IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 344 of 2006(A)
1. S.RAJEEV. C.NO.1041, CTRL PRISON, KANNUR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :06/12/2006
O R D E R
K. P. BALACHANDRAN, J.
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CRL. R.P. NO. 344 OF 2006
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Dated this the 6th day of December, 2006.
O R D E R
Rajeev, Convict No. 1041 of Kannur Central Prison is the
petitioner. He along with the absconding second accused in
Crime No. 68/2000 of Kasaragod police station was charge-sheeted by
the Circle Inspector of Police, Kasaragod for offences under Sections
457 and 380 of the Indian Penal Code, on the allegation that at about
00.30 hours in the night on 05.02.2000, the petitioner and the
absconding second accused committed lurking house trespass by
entering into Sree Subrahmanya Temple situated at Thalaklayi which
belongs to the family of CW1 and committed theft of Balibimbam
made of Panchaloha; Rudraksha Mala; Velli Alroopam and coins worth
Rs. 300/-. Final report was filed after due investigation and case was
registered on the file of the Court of the Chief Judicial Magistrate,
Kasaragod as C.C. 490/2000. On appearance of the petitioner
pursuant to the issuance of summons, the learned Chief Judicial
Magistrate split up and refiled the case against the absconding second
accused as C.C. 337/2001 and after hearing preliminary arguments,
framed charge against the petitioner for offences under Sections 457
and 380 of the I.P.C, read over and explained to the petitioner and
CRL. R.P.344/2006 2
questioned him there upon he pleaded not guilty. Consequently a trial
of the case was conducted.
2. Prosecution examined PWs 1 to 8; got marked Exhibits P1 to
P6 and got identified M.Os 1 and 2 to establish the guilt in the
petitioner. On the prosecution closing their evidence, the petitioner
was questioned under Section 313 of Code of Criminal Procedure.
Thereupon he generally denied all incriminating circumstances
appearing in evidence against him and maintained that he is innocent.
However, no defence evidence was adduced except Ext. D1 marked in
defence. Learned Chief Judicial Magistrate considered the case in the
light of the evidence adduced as aforesaid, found the petitioner guilty
of offences punishable under Sections 457 and 380 of I.P.C; convicted
him thereunder and sentenced him to undergo rigorous imprisonment
for a term of four years each under Sections 457 and 380 of I.P.C and
to pay a fine of Rs. 2,000/- and in default to undergo rigorous
imprisonment for a further term of three months. It was also directed
that the substantive sentence of imprisonment shall run concurrently.
Set off was also allowed. The petitioner challenged the said conviction
and sentence in Crl. Appeal No. 231/2001 before the Sessions Court,
Kasaragod. The said appeal was dismissed confirming the correctness
of the conviction and sentence so passed against the petitioner.
CRL. R.P.344/2006 3
Hence, this revision at the instance of the petitioner-first accused.
3. Heard arguments of counsel for the petitioner and the Public
Prosecutor. It is not in controversy before me that the theft has taken
place from the temple as is reported in Ext. P1, F.I. Statement by PW1
and as deposed to by PWs 1 and 2. M.O.1 broken lock, was taken into
bandabas by the police under Ext. P2 scene mahazar to which PWs 3
and 4 are the attestors. On the basis of Ext. P1, F.I. Statement given
by PW1, PW5 the Head Constable of Kasaragod police station has
registered crime drawing up Ext. P3 F.I.R in that behalf. PW7 effected
arrest of the petitioner in connection with Crime No. 81/2000 on
01.03.2000 and it is consequent on Ext. P5 information furnished by
him to PW7 the investigating officer, that the latter could effect seizure
of M.O.2 idol from the house of petitioner under Ext. P4 seizure
mahazar prepared in that behalf, attested also by PW6. The idol so
recovered on the basis of Ext. P5 information furnished by the
petitioner is got identified also by PW1. PW8 the successor in office of
PW7 has completed the investigation and laid charge against the
petitioner and the other absconding second accused.
4. In the nature of the convincing evidence furnished by PW7 as
regards Ext. P5 confession statement furnished to him by the
petitioner, the correctness of which is established by the seizure of
CRL. R.P.344/2006 4
M.O.2 from the house of the petitioner himself under Ext. P4 seizure
mahazar attested also by PW6, the counsel for the petitioner submits
that, he is unable to assail the genuineness of the said seizure.
However, his argument is that the seizure was effected only as late as
on 01.03.2000 where as the theft was on 05.02.2000 and that in view
of the delay of more than 20 days in effecting the seizure, it cannot be
said that the accused committed the theft as he could very well be a
person who has come into possession of M.O.2 idol in any other
manner in view of the lapse of more than 20 days in between the theft
and the seizure. According to the counsel, the presumption that the
petitioner is the thief can be drawn only if the recovery was
immediately after the theft and not after such a long lapse of 20 days.
The contention is bereft of merit for two reasons. Firstly, the
petitioner has no case that he came into possession of M.O.2 idol from
somebody else. Secondly, M.O.2 is an idol and it cannot be disposed
of immediately after the theft as in the case of other gold ornaments
which can be immediately parted with by sale or pledge to any one. A
thief who commits theft of an idol from a temple will have to wait till
circumstances are favourable for him to take it out for disposal and he
has also to find out an intending purchaser as it is not usual that idols
will be purchased by all. Finally, it is argued on behalf of the petitioner
CRL. R.P.344/2006 5
that the sentence awarded to the petitioner is excessive and that some
leniency may be shown in the matter of sentence awarded to the
petitioner. It is true that the sentence awarded is rigorous
imprisonment for four years each for offences under Sections 457 and
380 of I.P.C apart from the sentence of fine and sentence in default of
payment of fine. I am of the view that a reduction of a term of six
months can be granted in the sentence awarded to the petitioner.
In the result, I confirm the conviction of the petitioner for
offences under Sections 457 and 380 of I.P.C, but reduce the
substantive term of imprisonment awarded thereunder from 4 years
each to 3= years each. In all other respects, the sentence awarded to
the petitioner is also confirmed. This revision is disposed of with the
above modification. A copy of this order shall be forwarded to the
petitioner forthwith through the Superintendent of Central Prison,
Kannur.
K. P. BALACHANDRAN, JUDGE.
smp