offence under section 379 of Indian Penal Code by Judicial First Class Magistrate, Ottapalam and sentenced to rigorous imprisonment for three years. Conviction was confirmed and sentence was modified to rigorous imprisonment for two years by Additional Sessions Judge, Palakkad in Crl.A.503/2005. Revision is filed challenging the conviction and sentence. 2. Prosecution case was that on 21.3.1999 at about 2 a.m in furtherance of the common intention petitioner and the second accused committed theft of autorikshaw KL8-A-2341 belonging to PW1 who had purchased it from PW7 the R.C owner while it was parked near the tea shop bearing V/257 of Shornur Muncipality and thereafter tampered the registration number and sold to PW4 who in turn CRRP No.3293/2008 2 sold to PW3 and PW3 entrusted the same to PW6 the owner of the workshop and thereby committed the offence under section 379 of Indian Penal Code. Both the accused pleaded not guilty. Prosecution examined 11 witnesses and marked Exts.P1 to P5 and identified M0s 1 and 2. Learned Magistrate on the evidence found the second accused not guilty and acquitted him. Petitioner was found guilty and convicted and sentenced for the offence under section 379 IPC. Petitioner challenged the conviction in Crl.A.503/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction but reduced the sentence. It is challenged in this revision. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. The argument of the learned counsel is that there is no evidence to prove that petitioner committed theft and when the second accused was acquitted and no recovery was effected from the possession of the petitioner, courts below were CRRP No.3293/2008 3 not justified in convicting the petitioner. It was also argued that petitioner is having a wife and a small child and is not involved in any other case and therefore leniency may be shown. Learned Public Prosecutor was directed to ascertain whether petitioner was involved in any other offence of this nature. Learned Public Prosecutor on getting instructions submitted that petitioner was not involved in any other offence. 5. Though learned counsel vehemently argued that there is no evidence to prove that petitioner committed the theft, evidence of PW1 establishes that he purchased M01 autorikshaw KL8-A-2341 from PW7 the R.C. Owner. The evidence of PW7 corroborates the evidence of PW1 that M01 autorikshaw belonged to PW7 was sold to PW1 for a value of Rs.35,000/-. The evidence of PW4 establish that he sold M01 autorikshaw to PW3 in May 1999 for Rs.5000/-. The evidence of PW4 also establish that PW4 got the autorikshaw from the petitioner. The evidence of PW3 establish that CRRP No.3293/2008 4 after purchasing the autorikshaw, PW3 entrusted the autorikshaw to PW6 for painting work. The evidence of PW6 owner of the workshop corroborates that evidence. Evidence of PW2 also prove that M01 autorikshaw was entrusted to him for painting from where PW11 the A.S.I seized the authorikshaw under Ext.P3 seizure mahazar. The evidence of PW5 the attesting witness to Ext.P3 seizure mahazar corroborates the evidence of PW1 with regard to the seizure. The learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that evidence of PW11 and PW5 and PW2 with Ext.P3 seizure mahazar establish that M01 was recovered under Ext.P3 on the basis of the information furnished by petitioner. Evidence of PW1 corroborated by PW7 establish that M01, recovered under Ext.P3, is the autorikshaw which was stolen from PW1. The evidence conclusively prove that M01 which was the stolen autorikshaw belonging to PW1 was recovered from PW2 on the basis of the information furnished CRRP No.3293/2008 5 by the petitioner and PW2 got the autorikshaw as entrusted to him by PW6 who in turn was entrusted the vehicle by PW3 who in turn had purchased from PW4. The evidence of PW4 establish that it was purchased by PW4 from the petitioner. In the light of this evidence, findings of the courts below that petitioner committed an offence under section 379 IPC is legal and is perfectly in order and warrants no interference. 6.Then the only question is with regard to the sentence. Section 379 of IPC provides for imprisonment which may extent to three years or fine or with both. The argument of the learned counsel is that as petitioner was not involved in any other offence and he was in custody during the investigation of the case, that period may be treated as substantive sentence and the sentence may be modified. As the prosecution has no case that petitioner has involved in any other offence, interest of justice will be met if the sentence is reduced to simple imprisonment for one month and a CRRP No.3293/2008 6 fine of Rs.5000/- and in default simple imprisonment for two months. Petitioner is also entitled to get set off under section 428 for the period he was in custody before conviction and after conviction if any. Criminal Revision is disposed of. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006