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2006 DIGILAW 693 (KER)

Salim v. State of Kerala

2006-10-12

R.BASANT

body2006
Judgment :- This application is filed to condone the delay of 5237 days in filing the Revision Petition. The Revision Petition in turn challenges a concurrent verdict of guilty conviction and sentence in a prosecution under section 457, 380 I.P.C. 2. The delay is gross. The leaned Public Prosecutor has raised serious objections against the prayer for condonation of delay. I am not satisfied that the delay deserves to be condoned. 3. However, I am proceeding to consider the revision on merits in my anxiety to ensure that the failure to condone the delay should not result in any miscarriage of justice. Records have been called for and the counsel has been heard at length. 4. The petitioner faces a sentence of rigorous imprisonment for 6 months and 4 months for the offence punishable under section 457, 380 of I.P.C. Sentences were directed to run concurrently. 5. The crux of the allegations of the accused/petitioner is that on the night of 18.06.88 he along with another had broken open into the arrack shop of PW1 and had committed theft of articles including MO1 table fan. 6. The crime was detected by PW6 who was on patrol duty along with PW2, another police official. On the same night (18.06.88 at about 2.15 am) PWs 3 and 6 allegedly found the petitioner herein along with a co accused (who was acquitted by the trial court) moving around suspiciously in Alappuzha town. PWs5 and 6 attempted to apprehend both the accused but the co accused took to his heels and could not be apprehended. The petitioner was apprehended. He had MO1 table fan in his possession. He was unable to account for the possession of the MO1. This aroused suspicion. He was arrested and interrogated. He allegedly made a confession statement about the theft which was committed by him in the shop of PW1. Ext.P5 is the relevant portion of the confession statement. PW6 on the basis of Ext.P5 allegedly went to shop of PW1 and confirmed that theft had taken place there. On the next morning PW1, when he came to his shop realised that theft had taken place. He identified MO1 which was seized by the police. PW6 completed the investigation and filed charge sheet against the petitioner and the co accused. 7. Cognizance was taken by the learned Magistrate. On the next morning PW1, when he came to his shop realised that theft had taken place. He identified MO1 which was seized by the police. PW6 completed the investigation and filed charge sheet against the petitioner and the co accused. 7. Cognizance was taken by the learned Magistrate. Consequent to the plea of not guilty raised by the petitioner the prosecution examined PWs 1 to 6 and proved Exts. P1 to P5. PW1 is the owner. PW2 is an attestor to Ext.P1 scene mahazar describing the scene. PW3 and PW6 are the police officials who allegedly apprehended and effected the arrest of the petitioner. Ext. P2 is the seizure mahazar under which MO1 was seized. PW5 is an attestor to Ext.P2 seizure mahazar. He turned hostile to the prosecution but admitted his signature in Ext.P2. Ext. P3 is the F.I.R. and Ext.P4 the report submitted by PW6 to the court. 8. The accused took up a defence of total denial. According to him he was not arrested under the circumstances explained by PW3 and PW6. He had allegedly picked up a quarrel with a shop keeper. The said shop keeper complained and the police had come and arrested him. He has no specific case of in any stage of the trial that it was PW1 with whom he had picked up a quarrel. No defence evidence was adduced. 9. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing the guilt of the accused. Accordingly they proceeded to pass the concurrent judgments. As stated earlier the co accused was found not guilty and acquitted by the trial court. 10. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner only submits that the version of PW3 and PW6 should not have been accepted and acted upon. No other contention was raised. PWs 3 and 6 are police officials. It is part of their duty to detect offences and bring the offenders to book. I find no reason to disbelieve PWs 3 and 6. I have been taken through the cross examination of PWs 3 and 6. There is no semblance of a suggestion as to why PW3 and 6 should foist a false case against the petitioner. It is part of their duty to detect offences and bring the offenders to book. I find no reason to disbelieve PWs 3 and 6. I have been taken through the cross examination of PWs 3 and 6. There is no semblance of a suggestion as to why PW3 and 6 should foist a false case against the petitioner. Though a vague contention is raised that he was arrested at the instance of a shop keeper, there is no attempt to explain who that shop keeper is and why the police at the instance of such alleged shop keeper should raise such a serious allegation against the petitioner. Suffice it to say that the evidence of PW1, PW3 and PW6 are found to be absolutely worthy of credence. It is true that PW5 turned hostile to the prosecution. But the contents of the contemporaneous seizure mahazar as also the contents of Ext.P3 F.I.R. convincingly support the version of PW3 and PW6. The hostility of PW5 cannot hence deliver any advantage to the petitioner. 11. No other contentions are raised. I do not in these circumstances find any merit in the challenge raised against the impugned concurrent verdict of guilty and conviction. 12. Coming to the question of sentence I note that maximum leniency has been shown in favour of the petitioner. The sentences have been directed to run concurrently. Set off has been allowed also. I find no reason to further reduce or modify the sentence imposed. This Revision petition as well as the application for condonation are in these circumstances dismissed.