Sharafudheen vs Station House Officer

P. Ubaid, J.—The revision petitioner herein brought this revision, challenging the conviction and sentence against him under Sections 457 and 380 IPC, while undergoing the said sentence in the Central Prison, Kannur. Delay in filing the revision was condoned by the Court and the revision petitioner was defended by a counsel appointed by the State Brief.

The prosecution case against him is that at about 1.30 am on 6.3.2010 he trespassed into the Aggrasala of Vellarkulangara Bhagavathy Temple at Kuryankadavu by braking open the door of the temple and committed theft of some articles and an amount of 500/-. He was arrested in suspicious circumstances by the police, and on such arrest a crime was also registered under Section 41 of the Code of Criminal Procedure. When interrogated in custody in the said crime, the accused gave some statement which lead to the recovery of properties involved in this crime, registered in the Payyannur Police Station, on the complaint given by a person-in-charge of the temple. The properties recovered by the police at the instance of the revision petitioner were later identified by the manager of the temple as the properties stolen from the temple. Accordingly, the police completed the investigation and submitted final report in the court.

The revision petitioner pleaded not guilty to the charge framed against him by the trial court (Judicial First Class Magistrate Court, Payyannur) under Sections 457 and 380 IPC. The prosecution examined ten witnesses in the trial court and marked Exts. P1 to P7. The properties identified during trial were marked as MO1 to MO3. These are some vessels stolen from the temple. The accused did not adduce any evidence in defence during trial.

On an appreciation of the evidence adduced by the prosecution, the trial court found the revision petitioner guilty under Section 457 and 380 IPC. On conviction he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of 5,000/- under Section 457 IPC, and to undergo rigorous imprisonment for two years and to pay a fine of 5,000/- under Section 380 IPC by judgment dated 13.4.2012 in C.C. No. 245/2011.

Aggrieved by the conviction and sentence, the revision petitioner approached the Court of Session, Thalassery with Crl. A (Jail) No. 331/2012. In appeal the learned Additional Sessions Judge (Adhoc-II) confirmed the conviction and sentence. While undergoing sentence in jail, the accused preferred this revision through the Superintendent of the Central Jail.

On hearing the learned counsel for the revision petitioner and the Public Prosecutor, I find no ground or reason to interfere in the findings made by the courts below or in the conviction made by the courts below. PW 1, the Circle Inspector has given evidence proving the arrest of the accused in suspicious circumstances, and also proving recovery of the stolen articles involved in this case. These articles identified during trial as MO1 to MO3 were recovered by the Circle Inspector under Section 27 of the Indian Evidence Act, on the basis of the statements given by the revision petitioner. This recovery stands well proved by evidence. Pws 2 and 3 are the persons attached to the temple where the alleged theft was committed. These two witnesses well identified the properties during trial. They are definite that MO1 to MO3 are articles stolen from their temple. The revision petitioner has no explanation how he came in possession of these properties belonging to the temple. I find no reason to disbelieve the evidence given by PW 1, regarding the arrest of the accused and recovery of the stolen articles, or the evidence of PW 2 and PW 3, identifying the stolen articles. It is true that some independent witnesses turned hostile during trial. This is not at all a ground to disbelieve what the Circle Inspector said proving the arrest and recovery. I find that the prosecution has well proved the offence against the revision petitioner, and that he was rightly convicted by the court below under Section 457 and 380 IPC.

Of course the two offences alleged against the revision petitioner were committed in the same transaction. The sentence imposed under Section 457 IPC is imprisonment for three years and the sentence under Section 380 IPC is imprisonment for two years. The courts below have not made a specific direction that the two sentences shall run concurrently. This means that the two sentences will have to run consecutively. In the special circumstances, I feel that the two sentences can run concurrently. Now it is submitted that the accused has already undergone sentence for 2 = years. With the above modification in sentence that the two sentences shall run concurrently, this revision petition can be disposed of.

In the result, this revision petition is disposed of as follows, without being admitted to files.

a) The conviction made by the courts below against the revision petitioner under Sections 457, 380 will stand confirmed in revision.

b) The sentence imposed by the courts below will also stand confirmed subject to a modification that the two sentences shall run concurrently.

c) If the revision petitioner has already undergone sentence for a total period of three years, inclusive of the remissions obtained by him under the Rules, he can very well be released, if not required in any other case.

d) The revision petitioner will get the benefit of set off inclusive of the period of remand undergone in this crime.

Forward a copy of this order immediately to the Superintendent of the Central Prison, Kannur.