IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3549 of 2007()
1. AYYAPPAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.SAJEEV.T.P.
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/08/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.3549 of 2007
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Dated this the 4th day of August, 2009.
ORDER
This revision arises from judgment of learned Sessions Judge, Thrissur
in Crl.Appeal (Jail Appeal) No.14 of 2007 confirming conviction and sentence of
petitioner in C.C.No.212 of 2002 of the court of learned Chief Judicial
Magistrate, Thrissur. Petitioner faced trial for offences punishable under
Sections 457, 461 and 380 of the Indian Penal Code (for short, “the IPC”). Case
is that on 11.11.1998 at about 7.30 p.m. petitioner committed lurking house
trespass in the house of PW1, opened the almirah and committed theft of gold
ornaments and other articles. PW1 has given evidence that he locked the house
and went for duty on the previous day at 7 p.m. and came back by 8 p.m. the
next day. He found the lock of front door broken, steel almirah remaining open
and articles lying scattered on the floor. Gold ornaments and other articles were
stolen. He identified those articles as MOs 1 to 7. PW6, Circle Inspector
claimed to have arrested petitioner on 30.3.1999 at about 4.45 p.m. in Crime
No.52 of 1999. Petitioner was questioned and on the information given by him
MO1 series were seized from the rented house of petitioner as per Ext.P2, the
mahazar. Ext.P5 is the statement of petitioner which led to the discovery. PW3
is an attestor in Ext.P2, mahazar. He did not support the prosecution though
admitted signing Ext.P2. PW4, Circle Inspector recorded the statement of PW1
and registered the case. PW5, Head Constable investigated the case.
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Petitioner gave evidence as DW1 and stated that he is residing with his sister in
a rented house. He claimed that he had purchased MOs 1 and 2, ornaments for
his sister. He had shown the cash bill for MOs 1 and 2 to the Circle Inspector.
But the Circle Inspector destroyed the cash bill. He further claimed that MO7,
video cassette of marriage of PW1 was falsely introduced in the case. It is
contended that conviction of petitioner is not legal or proper.
2. The seizure of MOs 1 and 2 from the rented premises occupied by
petitioner is not in dispute and stated by DW1 also. The seizure of MOs 3 to 7
as per Ext.P2 from the very same premises is proved by evidence of PW6.
Petitioner is claiming ownership of MOs 1 and 2. Therefore it is certain that MOs
1 and 2 were in his possession at the time of seizure as per Ext.P2. There is no
evidence to show apart from the evidence of DW1 that MOs 1 and 2 belonged to
him (petitioner). Courts below were not inclined to accept evidence of DW1. In
these circumstances courts below found petitioner guilty. I find no reason to
interfere with that finding.
3. Petitioner is sentenced to undergo rigorous imprisonment for one
year for offence punishable under Section 461, two years for offence punishable
under Section 457 and three years for offence punishable under Section 380 of
the IPC. Petitioner is undergoing imprisonment. It is seen from the details
submitted by the Superintendent of Central Prison, Thiruvananthapuram that
petitioner is undergoing imprisonment in several cases. Having regard to the
facts and circumstances of the case I am inclined to think that sentence awarded
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for offence punishable under Sections 457 and 380 of the IPC can be modified
as rigorous imprisonment for one and a half years each. There is however no
reason to interfere with the sentence awarded for offence punishable under
Section 461 of the IPC.
4. Learned counsel submitted that altogether petitioner has been
convicted and sentenced in twenty cases and that since there is no direction to
run the sentence awarded in those cases concurrently, it is to run consecutively
in view of Section 427 of the Code of Criminal Procedure (for short, “the Code”).
According to the learned counsel, petitioner will have to be in prison for a number
of years on account of that. Learned counsel requested that sentences may be
directed to run concurrently. Learned counsel has placed reliance on the
decision of the Supreme Court in Ammavasai v. Inspector of Police,
Valliyanur [(2009) 9 SCC 749].
5. Going by Section 427 of the Code, when there is a sentence of
imprisonment in separate cases, unless there is specific direction otherwise
such sentence shall run consecutively. As pointed out by counsel no such
direction has been issued in the cases in which petitioner has been sentenced to
undergo imprisonment. Necessarily therefore sentence has to run
consecutively. Now the question is whether in this case this Court can issue a
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direction that the sentences awarded in all other cases shall run concurrently.
According to learned counsel, in the decision referred supra Supreme Court
has issued such a direction.
6. The power which this Court can exercise is under Section 482 of
the Code. But that provision cannot be used against an express bar as held by
the Supreme Court in Madhu Limaye v. State of Maharashtra (AIR
1978 SC 47). A Bench consisting of three Judges held that the power under
Section 482 of the Code cannot be exercised as against an express bar of law
engrafted in any other provisions of the Code. Section 362 of the Code engrafts
an express bar against reviewing or altering a judgment or final order except to
correct a clerical or arithmetical error. In this case, it cannot be said that the
failure of the courts to direct that the sentence shall run concurrently is a clerical
or arithmetical error. There is no challenge to the concluded sentences in those
cases. Therefore invoking Section 482 of the Code those concluded sentences
cannot be reopened in this revision which arises only from one case. That is the
view taken by this Court after referring to all the relevant decisions on the point in
Sukumaran v. State of Kerala (2008 (1) KLT 732). As such the
request of petitioner cannot be allowed.
7. So far as this case is concerned, it is within the power of this Court
to direct that the sentence awarded in this case will run concurrently with any of
the cases in which petitioner is undergoing imprisonment.
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Resultantly, this revision petition is allowed in part to the following extent:
i. Sentence awarded to the petitioner for offences punishable under
Sections 457 and 380 of the IPC is modified as rigorous imprisonment for one
and a half years each.
ii. It is directed that sentence awarded in this case shall among
themselves run concurrently.
ii. It is further directed that sentence awarded in this case shall run
concurrently with the sentence awarded to the petitioner in C.C.No.337 of 1999
of the court of learned Judicial First Class Magistrate, Irinjalakuda. In all other
respects revision petition will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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