IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2458 of 2009()
1. ABDUREHIMAN,S/O.MOHAMMED, AGED 23 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/07/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2458 of 2009
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Dated this the 31st day of July, 2009.
ORDER
Petitioner faced trial in the court of learned Judicial Magistrate of
First Class-I, Manjeri in C.C.No.603 of 2006 for offence punishable under
Section 380 read with Section 34 of the Indian Penal Code (for short, “the
Code”). Charge is that some time between 30.3.2006 and 31.3.2006 petitioner
along with a juvenile and in furtherance of their common committed theft of 40
rubber sheets weighting 100 kgs from the smoke house of PW1. It is contended
that conviction of the petitioner is not legal or proper.
2. Prosecution examined PWs 1 to 7 and proved Exts.P1 to P4 and
MO1. PW1 has given evidence regarding the theft as stated above. He learnt
about the theft only on the early morning on 31.3.2006 and the same day gave
Ext.P1, statement to the police regarding the incident. PW7, Sub Inspector
registered the case and investigated. PW7 claimed that on 6.7.2006 he
arrested petitioner and the juvenile in connection with Crime No.99 of 2006 of
his station and when they were questioned information regarding the incident on
hand was given. PW7 registered case against the petitioner and juvenile.
When questioned, petitioner told him that the rubber sheets are sold in a shop
and if taken there, he will show the shop and person concerned. As led by the
petitioner PW7 reached the shop of PW3 and seized the rubber sheets.
Crl.R.P.No.2458/2009
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Ext.P3 is the mahazar for seizure. PW3 who is a dealer in rubber has given
evidence that petitioner and another person came to his shop in a maruthi car
and sold about 100 kgs of rubber sheets on 31.3.2006. Those rubber sheets
bore identification mark ‘ATH’. Later police brought petitioner to his shop. He
produced a few of the rubber sheets (MO1 series) which the police took to
custody. PW5 is an attestor in Ext.P3, the mahazar supported prosecution.
PW1 identified MO1 series as some of the rubber sheets stolen from his smoke
house. PW4 is the owner of maruthi car. He stated that petitioner used to take
his car on rent. PW4 produced the car before the police and the police seized it
as per Ext.P4, mahazar. PW4 is an attestor in Ext.P4. PW7 has given evidence
regarding the arrest of petitioner and seizure as per Ext.P3. Place of
occurrence is pointed out to PW7 by the petitioner based on which he prepared
Ext.P2, scene mahazar.
3. There is evidence to show that petitioner is involved in the theft of
MO1 series, rubber sheets. Evidence of PW3 shows that petitioner had sold the
same to him. It is based on the above evidence that petitioner was convicted for
offence punishable under Section 380 read with Section 34 of the Code. On
going through the judgments under challenge and hearing learned counsel for
petitioner and Public Prosecutor I do not find reason to interfere with the
conviction of petitioner.
Crl.R.P.No.2458/2009
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4. Learned magistrate sentenced the petitioner to undergo rigorous
imprisonment for six months and to pay Rs.5,000/- as fine failing which he has
to undergo simple imprisonment for three months. It is directed that out of the
fine if realised Rs.3,000/- will be given to PW1 and Rs.1,000/-, to PW3 as
compensation. Appellate court did not interfere with the sentence. Having
regard to the facts and circumstances of the case I am satisfied that the
substantive sentence awarded to the petitioner can be modified as rigorous
imprisonment for four (4) months. There is no reason to interfere with the
sentence of fine and the direction for payment of compensation.
Resultantly, this revision petition is allowed in part to the extent that the
substantive sentence awarded to the petitioner is modified as rigorous
imprisonment for four (4) months. It is directed that petitioner will get the
benefit of set of against the detention if any undergone in this case. In all other
respects this revision petition will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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