ABDUL GAFOOR Vs. STATE OF KERALA

JUDGEMENT

(1.) The Revision Petitioner is the accused in C.C. No. 150/2008 on the files of the Judicial First Class Magistrate Court-I, Manjeri, as well as the appellant in Crl. Appeal No. 98/2010 of the Additional Sessions Judge (Ad hoc)-III, Manjeri. He was prosecuted for the offence punishable under S. 379 of the Indian Penal Code. After trial, the learned Magistrate found him guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 5,000/-, in default of payment of fine, he shall undergo simple imprisonment for a further period of three months. Though the Revision Petitioner had preferred an appeal, the Appellate Court also confirmed the conviction and sentence. This Revision Petition is filed challenging the concurrent findings of conviction entered and sentence imposed on the revision petitioner by the courts below. Prosecution case is that a motor cycle bearing No. KRP 6959 worth Rs. 10,000/-, belongs to the brother of PW 5 who is working at Bangalore, was being used by PW 5 for his personal use. On 8.2.2007, PW 5 visited the District Hospital, Manjeri, after parking the above motor bike in the premises of the said hospital. When he came back at 6 P.M., the bike was found stolen. According to the prosecution, it was the Revision Petitioner/Accused who committed the theft of the above motor cycle from the premises of the said hospital and thereby he committed the offence punishable under S. 379 of the Indian Penal Code.

(2.) In trial, PW 1 to PW 7 were examined and Exts. P1 to P7 were marked for the prosecution. No evidence was adduced by the Revision Petitioner/Accused. PW 1 is the Sub Inspector of Police of the Perinthalmanna Police Station, who arrested the accused and seized the motor cycle. He deposed that on 8.2.2007 at about 2 A.M., he saw the Revision Petitioner/Accused in front of a service station at Perinthalmanna, riding a motor cycle along the road in a suspicious circumstance. So, he arrested the Revision Petitioner, seized the motorcycle and F.I.R. was prepared under S. 41(1)(d) of the Code of Criminal Procedure. Thereafter, on interrogation, it was revealed that the Revision Petitioner was the person who committed the theft of PW 5's motor cycle. Then PW 1 filed Ext. P3 report before the Judicial First Class Magistrate, Perinthalmanna incorporating S. 379 of Indian Penal Code. Since the place of occurrence alleged in this case comes within the jurisdiction of the Manjeri Police Station, the case records were transferred to Manjeri Police Station for further action. PW 7 Sub Inspector of Police, Manjeri Police Station prepared the Scene Mahazar and conducted the investigation in this case. PW 6 is the then Sub Inspector of Police, Manjeri. He has deposed that he laid the final report against the Revision Petitioner/Accused.

(3.) The Revision Petitioner/Accused entered appearance and pleaded not guilty. After considering the oral and documentary evidence, the court below found the Revision Petitioner/Accused guilty of the offence punishable under S. 379 of Indian Penal Code. The court below mainly relied on the evidence of PW 1 Sub Inspector of Police, Perinthalmanna, PW 2 Head Constable who accompanied PW 1 at the time of arrest and seizure of the vehicle, PW 5 the person who was in possession of the motor vehicle at the time of theft and relied on Exts. P1 Seizure Mahazar, P2 F.I.R. and P5 F.I.R. in Crime No. 140/2007 of Manjeri Police Station. The arrest and seizure of the vehicle from the possession of the Revision Petitioner/Accused were proved by PW 1 and PW 2. PW 1 deposed that while PW 1 was conducting patrol duty, along with PW 2, the Revision Petitioner/Accused was arrested with the above motorcycle, seized the motor bike under Ext. P1 Seizure Mahazar and thereafter registered Ext. P2 F.I.R. against the Revision Petitioner/Accused under S. 41(1)(d) of the Code of Criminal Procedure. It is also proved that at the time of arrest and seizure, no document relating to the vehicle was found in possession of the Revision Petitioner/Accused. He was unable to account the possession of the vehicle and it is also pertinent to note that the time of arrest was 2 A.M. On suspicion, after arrest when he was interrogated, he admitted that the vehicle is one which belongs to PW 5 and regarding the possession, the specific case advanced by the Revision Petitioner/Accused, as defence contention, is that PW 5 had given the bike to the Revision Petitioner/Accused, through one Sheriff in connection with a financial transaction. But PW 5 is seen examined in this case and PW 5 deposed that he had no transaction with the Revision Petitioner/Accused and the vehicle was found missing on 8.2.2007 from the premises of District Hospital, Manjeri and the vehicle was parked in the premises of the hospital when it was stolen away. Thus, the arrest and seizure were proved by the oral evidence of PW 1 and PW 2 and the missing of the vehicle from the possession of PW 5 was proved by PW 5 himself.