IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 1833 of 2009 ------------------------------ CRA.307/2007 of ADDL.SESSIONS COURT, THODUPUZHA CC.374/2006 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER/APPELLANT/FIRST ACCUSED: -------------------------------------------- SAITHU MUHAMMADU, S/O.KONTHALAM, MALEPPARAMBIL VEEDU, KUMMAMKALLU KARA, KARIKODE VILLAGE, THODUPUZHA. BY ADV. SRI.T.J.MICHAEL RESPONDENT/RESPONDENT: ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1833 of 2009 --------------------------------------- Dated this 06th day of July 2009 ORDER Petitioner along with accused No.2 faced trial in the court of learned Chief Judicial Magistrate, Thodupuzha in C.C.No.374 of 2006 for offences punishable under Secs.457 and 380 r/w Sec.34 of the Penal Code (for short, “the Code). Case is that on 20-03-06 at about 1 a.m they, in furtherance of their common intention committed lurking house trespass in the smoke house of PW1 and theft 52kgs of rubbersheets. Learned Chief Judicial Magistrate found petitioner guilty under Sec.457 and 380 of the Code. Accused No. 2 was found guilty of offence under Sec.411 of the code. Conviction and sentence of petitioner were confirmed by learned Additional Sessions Judge. Hence this revision. 2. PW1 claimed that rubbersheets were kept in his smoke house on the previous day of the incident. On 20-03-06 morning he found the latch of the outer door of the smoke house bent and on examination he found that rubbersheets were stolen. He Crl.R.P.No.1833 2 complained to the police and gave information (Ext.P1) at 10.30 a.m. After about 11.30 a.m he got a telephone call from PW2, a merchant dealing in rubbersheets at Meenmutty asking whether he had lost rubbersheets. He answered in the affirmation and reached the shop of PW2 were he found the petitioner. He identified the stolen rubbersheets with the aid of the mark 'PKG' denoting his name and initial. Petitioner then told him that he should be pardoned, and requested PW1 not to go for any case as that would cause trouble and inconvenience for himself and PW1. In the meantime police was informed. Police came there and seized the rubbersheets. Petitioner was taken to custody . According to PW1, MO1 series are a few of those rubbersheets, the rest having been released to him from the trial court. PW2 stated that on 21-03-06 accused No.2 brought the rubbersheets bearing the mark PKG to his shop in an autorikshaw at about 11.30 a.m, he asked accused no.2 wherefrom those rubbersheets where, accused no.2 was not able to give a ready answer and was seen perplexed. PW2 Crl.R.P.No.1833 3 repeated the question. Then accused No.2 stated name of the person who had sent him with the rubbersheets. As instructed by PW2, accused No.2 went from the shop and came back with the petitioner and pointed out him as owner of the rubbersheets. PW2 questioned the petitioner about the mark seen on the rubbersheets. Then, petitioner told him that he had taken the rubbersheets from the smoke house of a doctor of Muthalakodam (PW1 is a doctor staying at that place). PW2 immediately intimated the matter to PW1 through telephone who reached there and identified the rubbersheets. PW3 claimed to have been present in the shop of PW2 during the relevant time and gave similar evidence. PW.6, Sub insepector registered the case. Getting information that petitioner is detained in the shop of PW2 he went over there and seized the rubbersheets as per Ext.P2, mahazar. He arrested the petitioner at the spot. The vehicle which was used for transporting the rubbersheets to the shop of PW2 was seized as Ext.P4 mahazar. 3. It is argued by learned counsel that extra judicial Crl.R.P.No.1833 4 confession said to be made by petitioner is not acceptable in evidence. According to learned counsel, investigating agency was not sure about the truth of the case as is evident from the fact that accused No.2 was not charged for offences punishable under Sec.457 and 380 but was charged only for under Sec.411 of the Code. 4. That, investigating agency charged accused No.2 only under Sec.411 of the Code does not mean that petitioner had not committed offences under Secs.457 and 380 of the Code. Courts below have considered the evidence of PWs 1 to 3 and PW6. Evidence of PWs.1 to 3 show that accused No.2 had stated the name of petitioner as the person who had entrusted the rubbersheets with him and therefore brought petitioner to the shop of PW2. In the presence of PWs.1 to 3 petitioner stated about he being the person who was in possession of the rubbersheets. He also told PW2 in the presence of PW3 about his taking the rubbersheets from the smoke house of a doctor at Muthalakodam Crl.R.P.No.1833 5 (PW1). I do not find reason to disbelieve the evidence of PWs.1 to 3 and PW6. It is proved by evidence that petitioner had taken the rubbersheets from the smoke house of PW1. Ext.P3, the mahazar shows that the latch on the door of the smoke house was bent which indicated that smoke house was opened using force. Thus it is clear that the culprit made forceable entry into the smoke house of PW1 during the night of 20-03-06 and removed the rubbersheets. There is little reason to interfere with conviction of petitioner. 5. Learned Chief Judicial Magistrate sentenced the petitioner to undergo rigorous imprisonment for two years under Sec.457 and rigorous imprisonment for one year under Sec.380 of the Code. It was directed that sentence will run concurrently and that petitioner will get the benefit of set off . It is not shown that petitioner is involved in any other case. He was aged 61 years in 2007. Considering these circumstances I am satisfied that simple imprisonment for a period of six months each is sufficient in the Crl.R.P.No.1833 6 ends of justice. Sentence is modified accordingly. Resultantly this revision is allowed in part to the following extent. Sentence imposed on the petitioner for offences punishable under Sec. 457 and 380 of the Code is modified as simple imprisonment for six (6) months each. The sentences shall run concurrently. Needless to say the petitioner will get the benefit of set off if he is otherwise entitled to. In other respects this revision will stand dismissed. THOMAS P JOSEPH, JUDGE Sbna/