IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 Crl.Rev.Pet.No. 1310 of 2003() ------------------------------ CRA.4/1998 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.442/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER(S): PETITIONER: -------------------------------- KUNNOLA TOKI @ TOMY @ JOSE, S/O. VARKEY, AGED 24, RESIDING AT AYYAMKUNNU, KANNUR DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------- STATE, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. ------------------------- Crl.R.P.No.1310 of 2003 ------------------------- Dated this the 28th day of June, 2010 ORDER Petitioner, the third accused was convicted and sentenced for the offence under Sections 454 and 380 of the Indian Penal Code by Judicial Magistrate of First Class, Taliparamba in C.C.No.442/1997. Though petitioner was the third accused in C.C.90/1996, while he was tried in that case along with the first accused, petitioner absconded and the case was split up and re-filed as C.C.442/1997. First accused was tried and convicted by the learned Magistrate. Petitioner pleaded not guilty. Prosecution examined 8 witnesses and marked 4 Exhibits and identified MOs.1 to 3. Petitioner did not adduce any evidence. On the evidence, the learned Magistrate convicted him. Though petitioner challenged the conviction and sentence before Sessions Court, Thalassery in Crl.A.4/1998, learned Sessions Judge on an re-appreciation of evidence confirmed the conviction and dismissed the appeal. The revision is filed challenging the Crl.R.P.No.1310 of 2003 2 concurrent conviction and sentence. 2. Prosecution case is that PW1 the owner of a shop dealing business of rubber sheets closed the shop on the evening of 25.11.1995 and did not open the shop on 26.11.1995 and 27.11.1995. PW2 a neighbouring shop owner informed PW1 on 27.11.1995 that MO3 lock was broken and somebody had entered the shop room. PW1 went to the shop and found that rubber sheets weighing about 2 quintal which were kept in the shop room was stolen. PW1 did not immediately report the theft to the police. On the next day, PW1 got information that the accused were already caught by the police. He went to Payyavoor police station and identified MO1 bag and MO2 series of rubber sheets which were stolen from his shop. PW8 Sub Inspector of Police along with PW6 Head Constable, while on patrol duty, on the early morning of 27.11.1995 at about 3.45 a.m., found three persons at Kakkadkavu walking, carrying the rubber sheets on their head. When police jeep was stopped finding them, first accused ran away Crl.R.P.No.1310 of 2003 3 leaving MO1 bag which was on his head containing the rubber sheets. The rubber sheets on the head of the petitioner and the second accused were seized and petitioner and the second accused were arrested. Exhibit P2 seizure mahazar was prepared. PW8 questioned the accused. On the information furnished, which revealed that rubber sheets are stolen from the shop of PW1, Exhibit P4 report was submitted before the learned Magistrate along with production of the accused, with a prayer to remand of petitioner and the second accused. When PW1 appeared before the police and his statement was recorded. After completing the investigation, charge was laid. Petitioner though contended that he did not commit theft, after committing trespass into the shop building,learned Magistrate relied on the evidence of PWs.1 and 2 and found that the culprits had entered the shop room of PW1 and committed theft of rubber sheets along with MO1 bag which was there in the shop and MOs.1 and 2 are the stolen articles. The learned Magistrate on the Crl.R.P.No.1310 of 2003 4 evidence of PWs.6 and 8 found that petitioner was apprehended with the stolen article on the very same day of theft and in such circumstances convicted him for the offence. In appeal on re- appreciating the evidence the findings were upheld. The argument of the learned counsel appearing for the petitioner is that as PW1 did not report the factum of theft to the police and cannot identify the rubber sheets or MO1, the identification made by PW1 that MOs.1 and 2 are the stolen articles should not have been relied by the courts below. Learned counsel argued that there is no evidence to prove that petitioner committed the theft, after trespassing into the shop room and therefore, the conviction is bad. Learned counsel finally argued that in any case the sentence be modified, as the offence was committed in November 1995. 3. Learned Public Prosecutor pointed out that the trial court and the learned Sessions Judge appreciated the evidence in the proper perspective and there is no reason to interfere with the Crl.R.P.No.1310 of 2003 5 conviction or the sentence. 