IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1978 of 2009()
1. ANILKUMAR
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.BIJU MARTIN (STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/06/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.1978 of 2009
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Dated this the 24th day of June, 2009
O R D E R
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This revision is in challenge of judgment of learned Additional
Sessions Judge (Fast Track Adhoc-1), Kozhikode in Crl. Appeal No.775
of 2008 confirming conviction and sentence of petitioner for offences
punishable under Sections 454, 380 and 461 of the Indian Penal Code
(for short, “the Code”). Case is that on 21.4.2007 between 8.00 a.m.
1.00 p.m. petitioner committed lurking house and trespass in B1
quarters in the occupation of P.W.1 and his wife and theft of various
articles kept in the almirah. Learned magistrate found petitioner
guilty, convicted and sentenced to undergo rigorous imprisonment for
various periods. In appeal learned Sessions Judge confirmed the
conviction and sentence. It is contended in this revision that
conviction of petitioner is not sustainable in so far as there is no
reliable evidence to prove the alleged incident.
2. P.Ws.1 and 2 are husband and wife. Their evidence is that
on 21.4.1987 at about 8.00 a.m. they went out from B1 quarters in the
Campus of Medical College Hospital, Kozhikode in connection with their
duty after locking the door and returned at about 1.00 p.m. They saw
the front door of the quarters opened and articles lying scattered in
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the room. A watch and silver ornament were found missing. They
identified M.O.1 as the silver anklet which was stolen from their
house. P.Ws.8 and 10 are police officials. According to them, P.W.8
arrested petitioner on 30.4.2007 in connection with crime
No.192/2007. When questioned, petitioner confessed his involvement
in the incident in the case on hand. On the information given by
petitioner and as led by him, P.W.8 went to P.W.3 who produced
M.O.1. Exhibit P2 is the mahazar for its seizure. Exhibit P2(a) is the
relevant portion of the information which led P.W.8 to P.W.3. P.W.3
stated that he produced some articles before the police but he could
not identify M.O.1 as the article in question. He however admitted
that he purchased the articles from petitioner. P.W.4 is an attester
in Ext.P2 but did not support prosecution. P.W.5 recorded the first
information statement given by P.W.1 and registered the case.
Exhibit P3 is the mahazar for scene of occurrence prepared by P.W.5.
Exhibit P3 states that there was damage on the lock of the front door
and that the articles were lying scattered in the room.
3. Contention advanced in the revision is that there is no
evidence to prove the involvement of petitioner in the alleged incident.
The incident was on 21.4.2007 and as per evidence of P.Ws.3 and 8,
arrest of petitioner was on 30.4.2007. Though P.W.3 was not able to
identify M.O.1 as the article he had produced before the police he
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admitted that he purchased articles (which he later produced before
the police) from petitioner. Exhibit P2(a) is the relevant portion of
the information which petitioner gave to P.W.8. Authorship of sale of
the articles to P.W.3 is admitted by petitioner. Thus there is evidence
that petitioner was found in possession of M.O.1, the stolen article.
That door of the lock was opened and theft occurred in the quarters of
P.Ws.1 and 2 are proved by their evidence which gets corroboration
from Ext.P3, mahazar for scene of occurrence. I do not find reason to
disbelieve the evidence given by witnesses. From recent possession
of the stolen article with the petitioner courts below presumed that
petitioner has committed the offences. Hence conviction does not
require interference.
4. Learned magistrate sentenced petitioner to undergo
rigorous imprisonment for three years and payment of fine of
Rs.1,000/- under Sec.454 of the Code. For offence under Sec.380 of
the Code apart from rigorous imprisonment of two years, fine of
Rs.1,000/- was awarded. For the offence under Sec.461 of the Code,
rigorous imprisonment for six months was awarded. Considering the
age of petitioner and the fact that petitioner is undergoing
imprisonment since 13.5.2007, I am satisfied that for the offence
under Sec.454 of the Code rigorous imprisonment for a period of two
years is sufficient in the ends of justice. Sentence of fine awarded
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under Secs.454 and 380 are set aside.
Resultantly, this revision is allowed in part to the following
extent:
(i) Sentence of fine imposed on the
petitioner for the offences under Secs.454 and
380 of the Code are set aside.
(ii) Substantive sentence awarded
under Sec.454 of the Code is modified as
rigorous imprisonment for two years.
(iii) Direction issued by learned
magistrate that the substantive sentence shall
run concurrently and that petitioner is entitled
to set off, will remain.
Leaned Magistrate shall, forthwith issue modified warrant to the
Superintendent of Central Prison, where the petitioner is detained.
THOMAS P.JOSEPH, JUDGE.
vsv