IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 Crl.Rev.Pet.No. 2152 of 2009() ------------------------------ CRA.251/2005 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-IV, TRIVANDRUM CC.477/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER(S)/5TH APPELLANT/5TH ACCUSED ------------------------------------------------------------------- LINU KUMAR @ UNNI, S/O.RAJAN, KUNNUMPURATHU VEEDU, PULLUKADU, ATTIPRA VILLAGE. BY ADV. SRI.M.DINESH RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2152 of 2009 -------------------------------------- Dated this the 10th day of July, 2009. ORDER Petitioner along with four others was charge sheeted for offence punishable under Section 379 read with Section 34 of the Indian Penal Code (for short, “the Code”). Charge is that in furtherance of common intention they cut and removed two sandalwood trees from the compound of Perumkuzhi Juma Ath on 10.9.2001 at about 3.30 a.m. According to the prosecution, police party on law and patrol duty found petitioner in a car near the place of occurrence on the early hours of 10.9.2001 and on checking that car, 13 pieces of sandal wood were found in its dicky. Accused Nos.1 to 3 were not available for trial along with the petitioner and accused No.4. Accused No.4 was acquitted for want of evidence. Petitioner was found guilty, convicted and sentenced to undergo simple imprisonment for one year and payment of fine of Rs.5,000/- . In the appeal, sentence was modified as simple imprisonment for six months and payment of fine of Rs.3,000/-. It is argued by learned counsel that it is not shown that the sandal wood allegedly seized from the dickey of the car were stolen from the compound of the Juma Ath. 2. Evidence of PWs 5 to 7, police officials is that while on patrol duty on the night of 10.9.2001 they reached Edanjimoola on the early hours of that day and found an ambassador car parked on the side of the road with petitioner Crl.R.P.No.2152/2009 2 sitting on the seat of the driver and sleeping. He was questioned about his presence at the spot. He was not able to give satisfactory explanation. Police checked the car and found 13 pieces of sandal wood from the dickey. The same were seized as per Ext.P1, mahazar. PW8 examined by the prosecution also gave similar evidence. They identified MO1 series as the pieces of sandal wood seized from the dickey. 3. Next evidence is that of PW1, Secretary of the Juma Ath. He stated that the sandal wood trees standing in the compound of Juma Ath were stolen on 10.9.2001. He learnt about the theft on the morning of 10.9.2001. He identified MO1 series as the stolen sandal wood. Ext.P2 is the mahazar for scene of occurrence. 4. It is argued by the learned counsel that there is no proof of theft. According to the learned counsel, accused Nos.1 to 3 subsequently faced trial and were acquitted. At any rate the offence proved is only under Section 411 of the Code. Counsel pleaded that in case this Court confirmed conviction, leniency may be shown to the petitioner. 5. While considering the contention that theft is not proved, the circumstances proved in the case have to be looked into. Ext.P2, mahazar for scene of occurrence shows that a few sandal wood trees standing in the compound of Juma Ath were cut and removed and its stumps were seen at the place of occurrence. It is proved by the evidence of PW1 that theft was on the night of 10.9.2001. Very same night, petitioner was seen near the place of occurrence with MO1 series. Petitioner could not give any explanation for his Crl.R.P.No.2152/2009 3 possession of MO1 series. Sandal wood is an item of timber which cannot be transported without necessary permit. In this case, petitioner had no valid permit with him. Therefore, it is certain that he was unauthorisedly keeping in his possession sandal wood (MO1 series). He had no case that by any authority or permission or in any other lawful manner he came into possession of MO1 series. 6. The next item of evidence is the description of stumps and remnants of the branches of the sandal wood found in the compound of the Juma Ath as described in Ext.P2. It is seen that girth of the branches and stumps tallied with the girth of the pieces of sandal wood seized from dickey of the car of the petitioner. In a case of this nature the case of prosecution has to be considered with reference to the evidence and circumstances available. Apart from that, PW1 has also identified MO1 series. Learned Sessions Judge has stated that specification of the stump and remnants of branches referred in Ext.P2 tallied with the specification given in Ext.P1. 7. That, accused Nos.1 to 4 are acquitted does not mean that petitioner is not involved or that nobody else was involved in theft along with the petitioner. Acquittal of accused Nos.1 to 4 was because there was no material to connect them with the crime as what was available was only the statement given by petitioner to the police which could not be used against accused Nos.1 to 4. Section 114 of the Evidence Act permitted the court to presume that the person who is in recent possession of the stolen article is the thief or receiver of the stolen article. In this case, there is no material on record Crl.R.P.No.2152/2009 4 to presume that petitioner was only a receiver of the stolen article. If it were so, he would have disclosed the source of MO1 series to the police when he was questioned at the time of seizure of MO1 series. Therefore, the only inference that could be drawn is that petitioner has committed theft. I find no reason to interfere with the conviction. Petitioner, it is not disputed is a driver by occupation. It is not shown that he is involved in any other case. Considering the above circumstances and also taking into account the age of the petitioner I am satisfied that fine of Rs.5,000/- (Rupees Five thousand only) is sufficient in the ends of justice. In default of payment, petitioner has to undergo simple imprisonment for two months. Petitioner is granted two months time to deposit fine in the trial court. In case of default petitioner shall appear in the court below on 14.9.2009 to receive the default sentence. Execution of warrant if any against the petitioner will stand in abeyance till 14.9.2009. THOMAS P.JOSEPH, Judge. cks