IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 Crl.Rev.Pet.No. 2287 of 2008() ------------------------------ CRA.251/1999 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CC.234/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... REVN. PETITIONER: APPELLANT ------------------------------------------------------ BINU, AGED 38, S/O.THANKAPPAN, KIZHAKKEKARA PUTHEN VEEDU, KARUMCODE,VAYALIKADA, KODUNGANOOR WARD, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SHAJIN S.HAMEED RESPONDENTS: COMPLAINANT ---------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PEROORKADA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.2287 of 2008 =================== Dated: 10.07.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who is the 1st accused in C.C. No.234 of 1996 on the file of the J.F.C.M-II, Nedumangad for offences punishable under Sections 457, 380 and 201 read with 34 IPC challenges the conviction entered and the sentence passed against him for the aforementioned offences. 2. The case of the prosecution can be summarised as follows: The four accused persons in furtherance of their common intention to commit theft, broke open the lock of the gate of the house of PW1 bearing No.V.P.6/417 and committed theft of two motor cycles worth Rs.46,000/-. The number plate of one of the motor cycle was fraudulently altered. The accused has thereby committed offences punishable under Sections 457, 380 and 201 read with 34 IPC. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned Crl.R.P.No.2287/2008 -:2:- offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 witnesses as P.Ws 1 to 7 and got marked 5 documents as Exts. P1 to P5 and two motor cycles as MOs1 and 2. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 3.06.1999 found accused Nos.1 and 2 guilty of the offences punishable under Sections 457, 380 and 201 read with 34 I.P.C. The 4th accused was acquitted. For the conviction under sections 457, 380 and 201, accused Nos.1 to 3 were sentenced to undergo simple imprisonment for six months each. The substantive sentences were directed to run concurrently. On appeal preferred by the revision petitioner before the Sessions Court, the lower appellate court as per judgment dated 27.09.07 in Crl.Appeal No.251 of 1999, the Additional District and Sessions Judge, Fast Track Court-I, Thiruvananthapuram, Crl.R.P.No.2287/2008 -:3:- dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. The learned counsel for the petitioner submitted as follows:- The revision petitioner has been convicted on the sole testimony of PW2. While according to the prosecution the occurrence was on 29.10.95 and the two motor cycles were recovered by the Police (PW7) from Vellaikadavu river on 21.1.96. PW2 would depose that he went to Police Station on coming to know of the recovery of motor cycles on 29.1.96. If so, his testimony cannot be believed, particularly, when the revision petitioner was arrested only on 26.1.96. 7. I cannot agree with the above submissions. PW2 has correctly deposed before the court that in the very same night in which the two motor cycles were stolen, A1 to A3 had approached him seeking permission to park the vehicles in his compound stating that their petrol had exhausted and PW2 had permitted them to do so and they had taken away the vehicles on the next day. PW2 further stated that he had gone to the Police Station on 21.1.96 on coming to know about the recovery of the Crl.R.P.No.2287/2008 -:4:- motor cycles from Vellaikadavu river and had identified both the motor cycles from the Police Station. No doubt, he gave the date as 29.1.96 in his chief examination. However, it was in the cross-examination that the defence get the date corrected as 21.9.96 and PW2 deposed that the date mentioned in the chief examination was a mistake. 8. Eventhough the learned counsel appearing for the revision petitioner assailed on various other grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 9. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. The courts below have concurrently found that the revision petitioner along with A2 and A3 committed the offences. The sentence imposed on the revision petitioner also cannot be said to be harsh or disproportionately excessive. Having regard to the daring manner in which the Crl.R.P.No.2287/2008 -:5:- offence was committed and considering the fact that it was with a view to hide the booty that they made PW2 to believe that the petrol in their motor cycle had exhausted and sought permission to park the motor cycles in his compound, they were really throwing PW2 off the scent with a view to hide the daring offences committed by them during the dead of the night. Penal servitude by way of incarceration alone will serve as a disincentive to such daring offences. I do not find any good reason to interfere with the conviction entered and the sentence passed. Accordingly, this Crl.R.P is dismissed. Dated this the 10 th day of July, 2008. V.Ramkumar, Judge. sj