IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2571 of 2009()
1. ABDUREHIMAN,S/O. MOHAMMED, AGED 23 YEARS
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/08/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.2571 of 2009
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Dated this 10th day of August 2009
ORDER
This revision is in challenge of judgment of learned Additional
Session Judge, Fast Track No-3, Manjeri in S.T.No.412 of 2007
confirming conviction and sentence of petitioner for offences
punishable under sections 457 and 380 r/w section 34 of the Penal
Code. Case is that on 23/06/2006 at about 3 a.m petitioner along with
a juvenile committed lurking house trespass in the shop of PW1 by
breaking the lock of its shutter and dishonestly removed 230kgs of
rubber sheets worth Rs.22800/-. PW1, owner of the shop has given
evidence that the lock of its shutter was seen broken on 23-06-2006 at
about 7 a.m. He stated that 230kgs of rubber sheets bearing the mark
“nkb” were stolen from his shop the previous night. Ext.P1 is his
complaint to the police regarding the incident. He identified one of the
rubber sheets stolen as MO1. He claimed that the rest of the rubber
sheets were released to him from the court. Ext.P2 series are
photographs of those rubber sheets. PW3 claimed that he had sold
118kgs of rubber sheets bearing his mark “nkb” to PW1 on
26-06-2006. He also identified MO1 as one among those rubber
sheets. PW4 claimed that while he was returning after seeing World
Cup Football in the television at the house of his friend on 26-06-2006
at about 3 a.m he saw a maruti car bearing No. TN-09C/2927 in front of
Crl.R.P.No.2571 of 2009 2
the shop of PW1. The next day he learnt about the theft and informed
the matter to PW1. PW5 claimed that he saw the sub Inspector
arresting petitioner while petitioner and another were riding a motor
cycle. That motor cycle was seized as per Ext.P2, mahazar. PW6 is the
proprietor of a shop dealing in rubber sheets. He purchased rubber
sheets from petitioner. On 06-07-2006 police came with petitioner and
he produced those rubber sheets to the police. MO1 is one of those
rubber sheets. He claimed that petitioner had sold 230kgs of rubber
sheets to him about fifteen days prior to the police seizing the same on
06-06-2006. PW7, employee in the shop of PW6 attested the mahazar
for seizure of the rubber sheets and gave evidence regarding the
seizure. PW8, owner of maruti car stated that petitioner used to take
his car on daily rent of Rs.500/-. On 22-06-2006 petitioner had taken it
on rent. The car was returned to him on the night of 23-06-2006. He
claimed that petitioner paid Rs.1000/- by way of rent. PW8 attested
the mahazar for seizure of the maruti car on 17-07-2006. PW9 is the
attestor in Ext.P6, mahazar for seizure of MO3, the iron rod on the
information given by petitioner. PW10 is an attestor in the mahazar for
seizure of MO2 series. PW11, head constable and PW13, sub Inspector
agave evidence regarding the investigation, arrest of petitioner and
seizure of material objects on the information given by petitioner. It is
contended by learned counsel that involvement of petitioner in the
Crl.R.P.No.2571 of 2009 3
alleged incident is not proved beyond reasonable doubt. It is
contended that alleged seizure of maruti car as per Ext.P8 was on
17-07-2006, according to the prosecution it was based on the evidence
of PW4 that he had seen that maruti car in front of the shop of PW1 on
23-06-2006 at about 3 a.m that the involvement of petitioner was
suspected but evidence of PWs.11 to 13 is that petitioner was arrested
on 06-07-2006.
2. It is not as if the case is charged against petitioner only on
the strength of seizure of the car as per Ext.P8 on 17-07-2006 or the
evidence of PW4 that he saw the car in front of shop of PW1 at the
relevant time. The user of the car by the petitioner at the relevant
time and it being seen in front of the locked shop at the relevant time
is proved. There is also evidence of PW.6 that petitioner had sold the
rubber sheets to him about fifteen days before 06-07-2006. There is
sufficient evidence on record to show that the rubber sheets which
were stolen from the shop of PW1 were found in the possession of
petitioner soon after the incident. I have referred to the evidence of
prosecution witnesses which the courts below have accepted. On
going through the judgments under challenge and hearing learned
counsel I find reason to differ from the finding of the courts below that
the petitioner was found in recent possession of stolen article. There is
also the seizure of MO3, iron rod as per Ext.P6 on the information given
Crl.R.P.No.2571 of 2009 4
by petitioner. From the above evidence and circumstances, the courts
below came to the conclusion that petitioner committed lurking house
trespass and theft. There is no reason to differ.
3. So far as sentence is concerned learned counsel submitted
that petitioner has already undergone imprisonment in this case for a
period of 126 days. It is true that petitioner is involved in a few other
cases also but learned counsel submits that petitioner is now leading a
crime free life. I am inclined to think that the sentence awarded to the
petitioner can be modified as simple imprisonment for four months
each while retaining the sentence of fine.
Resultantly this revision is allowed in part to the extent that while
retaining the sentence of fine and default sentence, the substantive
sentence awarded to the petitioner is modified on both counts as
simple imprisonment for four months each, to run concurrently.
Petitioner will get the benefit of set off as against the
detention/imprisonment undergone in this case.
THOMAS P JOSEPH, JUDGE
Sbna/