IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 2446 of 2007()
1. MOHANAN, S/O. RAMAN,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.SHYAM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :02/07/2007
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 2446 OF 2007
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Dated this the 2nd day of July, 2007
O R D E R
The petitioner, who was the 2nd accused in
C.C.No.123/2000 on the file of the JFCM-III, Palakkad, challenges the
conviction entered and the sentence passed concurrently against him by
the courts below for an offence punishable under section 379 IPC.
2. According to the prosecution, PW3, the defacto
complainant, while on his way to Namakkal in a bus was robbed off the
gold ornaments carried in his pocket and it was the 1st accused who
committed the offence at about 11.30 p.m. on 17.1.2000.
3. Eventhough the courts below did not accept the prosecution
case that it was first accused who had picked the pocket of PW3, both
the courts have concurrently convicted the revision petitioner who was
the 2nd accused since the five of the stolen ornaments were recovered
from the possession of the revision petitioner within five hours of the
theft. Both the courts below have relied on the testimony of PW3 who
identified the ornaments as his own and the evidence of the recovery
witness. Even if the recovery of the ornaments falling under section 27
of the Evidence Act may not constitute substantive evidence, it was
corroborated by the testimony of PW3 who identified the same from the
witness box. It cannot be said that the conviction recorded against the
Crl.R.P.No.2446/07
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revision petitioner is illegal.
4. What now survives for consideration is the question of
legality and the extent of the sentence imposed on the revision
petitioner.
5. Having regard to the fact that the case of the prosecution
that it was the 1st accused who had picked the pocket of PW3 while he
was travelling in the bus has not been accepted by the courts below and
having further regard to the fact that no previous conviction or
involvement in any offence by the revision petitioner was proved, penal
servitude by way of incarceration for a period of three years was not
warranted. For the conviction recorded against the revision petitioner, I
am of the view that imprisonment for a period of two years and an
appropriate fine would suffice. Accordingly, while confirming the
conviction recorded against the revision petitioner, the sentence
imposed on him is modified. For the said conviction the revision
petitioner need only undergo rigorous imprisonment for two years and to
pay a fine of Rs.5,000/-(Rupees five thousand only) and on default to
pay the fine he shall suffer simple imprisonment for three months.
This revision is disposed of as above.
(V. RAMKUMAR, JUDGE)
aks