Biju @ Jimmy Joseph vs State Of Kerala
2023 Latest Caselaw 10727 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE C.S.DIAS
    THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
                      CRL.REV.PET NO. 300 OF 2011
       AGAINST THE JUDGMENT IN CRA 180/2007 OF THE COURT OF
                       SESSION,MANJERI DIVISION
  CC 126/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MALAPPURAM
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:

          BIJU @ JIMMY JOSEPH
          CHEMBAKASSERI HOUSE, PULLIPADAM, MAMPAD,, MALAPPURAM
          DISTRICT.

          BY ADV SRI.JACOB SEBASTIAN



RESPONDENT:

          STATE OF KERALA
          PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM,
          REPRESENTING THE SUB INSPECTOR OF, POLICE, MALAPPURAM
          POLICE STATION.

              SMT. NIMA JACOB, PUBLIC PROSECUTOR


     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.R.P NO.300 OF 2011                 2




           Dated this the 19th day of October, 2023

                                 ORDER

The revision petition is filed challenging the legality

and correctness of the judgments in Crl.Appeal

No.180/2007 of the Court of Sessions, Manjeri Division

(Appellate Court), confirming the judgment in C.C.

No.126/2005 of the Court of the Judicial First Class

Magistrate, Malappuram(Trial Court), holding the

revision petitioner/first accused guilty for the offence

under Section 379 r/w 34 of the Indian Penal Code (in

short, 'I.P.C') and convicting and sentencing him for the

above offence.

Factual narrative

2. The prosecution case is that, on 9.10.2003,

between 10 a.m and 1 p.m., the accused in furtherance

of their common intention committed theft of a

motorcycle worth Rs.43,000/- belonging to PW1, which

was parked near the Service Co-operative Bank,

Makkaraparamba and thereby the accused committed the

offences under Section 379 r/w 34 of the IPC. The second

accused absconded and the case against him was split up

and refiled as C.C. No.1401/2006.

3. The first accused appeared and denied the

substance of accusation read over to him. In the trial,

the prosecution had examined PWs1 to 8 and marked in

evidence Exts.P1 to P4. The first accused denied the

incriminating circumstances appearing against him in

the evidence in the questioning under Section 313 of the

Code of Criminal Procedure (in short, 'Code')

4. The learned Magistrate, after analysing the

materials placed on record, found the first accused guilty

and convicted and sentenced him to undergo simple

imprisonment for two years for the offences under

Section 379 r/w 34 of the IPC.

5. Aggrieved by the said judgment, the first accused

filed Crl.Appeal No.180/2007 before the Appellate Court.

6. The Appellate Court, after re-appreciating the

materials placed on record, by the impugned judgment,

confirmed the conviction and sentence imposed by the

Trial Court.

7. It is assailing the concurrent judgments passed by

the courts below, the present revision petition is filed.

8. Heard; Sri.Jacob Sebastian, the learned counsel

appearing for the revision petitioner/first accused and

Smt.Nima Jacob, the learned Public Prosecutor appearing

for the respondent-State.

9. Is there any illegality, impropriety or irregularity

in the judgments of the courts below?

10. The prosecution case is that, on 9.10.2003, PW1

had parked his motorcycle near his Bank. At about,

1.30 p.m., he found his bike was missing. He immediately

lodged Ext.P1 FI statement before the Sub Inspector of

Police, Malappuram. Even though an investigation was

ordered, subsequently a refer report was filed before the

Magistrate. Subsequently, the first accused was arrested

by the Manjeri Police on the allegation of committing an

offence under the Arms Act. According to PW4, his son

(PW6) is a friend of the first accused. The first accused

had borrowed an amount Rs.30,000/- from PW4 and had

handed over the motorcycle to him. On seeing a

newspaper report regarding the arrest of the first

accused, he immediately alerted the Police regarding

the entrustment of the motorcycle by the first accused.

Immediately, the Sub Inspector of Police went to the

house of PW4 and seized the motorcycle.

11. PW5, an employee of PW4, witnessed the police

seizing the motorcycle from PW4's house and attested

Ext.P3 seizure mahazar. The motorcycle, which was

taken to the Police Station, was identified by PW1 and the

same was released to him as per Ext.P2 kychit.

12. It is on the basis of the oral testimonies of PWs

1, 4 and 6 - the sterling witnesses - the courts below

convicted and sentenced the first accused. In addition to

their testimonies, PWs2 and 3 were also examined to

prove that they were aware of the fact that PW1's

motorcycle was stolen. PWs7 and 8 are the attestors to

Ext.P4 scene mahazar.

13. After bestowing my anxious consideration to the

materials placed on record, I do not find any error,

illegality or impropriety in the courts below finding that

that the accused has committed the above offences.

Thus, I confirm the conviction of the revision

petitioner/first accused.

14. Now coming to the question of sentence.

15. The learned counsel appearing for the first

accused/revision petitioner argued that the first accused

was only aged 25 years at the time of the incident. He has

already undergone imprisonment for a period of more

than three months as an under-trial prisoner. It is not

discernible as to whether the accused was remanded to

judicial custody after the impugned judgments. The first

accused is the sole bread-winner of his family and a

lenient view may be taken in the matter of sentencing

the first accused, especially since he has no criminal

antecedents.

16. Taking into consideration the fact that the

incident occurred as early as on 9.10.2003 i.e., exactly

two decades back and the first accused/revision

petitioner has repented for the offences committed by

him and now he is 45 years of age, I am of the view that

a lenient view can be taken in the matter and sentencing

the revision petitioner/first accused to undergo simple

imprisonment for a period of one year, would meet the

ends of justice. The first accused would also be entitled

to set off.

In the result,

(i) The revision petition is partly allowed;

(ii) The conviction imposed on the revision

petitioner by the courts below is confirmed;

(iii) The revision petitioner is sentenced to undergo

simple imprisonment for a period of one year under

Sec.379 r/w Sec.34 of the I.P.C. The revision petitioner is

entitled to set off;

(iv) The first accused is directed to appear before

the Trial Court on or before 20.12.2023 to undergo the

sentence, if he has already not undergone the sentence.

(v) In case of failure of the revision petitioner/first

accused to appear before the Trial Court, the learned

Magistrate shall execute the sentence in accordance with

law.

(vi) The execution of the sentence shall stand

deferred till 19.12.2023.

(viii)The Registry is directed to forward a copy of this

order to the Trial Court for compliance.

SD/-

C.S.DIAS, JUDGE

rmm19/10//2023