IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 2458 of 2009() ------------------------------ CRA.263/2007 of ADDL.SESSIONS COURT, (ADHOC), FAST TRACK -II, MANJERI CC.603/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- ABDUREHIMAN,S/O.MOHAMMED, AGED 23 YEARS, VALLIKKAPPARAMBIL HOUSE, NARIYAKKAM POYIL, THUVOOR DESOM, MALAPPURAM DIST. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S)/RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2458 of 2009 -------------------------------------- Dated this the 31st day of July, 2009. ORDER Petitioner faced trial in the court of learned Judicial Magistrate of First Class-I, Manjeri in C.C.No.603 of 2006 for offence punishable under Section 380 read with Section 34 of the Indian Penal Code (for short, “the Code”). Charge is that some time between 30.3.2006 and 31.3.2006 petitioner along with a juvenile and in furtherance of their common committed theft of 40 rubber sheets weighting 100 kgs from the smoke house of PW1. It is contended that conviction of the petitioner is not legal or proper. 2. Prosecution examined PWs 1 to 7 and proved Exts.P1 to P4 and MO1. PW1 has given evidence regarding the theft as stated above. He learnt about the theft only on the early morning on 31.3.2006 and the same day gave Ext.P1, statement to the police regarding the incident. PW7, Sub Inspector registered the case and investigated. PW7 claimed that on 6.7.2006 he arrested petitioner and the juvenile in connection with Crime No.99 of 2006 of his station and when they were questioned information regarding the incident on hand was given. PW7 registered case against the petitioner and juvenile. When questioned, petitioner told him that the rubber sheets are sold in a shop and if taken there, he will show the shop and person concerned. As led by the petitioner PW7 reached the shop of PW3 and seized the rubber sheets. Crl.R.P.No.2458/2009 2 Ext.P3 is the mahazar for seizure. PW3 who is a dealer in rubber has given evidence that petitioner and another person came to his shop in a maruthi car and sold about 100 kgs of rubber sheets on 31.3.2006. Those rubber sheets bore identification mark 'ATH'. Later police brought petitioner to his shop. He produced a few of the rubber sheets (MO1 series) which the police took to custody. PW5 is an attestor in Ext.P3, the mahazar supported prosecution. PW1 identified MO1 series as some of the rubber sheets stolen from his smoke house. PW4 is the owner of maruthi car. He stated that petitioner used to take his car on rent. PW4 produced the car before the police and the police seized it as per Ext.P4, mahazar. PW4 is an attestor in Ext.P4. PW7 has given evidence regarding the arrest of petitioner and seizure as per Ext.P3. Place of occurrence is pointed out to PW7 by the petitioner based on which he prepared Ext.P2, scene mahazar. 3. There is evidence to show that petitioner is involved in the theft of MO1 series, rubber sheets. Evidence of PW3 shows that petitioner had sold the same to him. It is based on the above evidence that petitioner was convicted for offence punishable under Section 380 read with Section 34 of the Code. On going through the judgments under challenge and hearing learned counsel for petitioner and Public Prosecutor I do not find reason to interfere with the conviction of petitioner. Crl.R.P.No.2458/2009 3 4. Learned magistrate sentenced the petitioner to undergo rigorous imprisonment for six months and to pay Rs.5,000/- as fine failing which he has to undergo simple imprisonment for three months. It is directed that out of the fine if realised Rs.3,000/- will be given to PW1 and Rs.1,000/-, to PW3 as compensation. Appellate court did not interfere with the sentence. Having regard to the facts and circumstances of the case I am satisfied that the substantive sentence awarded to the petitioner can be modified as rigorous imprisonment for four (4) months. There is no reason to interfere with the sentence of fine and the direction for payment of compensation. Resultantly, this revision petition is allowed in part to the extent that the substantive sentence awarded to the petitioner is modified as rigorous imprisonment for four (4) months. It is directed that petitioner will get the benefit of set of against the detention if any undergone in this case. In all other respects this revision petition will stand dismissed. THOMAS P.JOSEPH, Judge. cks