IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 2433 of 2009() ------------------------------ CRA.410/2007 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.605/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------- ABDUREHIMAN, S/O MOHAMMED, AGED 23 YEARS, VALLIKKAPARAMBIL HOUSE, NARIYAKKAM POYIL, THUVOOR DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR: SRI. C S HRITHWK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2433 of 2009 --------------------------------------- Dated this 04th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-3, Manjeri in criminal appeal No.410 of 2007 confirming conviction and sentence of petitioner for offence punishable under section 379 of the Penal Code (for short, “the Code”). Case is that petitioner along with a juvenile committed lurking house trespass in the smoke house of PW1 on 10-03-2006 at about 12 a.m and theft of 52 kgs of rubber sheets. PW1 gave evidence about theft of rubber sheets from his smoke house on the relevant day. He said that about 80 rubber sheets were stolen. He learnt about the theft on the morning of 11-03-2006. He identified MO1 series as some of those rubber sheets. PW2 is a rubber dealer and PW6, salesman in the shop of PW2. According to PW2 on 11-03-2006, petitioner and another brought 52 kgs of rubber sheets in a Maruti car to his shop for sale. He purchased those rubber sheets from petitioner. On 06-07-2006, police came with petitioner to his shop and seized some of those rubber sheets, identified by the witness as MO1 series. PW6 also has given evidence about the seizure. PW3 is the owner of Maruti car and stated that petitioner used to take his car on daily rent of Rs.500/-. Later he produced the Maruti car before the police. PW7 is the Police Constable who attested mahazar, Ext.P3. PW8, Sub Inspector gave evidence that Crl.R.P.No.2433 of 2009 2 he arrested petitioner on 06-07-2006 recorded confession statement given by him and on the information given by petitioner recovered MO1 series from the shop of PW2 as per Ext.P2. Petitioner told him about the place of occurrence on the base of which PW8 prepared mahazar for scene of occurrence. Ext.P4 is the F.I.R report. It is contended by learned counsel that there is no evidence to show that MO1 series are rubber sheets belonging to PW1. So far as identification of MO1 series is concerned it is true that no special identification marks were found on MO1 series but, the relevant circumstances are to be looked into. Theft of rubber sheets from the smoke house of PW1 was during the night between 10-03- 2006 and 11-03-2006. PW1 learnt about theft on the morning of 11- 03-2006. It is the same day that petitioner sold rubber sheets to PW2. Petitioner has no case that he got it in any other manner. Petitioner was not able to account for his possession of those rubber sheets. There is the evidence of PW8 that the place of occurrence was stated to him by the petitioner based on which Ext.P1, mahazar for scene of occurrence was prepared. Ext.P1 tallied with the evidence of PW1 regarding the place of occurrence. Statement of petitioner regarding place of occurrence is a conduct admissible under Sec.8 of the Evidence Act. These circumstances are sufficient to show that MO1 series are some of the rubber sheets stolen from the smoke house of Crl.R.P.No.2433 of 2009 3 PW1, possession of which petitioner could not account for. Learned magistrate has not found petitioner guilty under offences charged against him though it was found that petitioner was in recent possession of stolen articles. Once recent possession of the stolen articles is proved and there is no satisfactory explanation for such possession it is well within the power of court to presume that either the person in possession is the thief or a receiver of stolen articles. However since petitioner is acquitted of the charges against him under section 547 and 380 of the Code and that acquittal is not under challenge, it is not necessary to go into the question whether acquittal under those sections is proper, at the instance of petitioner. I find no reason to interfere with conviction of petitioner for offence punishable under section 379 of the Code. Learned magistrate has sentenced petitioner to undergo simple imprisonment for six months. It is submitted by learned counsel that petitioner had already been in detention for 126 days during the investigation of the case. Learned counsel submitted that petitioner is now leading a normal life and pleaded for leniency. Having regard to the facts and circumstances of the case I am satisfied that simple imprisonment for four months is sufficient in the ends of justice. Needless to say that petitioner is entitled to set off the period the detention he has undergone in connection with this case. Crl.R.P.No.2433 of 2009 4 Resultantly this revision is allowed in part to the extent that the sentence awarded to the petitioner is modified as simple imprisonment for four months. Set off is allowed. THOMAS P JOSEPH, JUDGE Sbna/