IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 611 of 2008()
1. KUMARAN @ VIJAYAN, C.NO.2846,
... Petitioner
Vs
1. STATE OF KERALA.
... Respondent
For Petitioner :SRI.R.KRISHNAKUMAR (STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :10/07/2008
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. NO. 611 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 accused in C.C. No.291 OF 2005 on the file
of the J.F.C.M. , Mannarkkadu for offences punishable under Sections
457, 380 and 461 I.P.C. 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:
On 16-11-2004 at about midnight the accused broke open the
kitchen door of a house bearing No. IX/115 of Thachanattukara
Panchayat and belonging to P.W.3 and after gaining entry into the
said house committed theft of 45 gms. of gold ornaments kept in
the almirah. The accused has thereby committed offences punishable
under Sections 457, 380 and 461 I.P.C.
3. On the accused pleading not guilty to the charge framed
against him by the trial court for the aforementioned offences, the
prosecution was permitted to adduce evidence in support of its case.
The prosecution altogether examined 8 witnesses as P.Ws 1 to 8 and
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got marked 8 documents as Exts. P1 to P8 and a gold ingot as MO1.
4. After the close of the prosecution evidence, the accused
was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence for
the prosecution. He denied those circumstances and maintained his
innocence. He did not adduce any defence evidence when called upon
to do so.
5. The learned Magistrate, after trial, as per judgment dated
25-4-2006 found the revision petitioner guilty of the offences and
sentenced him to simple imprisonment for two years and to pay fine of
Rs. 1,000/- and on default to pay the fine to suffer simple
imprisonment for three months under Sec. 457 and 380 I.P.C. and
simple imprisonment for one year under Sec. 461 I.P.C. The
substantive sentences were directed run concurrently. On appeal
preferred by the revision petitioner before the Sessions Court as Crl.
Appeal No. 394 of 2006 before the Sessions Court, Palakkad, the I
Addl. Sessions Judge as per judgment dated 17-2-2007 dismissed the
appeal confirming the conviction entered and the sentence passed
against the revision petitioner. Hence this Revision.
6. I heard Adv. Sri. R. Krishna Kumar, the learned counsel
appearing for the revision petitioner on State Brief and Adv. Sri. C.M.
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Nazar, the learned Public Prosecutor.
6. P.W.3 (Ramla) had left for her relatives house on 16-11-
2004 after locking the door of the house. On 17-11-2004 at about
7 a.m. when she returned to her house she found the door lying open
and a gold necklace weighing three sovereigns, a gold chain
weighing three sovereigns, a gold ear stud weighing half sovereign,
two finger rings each weighing = sovereigns and one bangle weighing
half a sovereign stolen from the house. P.W.4 who is a neighbour of
P.W.3’s house had also seen on the next morning that the house
burgled on the next day morning. P.W.1 was the Sub Inspector of
Police, Munnar. He arrested the revision petitioner during the early
hours of 12-8-2005 under suspicious circumstances and registered
Ext.P1 F.i.R. under Sec. 41 (1)(d) Cr.P.C. On his interrogation, the
accused made a confession that he had sold the gold ornaments to one
Soukath Ali. Ext.P2 is the said confession. Pursuant to the said
confession the accused revision petitioner led the police party to P.W.8
from whom MO1 gold ingot weighing 45 gms was seized by P.W.1
under Ext.P3 mahazar. Since the occurrence took place within the
limits of the Nattukal Police Station, the F.I.R. was transferred to that
Police Station. P.W.2 is the son of Shaukath Ali and he also deposed
in terms of the prosecution case. P.W. 8 also confessed that the
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accused had sold the gold ornaments to him and that he had
converted the same into MO1 ingot . So the testimony of P.W.3 that
she lost the ornaments corroborated and the prosecution has been
able to connect the accused with the offence. Eventhough the
learned counsel appearing for the revision petitioner assailed on
various 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.
7. What now survives for consideration is the question
regarding the adequacy or otherwise of the sentence imposed on the
revision petitioner. Having regard to the fact that the petitioner is
involved in three other crimes namely Crime Nos. 146 of 2005, 48 of
1997 of Nattukal Police Station for similar offences and Crime No. 622
of 2005 of Mannarkkadu Police Station for similar offences, I do not
think that the sentence imposed on the petitioner is excessive or
disproportionately harsh. I am also not inclined to give concurrency
of the sentence imposed in this case with those in the other cases
under Sec. 427 Cr.P.C. by applying the ratio in Ammavasal and Anr.
v. Sub Inspector of Police, Valliyannoor – AIR 2000 SC 3544
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and Mohd. Akhtar Hussain v. Assistant Collector of Customs –
AIR 1988 SC 2147. The sentence imposed on the revision petitioner
is confirmed.
In the result, this Revision is disposed of confirming the
conviction entered and the sentence imposed as above.
Dated this the 10th day of July 2008.
V.Ramkumar, Judge.
ani.
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V. RAMKUMAR, J.
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Crl. R.P. NO. 611 OF 2008
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Dated: 10-07-2008
O R D E R