IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 Crl.Rev.Pet.No. 2286 of 2010() ------------------------------ CRA.132/2010 of SESSIONS COURT, THODUPUZHA CC.171/2009 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER: PETITIONER/ACCUSED NO.2 -------------------------------------------- NAZEER, @ UNNIYAPPAN NAZEER, S/O.BASHEER, MALAYAPARAMBIL HOUSE, KUMMAMKALLUKARA, KARIKKODE VILLAGE, THODUPUZHA, IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASIA RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA - THROUGH SUB INSPECTOR OF POLICE, THODUPUZHA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No.2286 OF 2010 ---------------------------------------- Dated 14th Day of October, 2010 ORDER The revision petitioner herein is the 2nd accused in C.C.No.171/2009 of the Court of the Chief Judicial Magistrate, Muttom, Thodupuzha. 2. The learned Magistrate by the impugned judgment found that the accused, three in number including the revision petitioner herein, are guilty under section 379 read with Section 34 of IPC and they are sentenced to undergo rigorous imprisonment for a period of one year under section 379 read with Sec.34 of IPC. Though an appeal was filed against the above conviction and sentence, by judgment dated 8.7.2010 in Crl.A.No.132/2010, the Court of Sessions Judge, Thodupuzha, dismissed the appeal confirming the conviction and sentence. Hence this revision Petition. 3. The prosecution case is that on 23.8.2009 at 1.45. p.m., the accused, three in number, in furtherance of their common intention and common object to CRRP 2286/10 :-2-: commit theft and robbery, came into the ticket counter of New Theatre, Thodupuzha, and the accused snatched away a purse of the de facto complainant after forcefully pushed him down and pressed him on the wall of the theatre and twisted him. According to the prosecution, the accused persons snatched away the money purse containing Rs.2125/- and 5 lottery tickets. It is also the case of the prosecution that the accused caused hurt to the complainant while committing the robbery. 4. Thus, on the basis of Ext.P1 F.I.Statement lodged by PW2, the de facto complainant, PW6 prepared Ext.P5 FIR in crime No.1267/2009 of Thopdupuzha police station. PW2 has also identified M.O.1 series of lottery tickets and Ext.P4 recovery mahazar for the currency notes. PW1 is the manager of Kalarickal Lodge, Thodupuzha. According to PW1, the first accused was a lodger in his lodge on the date of the incident. PW3 is an attestor to Ext.P2 scene mahazzar. PW4 is the manager of New Theatre, Thodupuzha. The prosecution examined him as occurrence witness. PW5 is also an attester to Ext.P3 recovery CRRP 2286/10 :-3-: mahazar of register of the lodge and Ext.P4 mahazar for the seizure of currency notes. PW6 is the Investigating Officer. All the witnesses of the prosecution, when examined, supported the case of the prosecution. Though PW4, the manager of the New theatre was cited as an occurrence witness, when he was examined, it is stated that he did not see the entire incident but he had seen the accused escaping from the place of occurrence after the incident. 5. The learned counsel for the petitioner, vehemently argued that the prosecution has miserably failed to establish the identity of the accused and, absolutely, there is no evidence to connect the revision petitioner with the alleged incident. In order to substantiate the above point, the learned counsel submitted that PW2, the de facto complainant, who identified the accused in the court has no previous acquaintance with the accused. According to the learned counsel, Ext.P1 F.I.Statement was lodged at about 6 p.m. on the same date of the incident. The learned counsel submitted that after lodging Ext.P1 CRRP 2286/10 :-4-: FI Statement and the registration of crime, according to PW6, the photographs of the revision petitioner was shown to PW2 and thereafter arrested the accused at 9.30 p.m from Thodupuzha, on the same day. According to the counsel, the above version is doubtful. It is also the submission of the learned counsel that though PW4 was examined to prove the incident and to prove the identity of the accused, PW4 has miserably failed to state anything regarding the identity of the accused and according to the learned counsel, PW4 has stated that he had seen the accused while running away from the place of occurrence. Thus, according to the learned counsel, the identity of the accused is not established. The next point raised by the learned counsel is that absolutely there is no evidence or materials to connect the revision petitioner with the alleged incident. As pointed out earlier, according to the learned counsel, the prosecution has miserably failed to establish the identity of the accused and besides the above defect, according to the learned counsel, there is a serious lapse on the part of the prosecution to produce any piece CRRP 2286/10 :-5-: of paper to show that MO1 lottery tickets were recovered from the possession of the revision petitioner. Thus, according to the learned counsel, in the absence of any contemporary document to show that M.O1 lottery tickets were recovered from the possession of the revision petitioner, the petitioner cannot be convicted in any manner. Therefore the learned counsel submitted that the revision petitioner is entitled to get a clear acquittal and the trial court as well as the lower appellate court has miserably failed to consider the above factual points. 