Jolly vs State of Kerala

R. Basant, J.—This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sections 454 and 380 I.P.C. The petitioner was sentenced to R.I. for a period of 4 years u/s 380 I.P.C. No separate sentence is awarded u/s 454 I.P.C. Set off was allowed.

The prosecution alleged that the petitioner had committed theft of MO1 series from the premises of PW 1, President of a society, at 10 a.m. on 12.6.2000. The petitioner had allegedly committed theft in furtherance of the common intention which he shared with the second accused. The co-accused/A2 was found not guilty and acquitted by the trial court.

PW 1 had lodged Ext. P1 complaint. The petitioner was arrested by PW 11. On his interrogation, he furnished information about the disposal of MO1 series to PW 5. Under Ext. P2 seizure mahazar MO1 series other than the ''Adakallu'' were recovered by PW 11 from PW 5. PW 5 had sold the ''Adakallu'' to PW 7 and under Ext. P4 seizure mahazar the same was also recovered by PW 11. In the course of investigation it was revealed that the stolen articles were transported by the accused from the shop of PW 3 to the premises of PW 5 in the autorikshaw of PW 2. It was further revealed that earlier the articles were transported in the autorikshaw of PW 4 to the shop of PW 3 and an attempt was made to sell the same to PW 3. PW 3 did not purchase the same and hence they were taken to PW 5. Ext. P5 is the F.I.R. registered on the basis of Ext. P1. Ext. P3 is the scene mahazar. PW 8 is an attester to Ext. P3 scene mahazar. PW 10 is the officer who registered the F.I.R.

Investigation commenced with Ext. P1 and culminated with the final report submitted by PW 11. PWs. 1 to 11 were examined and Exts. P1 to P5 were also marked. The accused took up a defence of total denial.

The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offences punishable under Sections 454 and 380 I.P.C. against the petitioner. Accordingly they proceeded to pass the impugned concurrent judgment.

Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned Counsel for the petitioner does not strain to assail the verdict of guilty and conviction on merits. He only prays that leniency may be shown on the question of sentence.

Having gone through the impugned concurrent judgments, I am satisfied that the verdict of guilty and conviction are absolutely justified and unexceptionable. In the absence of challenge on any specific ground against the verdict of guilty and conviction, I am satisfied that it is not necessary for me to advert to the facts in any greater detail in this order.

The theft of MO1 series from the premises of PW 1 stands established satisfactorily by the evidence of PW 1 corroborated by Ext. P1 F.I. statement. The evidence of PWs. 2 to 5 show clearly how the accused had dealt with the stolen articles after the commission of the crime and before they were recovered by PW 11 under Exts. P2 and P4. The evidence of PW 11 shows how he received information when the accused was interrogated after his arrest and he confessed to the crime. Satisfactory evidence is thus available before court to indicate the complicity of the petitioner.

The learned Counsel for the petitioner prays that leniency may be shown on the question of sentence. Allegations are serious. It is evident that the petitioner is involved in other crimes also. The petitioner has been sentenced to undergo R.I. for a period of 4 years. The sentence imposed has been directed to run consecutively with the sentences imposed in other cases. The learned ` for the petitioner submits that the petitioner is a polio afflicted person. He has subsequently suffered an accident. Leniency may be shown, it is prayed.

Taking all the relevant circumstances into account, I am satisfied that leniency can be shown on the question of sentence and the substantive sentence of imprisonment imposed u/s 380 I.P.C. can be reduced to R.I. for a period of 2 years. No separate sentence has been imposed u/s 454 I.P.C. by the court below.

In the result:

(a) This revision petition is allowed in part.

(b) The impugned verdict of guilty and conviction are upheld.

(c) But the sentence imposed is modified and reduced to R.I. for a period of 2 years. The impugned judgment is upheld in all other respects.

Communicate copy of the order to the court below forthwith. Necessary revised warrant shall be issued by the court below.