IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2287 of 2008()
1. BINU, AGED 38, S/O.THANKAPPAN,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.SASTHAMANGALAM S. AJITHKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :10/07/2008
O R D E R
V. RAMKUMAR, J.
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Cr.R.P.No.2287 of 2008
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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 1st accused in C.C. No.234 of
1996 on the file of the J.F.C.M-II, Nedumangad for offences
punishable under Sections 457, 380 and 201 read with 34 IPC
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:
The four accused persons in furtherance of their common
intention to commit theft, broke open the lock of the gate of the
house of PW1 bearing No.V.P.6/417 and committed theft of two
motor cycles worth Rs.46,000/-. The number plate of one of the
motor cycle was fraudulently altered. The accused has thereby
committed offences punishable under Sections 457, 380 and 201
read with 34 IPC.
3. On the accused pleading not guilty to the charge
framed against them by the trial court for the aforementioned
Crl.R.P.No.2287/2008 -:2:-
offences, the prosecution was permitted to adduce evidence in
support of its case. The prosecution altogether examined 7
witnesses as P.Ws 1 to 7 and got marked 5 documents as Exts.
P1 to P5 and two motor cycles as MOs1 and 2.
4. After the close of the prosecution evidence, the
accused were questioned under Sec. 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against
them in the evidence for the prosecution. They denied those
circumstances and maintained their innocence. They did not
adduce any defence evidence when called upon to do so.
5. The learned Magistrate, after trial, as per judgment
dated 3.06.1999 found accused Nos.1 and 2 guilty of the
offences punishable under Sections 457, 380 and 201 read with
34 I.P.C. The 4th accused was acquitted. For the conviction
under sections 457, 380 and 201, accused Nos.1 to 3 were
sentenced to undergo simple imprisonment for six months each.
The substantive sentences were directed to run concurrently.
On appeal preferred by the revision petitioner before the
Sessions Court, the lower appellate court as per judgment dated
27.09.07 in Crl.Appeal No.251 of 1999, the Additional District
and Sessions Judge, Fast Track Court-I, Thiruvananthapuram,
Crl.R.P.No.2287/2008 -:3:-
dismissed the appeal confirming the conviction entered and the
sentence passed against the revision petitioner. Hence, this
Revision.
6. The learned counsel for the petitioner submitted as
follows:-
The revision petitioner has been convicted on the sole
testimony of PW2. While according to the prosecution the
occurrence was on 29.10.95 and the two motor cycles were
recovered by the Police (PW7) from Vellaikadavu river on
21.1.96. PW2 would depose that he went to Police Station on
coming to know of the recovery of motor cycles on 29.1.96. If so,
his testimony cannot be believed, particularly, when the revision
petitioner was arrested only on 26.1.96.
7. I cannot agree with the above submissions. PW2 has
correctly deposed before the court that in the very same night in
which the two motor cycles were stolen, A1 to A3 had
approached him seeking permission to park the vehicles in his
compound stating that their petrol had exhausted and PW2 had
permitted them to do so and they had taken away the vehicles on
the next day. PW2 further stated that he had gone to the Police
Station on 21.1.96 on coming to know about the recovery of the
Crl.R.P.No.2287/2008 -:4:-
motor cycles from Vellaikadavu river and had identified both the
motor cycles from the Police Station. No doubt, he gave the date
as 29.1.96 in his chief examination. However, it was in the
cross-examination that the defence get the date corrected as
21.9.96 and PW2 deposed that the date mentioned in the chief
examination was a mistake.
8. Eventhough the learned counsel appearing for the
revision petitioner assailed on various other 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.
9. What now survives for consideration is the question
regarding the adequacy or otherwise of the sentence imposed on
the revision petitioner. The courts below have concurrently
found that the revision petitioner along with A2 and A3
committed the offences. The sentence imposed on the revision
petitioner also cannot be said to be harsh or disproportionately
excessive. Having regard to the daring manner in which the
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offence was committed and considering the fact that it was with
a view to hide the booty that they made PW2 to believe that the
petrol in their motor cycle had exhausted and sought permission
to park the motor cycles in his compound, they were really
throwing PW2 off the scent with a view to hide the daring
offences committed by them during the dead of the night. Penal
servitude by way of incarceration alone will serve as a
disincentive to such daring offences. I do not find any good
reason to interfere with the conviction entered and the sentence
passed.
Accordingly, this Crl.R.P is dismissed.
Dated this the 10th day of July, 2008.
V.Ramkumar, Judge.
sj