6. On the other hand, the learned Public Prosecutor submitted that the revision petitioner is involved in six more criminal cases and the documents produced by the prosecution would show the role of the revision petitioner in the commission of the offence. It is also the submission of the learned Public Prosecutor that PWs 2 and 4 have properly identified the revision petitioner. It is relevant to note that apart from establishing the identity of the accused, the prosecution has also produced Ext.P4 recovery mahazar with respect to the recovery of currency notes. CRRP 2286/10 :-6-: Thus According to the learned Public Prosecutor, as the revision petitioner has involved in several criminal cases, the courts below are perfectly legal, in rejecting the defence raised by the accused in the findings in favour of the prosecution and against the revision petitioner. 7. I have carefully considered the arguments advanced by both the counsel for the revision petitioner as well as the Public Prosecutor and also perused the judgments of the courts below. I have gone through the evidence and materials on record. 8. At the outset, it has to be noted that the prosecution allegation is that the accused three in number after creating a seen of occurrence by pushing and fisting PW2, a money purse was snatched from the possession of PW2 and ran away from the spot. Thus, According to the prosecution, the accused has committed the offence under section 394 of IPC. But the trial court found that the prosecution has made out only an offence under section 379 of IPC. 9. The arguments advanced by the counsel for the CRRP 2286/10 :-7-: revision petitioner has to be examined in the above factual premises. As rightly pointed out by the learned Public Prosecutor, the revision petitioner is involved in six other similar criminal cases which would show that he is a habitual offender and that is why, along with other offenders his photographs also exhibited in the police station. The victim of this nature of offences, need not have prior acquaintance with a person like the present revision petitioner and other accused. So there is no possibility for prior acquaintance for PW2 with this revision petitioner. But when the accused was arrested, he was identified by PW2 in the police station and subsequently during the trial of the case, PW2 has categorically identified the accused as the person one among the three accused in the commission of the offence. In the light of the facts and circumstances involved in the case, the identification of the revision petitioner by PW2 alone is sufficient to canvas his conviction. Moreover, the recovery of lottery tickets and currency notes, which are belonging to PW2, also CRRP 2286/10 :-8-: render assurance of the prosecution case regarding the involvement of the revision petitioner in the crime. PW4 has also stated regarding the incident that taken place in his theatre on 23.8.2009. But he had stated that he had not witnessed the entire incident but he had seen only the last part of the incident during which the accused had run away from the spot. In the light of the above facts, I am of the view that the concurrent findings of the trial court as well as the appellate court regarding the role of the revision petitioner in the commission of the offence requires no interference and therefore, the conviction recorded by the courts below is only to be approved and I do so. 10. Regarding the sentence, the learned counsel submitted that he is the only son of his aged mother who is now at the age of 60 years and hence a lenient view may be taken. 11. Having regard to the facts and circumstances involved in this case, I am of the view that the sentence of imprisonment ordered by the courts below can be modified CRRP 2286/10 :-9-: and six months imprisonment will be sufficient to meet the ends of justice and therefore, the sentence of imprisonment ordered by the courts below is reduced to six months imprisonment. The petitioner is entitled to get set off under section 428 of Cr.P.C. In the result, subject to the above modification with respect to the sentence and confirming the conviction of the revision petitioner under section 379 of IPC, this Crl.R.P. is dismissed. V.K.MOHANAN, JUDGE kvm/-