4. The evidence of PWs.1 and 2 conclusively establish that PW1 had closed his shop on the evening of 25.11.1995 and he did not open the shop on 26.11.1995 and 27.11.1995, and on the morning of 27.11.1995 PW2 found that the MO3 lock of the shop room was broken and somebody had entered the shop room and committed theft, PW2 informed it to PW1. PW1 went there and found that the rubber sheets of about 1 quintal were stolen, along with MO1 bag which was kept in the shop. Though PW1 did not report the matter of theft immediately to the police, on the evidence I find no reason to disbelieve the evidence of PWs.1 and 2, on the above factum of theft. 5. The evidence of PWs.6 and 8 establish that while on patrol duty, on the early morning of 27.11.1995, they found the petitioner along with two accused walking along the road at an untimely hour with rubber sheets on their heads. The evidence further establishes that finding the Crl.R.P.No.1310 of 2003 6 police party, first accused ran away and the petitioner and second accused were apprehended. Evidence of PWs.6 and 8 show that petitioner and second accused were carrying the rubber sheets on their heads. On questioning the petitioner and the second accused, it was revealed to the police that rubber sheets were stolen from the shop of PW1. Exhibit P4 disclosing all these facts was sent to the Magistrate. Exhibit P4 shows that it reached the learned Magistrate on 27.11.1995 itself. Therefore, though the factum of theft was not reported by PW1. On 27.11.1995, Exhibit P4 establishes that getting information about the theft from the accused, police submitted Exhibit P4, disclosing the theft committed in the shop of PW1 and the details of the rubber sheets stolen. In such circumstances, I find no reason to disbelieve the evidence of PWs.6 and 8 that they found petitioner along with the other two accused carrying rubber sheets on the early morning of 27.11.1995 at about 3.45 a.m. Though learned Crl.R.P.No.1310 of 2003 7 counsel argued that based on these evidence it is not possible to hold that MO2 series are the stolen rubber sheets as there is no particular mark to enable the identification mark as MO2 and therefore, it cannot be said that petitioner committed the offence. First of all, it is to be born in mind that, but for the said information, the factum of theft could not have been noted by the police. So fact that Exhibit P4 report was received by the learned Magistrate on 27.11.1995 itself is a guarantees for the genuineness of the case disclosed by PWs.6 and 8. Moreover, petitioner has no explanation whatsoever as to how he happened to carry the rubber sheets on his head and walk along with public road at about 3.45 a.m. It strengthens the prosecution case that MO2 series which were seized from the accused were stolen from the shop of PW1 and being carried by petitioner and other accused on their heads. In such circumstances, conviction of the petitioner for the offence under Sections 380 and 454 of Indian Penal Crl.R.P.No.1310 of 2003 8 Code is not illegal and warrants no interference. 6. Then the question is regarding the sentence. The learned Magistrate sentenced the petitioner to rigorous imprisonment for two years and fine of Rs.3,000/- and in default simple imprisonment for three months, for the offence under Section 454 he was sentenced to rigorous imprisonment for two years and fine of Rs.2,000/- and in default simple imprisonment for three months for the offence under Section 380 of Indian Penal Code. Set off was allowed. The substantive sentences were directed to be run concurrently. The argument of the learned counsel is that as the incident occurred in 1995 leniency is to be shown. Petitioner is not entitled to claim leniency for the delay, as the delay was due to the acts of the petitioner himself. When the first respondent was tried, he absconded. Therefore, trial as against petitioner was protracted. The trial could be completed thereafter only on procuring the presence of the petitioner. Considering the entire facts and Crl.R.P.No.1310 of 2003 9 circumstances interest of justice will be met if the sentence for the offence under Section 454 and 380 of Indian Penal Code is modified to rigorous imprisonment for 18 months and a fine of rupees Three thousand each and in default simple imprisonment for two months. 7. Revision is allowed in part. Conviction for the offence under Sections 454 and 380 of Indian Penal Code. The sentence awarded by the Magistrate as confirmed by the Sessions Judge is modified. Petitioner is sentenced to simple imprisonment for eighteen months each and a fine of rupees Three thousand each and on default simple imprisonment for two months. Petitioner is directed to appear before Judicial First Class Magistrate, Taliparamba on 24.7.2010. Learned Magistrate is directed to execute the sentence. M.Sasidharan Nambiar, Judge cms Crl.R.P.No.1310 of 2003 10 M.Sasidharan Nambiar, J. ------------------------- Crl.R.P.No.1310 of 2003 ------------------------- ORDER 28TH JUNE, 2010 -------------------------