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. 34 of 2008() ---------------------------- CRA.211/2006 of I ADDL. SESSIONS COURT, PALAKKAD CC.292/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER: ------------------ KUMARAN @ VIJAYAN, C.NO.2846, CENTRAL PRISON, KANNUR. BY ADV. ADV.G.G.MANOJ (STATE BRIEF) RESPONDENTS: ------------- STATE OF KERALA BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON 10/07/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. ````````````````` Crl. R.P. NO. 34 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 accused in C.C. No.292 of 2005 on the file of the J.F.C.M. , Mannarkkadu for offences punishable under Sections 457, 380 and 461 I.P.C. 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: On 18-11-2004 at 12 midnight the accused gained entry into the house of P.W.2 bearing building No. XI/340 at Karinkallathani in Cherthelloor Village by removing the roofing tiles and committed theft of a binoculars worth Rs. 2,000/- and a ladies watch worth Rs. 250/- from the almirah. The accused has thereby committed offences punishable under Sections 457, 380 and 461 I.P.C. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as P.Ws 1 to 5 Crl. R.P. NO. 34 OF 2008 -:2:- and got marked 7 documents as Exts. P1 to P7 and a binoculars as MO1. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 23-12-2005 found the revision petitioner guilty of the offences and sentenced him to simple imprisonment for two years and to pay a fine of Rs. 3,000/- under Sections 457 and 380 I.P.C. each and also to simple imprisonment for one year under Sec. 461 I.P.C. The substantive sentences were directed to run concurrently. On appeal preferred by the revision petitioner before the Sessions Court, Palakkad, the learned I Addl. Sessions Judge as per judgment dated 29-6-2007 disposed of the appeal setting aside the conviction under Sections 457, 380 and 461 I.P.C. but instead convicted the appellant under Sec. 411 I.P.C. and sentenced him to rigorous imprisonment for two years and to pay fine of Rs. 4,000/- and on default to pay the fine to suffer simple imprisonment for six months. Hence this revision. Crl. R.P. NO. 34 OF 2008 -:3:- 6. I heard Adv. Sri. G.G. Manoj, the learned counsel appearing for the revision petitioner on State Brief and Adv. Sri. C.M. Nazar, the learned Public Prosecutor. 7. P.W2 is the person from whose house the articles were stolen. She deposed that she had left for her mother's house after locking the house and when she returned she found her house burgled, a binoculars and a ladies watch, a gold chain, a gold stud and a purse containing Rs. 600/- were found missing from her house. She identified MO1 binoculars from the Court. P.W.1 was the Sub Inspector of Police who arrested the accused during the early hours of 12-8-2005 under suspicious circumstances. He registered an FIR under Sec. 41(1)(b) Cr.P.C. On interrogation the revision petitioner confessed that he had kept the binoculars in his house at Thazhekode and if he is taken there he shall show the binoculars. Ext.P1 is the relevant portion of the confession statement of the accused. Pursuant to the said confession MO1 binoculars was seized as per Ext.P2 seizure mahazar. P.W.2 identified MO1 binoculars as the one which was stolen from her house. Eventhough the independent witnesses to Ext.P2 seizure mahazar pertaining to the binoculars could not be examined as their presence could not be secured even after coercive steps, the testimony of P.W.1 was credible enough to inspire Crl. R.P. NO. 34 OF 2008 -:4:- confidence in the court. From the recovery of the binoculars from the accused it was quite legitimate on the part of the Magistrate in presuming the revision petitioner to be the thief in view of Sec. 114 of the Evidence Act. However, the lower appellate court has altered the conviction to Sec. 411 I.P.C. by concluding that from the recovery of MO1 binoculars from the possession of the accused the only inference possible is that he was a recipient of stolen property. 8. Eventhough the learned counsel appearing for the revision petitioner assailed on various 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, in the absence of an appeal by the State. 9. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the fact that the petitioner is involved in three other crimes namely Crime Nos. 147 of 2005 and 48 of 1997 of Nattukal Police Station for similar offences and Crime No. 622 of 2005 of Mannarkkadu Police Station for similar offences, I do not think that the sentence imposed on the petitioner is excessive or Crl. R.P. NO. 34 OF 2008 -:5:- disproportionately harsh. I am also not inclined to give concurrency of the sentence imposed in this case with those in the other cases under Sec. 427 Cr.P.C. by applying the ratio in Ammavasal and Anr. v. Sub Inspector of Police, Valliyannoor - AIR 2000 SC 3544 and Mohd. Akhtar Hussain v. Assistant Collector of Customs - AIR 1988 SC 2147 the sentence imposed on the revision petitioner is confirmed. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. V.Ramkumar, Judge. ani. Crl. R.P. NO. 34 OF 2008 -:6:- V. RAMKUMAR, J. ````````````````` Crl. R.P. NO. 34 OF 2008 ````````````````` Dated: 10-07-2008 O R D E R