SHAJI, S/O. PRABHAKARAN v. STATE OF KERALA REP. BY PUBLIC PROSECUTOR
2017-01-03
B.SUDHEENDRA KUMAR
body2017
DigiLaw.ai
ORDER : The revision petitioner is the first accused in C.C. No.58 of 2010 on the files of the court of the Judicial Magistrate of First Class, Kunnamangalam. The courts below convicted and sentenced the revision petitioner under Sections 454, 380 and 461 I.P.C. 2. The prosecution allegation is that on 10.6.2009 in between 9 am ad 1.30 p.m., the revision petitioner and the other accused in furtherance of their common intention committed lurking house trespass into the house of PW1 and committed theft of MO1 to MO3 gold ornaments, Rs.2,000/- in cash and a mobile phone from the almirah in the said house. 3. Heard. 4. PW1 is the owner of MO1 to MO3 gold ornaments, who identified the said ornaments. MO1 to MO3 were recovered by PW2 pursuant to Ext.P2(a) and P3(a) disclosure statements given by the revision petitioner. PW3 to PW5 and PW7 also supported the evidence regarding the recovery of MO1 to MO3. Thus the evidence on record would clearly prove the offence alleged against the revision petitioner. The learned counsel for the revision petitioner relied on the decision of the Apex Court in Azeez v. State of Kerala [2013(1) KHC 362 (SC)] and argued that when there is no evidence to connect MO1 to MO3 with the commission of the offence, the revision petitioner is entitled to acquittal. In Azeez (supra), the accused persons were acquitted by the trial court on the reason that PW2 therein, who was the owner of the gold ornaments, could not even realise that she had lost the gold chain from her neck till the police came to her house with the accused and the gold chain. However, in this case, PW1 had given Ext.P1 F.I statement before the Police immediately after the incident. There is also evidence regarding the recovery MO1 to MO3 gold ornaments. PW1, who is the owner of the gold ornaments clearly identified MO1 to MO3 and stated that the said ornaments were the ornaments stolen from her house. Having gone through the facts of the case, there can be no dispute that the facts in Azzez (supra) are different from the facts in this case. Therefore, the above said decision has no application to the facts of the case in hand. 5.
Having gone through the facts of the case, there can be no dispute that the facts in Azzez (supra) are different from the facts in this case. Therefore, the above said decision has no application to the facts of the case in hand. 5. The courts below correctly appreciated the oral and documentary evidence adduced by the prosecution and concurrently found that the revision petitioner committed the above said offences, repelling the contentions of the revision petitioner. No material has been brought to the notice of this Court to indicate that the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner committed the offence under Sections 454, 380 and 461 I.P.C., does not warrant any interference by this court. 6. As regards the sentence, the learned counsel for the petitioner has pleaded for leniency. No previous conviction has been proved against the revision petitioner. Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the courts below can be modified and reduced to rigorous imprisonment for six months each and a fine of Rs.2,000/- (Rupees two thousand only) each and in default to simple imprisonment for 15 days each for each of the offences under Sections 454, 380 and 461 I.P.C., to secure the ends of justice. Accordingly, I order so. The revision petitioner is entitled to set off under Section 428 Cr.P.C. for the period of his detention in connection with this case. In the result, this revision petition stands allowed in part as above.