IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 Crl.Rev.Pet.No. 3917 of 2008(D) ------------------------------- CRA.137/2007 of ADDL.DISTRICT COURT (ADHOC)II, THODUPUZHA. CC.554/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONER(S): PETITIONER ------------------------------- RATHEESH, C.NO.5906, CENTRAL JAIL, VIYYUR. BY ADV. SRI.PRAVEEN K. JOY(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3917 OF 2008 =========================== Dated this the 8th day of January,2009 ORDER Revision petitioner is the accused in C.C.554/2006 on the file of Judicial First Class Magistrate, Adimaly. He was convicted and sentenced for the offence under section 454,461 and 380 IPC. The conviction and sentence was challenged before Sessions Court, Thodupuzha by the revision petitioner from prison. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. Revision is filed from jail challenging the conviction. 2. Advocate Sri.Praveen K. Joy was appointed as State Brief to argue the revision. 3. Learned counsel and the learned Public Prosecutor were heard. 4. Learned counsel appearing for revision petitioner relying on the evidence of PW2 and its CRRP 3917/2008 2 inconsistency with the evidence of PW1 argued that according to PW2, PW1 was in his shop at 2.30 p.m and he proceeded to the police station only after 3-30 p.m and therefore Ext.P1 First Information Statement allegedly recorded at 2.30 p.m could have been created only later, after the arrest of the revision petitioner from the premises of a Church as involved in another crime. Learned counsel argued that though PW4 the Sub Inspector of Police of Vellathuval Police Station deposed that after arresting the revision petitioner from the place where he was detained by the public, revision petitioner made a confession statement with regard to the theft of the money from the shop of PW1, no such confession statement was produced and the money allegedly recovered from the petitioner which was allegedly stolen from the shop of PW1 was not produced to prove that they are of the denomination stated by PW1 in Ext.P1 statement and therefore courts below should not have convicted the revision petitioner. Learned counsel also argued that from CRRP 3917/2008 3 the evidence of PW1 it is clear that he could not identify the person and therefore identity of the revision petitioner as the person who committed the theft from the shop of PW1 is not established and therefore the conviction is not sustainable. 5. Learned Public Prosecutor pointed out that Ext.P1 First Information Statement was recorded within one hour from the time of the theft and PW4 reached the Church premises, where revision petitioner was detained, only 4.30 p.m and it is in respect of a theft of a mobile phone, revision petitioner was detained there and after arresting revision petitioner and questioning him, on the information gathered from the revision petitioner PW4 realised that revision petitioner committed an offence within the jurisdiction of Rajakkadu police station and there is no reason to suspect the genuineness of Ext.P1 First Information Statement or the evidence of PW1 especially when PW2 has no case that he accompanied PW1 to the police station. It was argued that revision petitioner was CRRP 3917/2008 4 apprehended within three hours of committing theft and in such circumstance there is no reason to interfere with the conviction or the sentence. 6. Ext.P1 First Information Statement of PW1 was recorded by the Sub Inspector of Police at 2.30 p.m. On 19.9.2006. It reached the court as evidenced by the endorsement by the Magistrate on 20.9.2006 and I find no reason to suspect the genuineness of Ext.P1 First Information Statement in the light of the evidence of PW1. Evidence of PW1 corroborated by his version in Ext.P1 establish that while PW1 was standing in front of his shop winnowing the onion revision petitioner came in a motor cycle and parked the motor cycle on the side of the road and proceeded towards the shop of PW1. As PW1 was not apprehending any mischief by the revision petitioner, he did not take special care on the revision petitioner. After completing the work when PW1 moved towards his shop, revision petitioner was found running from the shop of PW1 and got into the motorbike and escaped from the CRRP 3917/2008 5 scene. PW1 found that Rs.1600/- which was kept in the drawer of his table was missing. That version of PW1 is fully corroborated by the version in Ext.P1 First Information Statement. Though PW2 is not a witness to the occurrence, PW2 deposed that when he returned back the incident was disclosed to him and later getting information that the culprit was detained by the police at the Station he had gone there. Though learned counsel argued that as per the evidence of PW2, PW1 was there in his shop at 2.30 p.m and PW1 proceeded to the police station only after 3.30 p.m, when PW2 has no case that he accompanied PW1 to the police station, the discrepancy pointed out is not fatal and based on the discrepancy evidence of PW1 cannot be disbelieved. 7. The evidence of PW4, corroborated by Ext.P3 mahazar and Ext.P4 First Information Report establish that revision petitioner was detained by the public as he committed theft of mobile phone and getting information PW4 reached there at about CRRP 3917/2008 6 4.30 p.m and seized Rs.600/- from the revision petitioner apart from mobile phone and arrested and questioned him. It is on such questioning PW4 got the information that revision petitioner committed an offence at Rajakkadu and he prepared Ext.P4 First Information Report and forwarded the case to Rajakkadu Police Station and sent Ext.P5 report to the court. On the evidence, I find no reason to interfere with the findings of courts below that it was the revision petitioner who committed theft of the money kept by PW1 in the drawer of his table at his shop. Identity of PW1 is also established by the evidence of PW4. Conviction of the revision petitioner for the offences under section 454,461 IPC is perfectly legal. 8. Then the only question is regarding the sentence. Revision petitioner was sentenced to rigorous imprisonment for a period of two years in addition to a fine of Rs.2000/- for the offence under section 454 IPC and rigorous imprisonment for CRRP 3917/2008 7 a period of one year for the offence under section 461IPC and rigorous imprisonment for two years in addition to a fine of Rs.2000/- for the offence under section 380 IPC. Sentences were directed to run concurrently. The maximum substantive sentence awarded is two years. In such circumstance, I find no reason to interfere with the sentence also. Revision is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006