IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2107 of 2007()
1. BABU, C.NO.1461
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :..
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/11/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
------------------------------------------
CRL.R.P. NO. 2107 OF 2007
------------------------------------------
Dated this the 4th day of November, 2008
O R D E R
Revision petitioner was concurrently convicted and
sentenced for the offence under section 379 read with section 34
of IPC. Prosecution case was that on 4.10.1995 petitioner along
with the first accused approached PW1, a videographer and
requested to accompany them to take video of scenery. PW1
accompanied the two accused and took videos. While PW1 was
travelling with them in PKV bus and the bus reached Asoka
junction, Kattappana and PW1 started to get down, it was found
that MO3 VIP suitcase containing video camera as well as the
video cassettes were missing. So also the two accused.
According to the prosecution the accused in furtherance of their
common intention committed theft of the video camera of
Panasonic company worth Rs.49,150/- along with MO3 suitcase
and MO2 cassettes and thereby committed the offence under
section 379 read with section 34 of IPC. Ext.P1 F.I. Statement of
PW1 was recorded on the evening of 5.10.1995 and based on
that Ext.P1(a) F.I.R. was prepared and Crime 345 of 1995 was
CRRP2107/07 2
registered. While PW11 the ASI was searching for the accused,
at Kumali junction PW11 found both the accused at about 4.30.
p.m. on 15.10.1995. The VIP bag containing the video camera
and cassettes were also in the possesion of the two accused.
They were arrested and Ext.P2 mahazar was prepared in the
presence of PW6, the receptionist of Lake Queen Lodge near to
the scene from where the accused were arrested. PW10 the
investigating officer questioned the accused and got identified
MOs 1 to 4 as the stolen articles. After completing investigation
he laid the charge before Judicial First Class Magistrate,
Kattappana.
2. Charge for the offence under section 379 read with
section 34 of IPC was framed and read over to the two accused.
They pleaded not guilty. First accused subsequently absconded
and the case as against him was refiled. Prosecution examined
11 witnesses and marked 3 exhibits and identified MOs 1 to 5.
On the side of petitioner two witnesses were examined. Learned
Magistrate on the evidence found the petitioner guilty. He was
convicted and sentenced to rigorous imprisonment for two years
and a fine of Rs.2,000/- and in default simple imprisonment for
six months. Petitioner challenged the conviction and sentence
CRRP2107/07 3
before Sessions Court, Thodupuzha in Crl. Appeal 219 of 2001.
Learned Sessions Judge on reappreciation of evidence confirmed
the conviction and dismissed the appeal. Petitioner was
subsequently arrested. While undergoing sentence, revision
was filed from jail. Mr. P.V. Vijayakumar was appointed the
State Brief to argue the revision.
3. Learned counsel appearing for petitioner and the
learned Public Prosecutor were heard.
4. The learned counsel argued that there is no evidence
to prove that petitioner committed the theft as alleged and
Courts below did not properly appreciate the evidence. It was
argued that petitioner was only found along with first accused
and based on that fact alone petitioner cannot be convicted and
therefore the conviction and sentence is not sustainable.
5. The evidence of PW1 was appreciated by learned
Magistrate and the learned Sessions Judge in the proper
perspective. It was found that PW1 is a credible and reliable
witness. The evidence of PW1establish that petitioner and the
other accused were travelling with PW1 on 4.10.1995 through
Upputhara-Kattappana route for taking videos on the request of
the two accused. His evidence also proves that petitioner and
CRRP2107/07 4
the other accused were with PW1 while travelling in PKV bus.
This fact was corroborated by the evidence of PW9 the
conductor of the PKV bus. PW9 also corroborate the evidence of
PW1 that when the bus reached Asoka junction the accused and
the MO1 VIP box containing the camera were missing. The
evidence of PW1 with the evidence of PW8 Head Constable
establish that Ext.P1 F.I. Statement of PW1 was recorded by the
Head Constable on the evening of 5.10.1995 at 8.30 p.m.
Learned counsel argued that Ext.P1 reached the Court only on
7.10.1995 and there is inordinate delay. Ext.P1 F.I. Statement
was recorded and Ext.P1(a) F.I.R was prepared at 8.30 p.m. on
5.10.1995. It is seen from the endorsement by the learned
Magistrate that Ext.P1(a) reached the Court on the morning of
7.10.1995. Accused were arrested and MOs were recovered
only on 15.10.1995 and therefore it cannot be said that Ext.P1
F.I.Statement or Ext.P1(a) F.I.R were subsequently manipulated.
Evidence of PW1 establish that MOs 1 to 4 belong to him and
while he was travelling along with the petitioner and the first
accused they were stolen from the bus before it reached the
Asoka junction. The Courts below also accepted evidence of
PW1 on the identity of MO1 to 4. It is conclusively proved that
CRRP2107/07 5
MO1 to 4 are the stolen articles. Evidence of PW11
corroborated by the evidence of PW6 with Ext.P2 recovery
mahazar establish that petitioner and the first accused were
arrested at Kumali junction and MOs 1 to 4 were recovered
under Ext.P2 mahazar. The evidence of PWs 2 and 3 establish
that revision petitioner along with first accused came to their
house and stayed there for one day and at that time MOs 1 to 4
were with them. That evidence of PWs 2 and 3 was further
corroborated by the evidence of PWs 4 and 5 who had seen the
accused including the petitioner taking videos using the camera.
Though learned counsel argued that their evidence should not
have been relied on, on going through the depositions I do not
find any reason to disbelieve their version. It is conclusively
proved that MOs 1 to 4 which are the stolen articles were with
the petitioner and the other accused and along with MOs 1 to 4
they were arrested by PW11 from Kumali junction. In such
circumstances I do not find any reason to interfere with the
conviction for the offence under section 379 read with section
34 of IPC.
6. Then the only question is with regard to the sentence.
The argument of the learned counsel appearing for petitioner is
CRRP2107/07 6
that petitioner is not involved in any other case and therefore
leniency may be shown. Learned Public Prosecutor also
submitted that petitioner was not involved in any other case.
Considering the nature of offence, interest of justice will be met
if the substantive sentence is reduced to rigorous imprisonment
for 15 months.
Revision is therefore allowed in part. Conviction of the
petitioner for the offence under section 379 read with section 34
IPC is confirmed. Substantive sentence is modified to rigorous
imprisonment for 15 months. Fine and default sentence is
confirmed.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-