IN RE: KUMARAN ALIAS NARAYANASAMI Vs. STATE

JUDGEMENT

(1.) THE appellant, Kumaran alias Narayana swami, seeks to question the correctness or the propriety of his conviction under S. 379, I. P.C. Briefly, the facts are: P.W. 1 is the owner of the two cows which were the subject matter of the theft committed by this appellant. His evidence is that he was residing in his land and his cows were tethered next to his house. About four months back at about 8 p.m. tethered his cows in the shed and went to sleep. On the next morning he fond the cows missing. The value of the cows, according P.W. 1 is Rs. 200. He says that he purchased them in Budhan Sandal. He could not traos the cows in the surrounding place. About 20 days later, he learnt that the cows were at the Namakkal Police station. He went there and he was taken to the Munsif's house where he identified his cows as his own. He took delivery of the cows. The only suggestion made to P.W. 1 is that the cows do not belong to him. Most of his testimony goes unchallenged. His evidence is corroborated by P.W. 2. The karnam, who was going on 3rd July 1969, (Thursday) to the mill of one Kathamuthu. He found the appellant bargaining to sell the two cows to one Veluswami, P.W. 3. P.W. 3 suspected the appellant and asked P. W. 2 to make an enquiry. P.W. 2 enquired the appellant who gave some prevaricating answers. But, ultimately, the appellant admitted that the cows were stolen by him and that he belonged to Thumbal village. The appellant was taken to the police station by P. Ws. 2 and 4. P.W. 2 gave the report (Ex. P. 1) to the police. The only cross examination of this witness is that when he caught the appellant, he did not have the cows then. So far as the admission made by the appellant that the cows were stolen by him is concerned, it was not challenged. Such an admission has been spoken to by P.W. 3 and also P.W. 4. The testimony of P. Ws. 3 and 4 about the admission made by the appellant that the cows, MO. 1 series, were stolen has not been challenged in cross -examination. In fact, P.W. 6 states that P W. 1 identified the cows as his own. Even this evidence went unchallenged. P.W. 7 speaks to the complaint given by P.W. 1 on 27th July 1969 stating that his cows were stolen. He speaks to the identification of the cows in P.W. 6's house by P.W.1. There is hardly any cross examination of the testimony of this important prosecution witness. In his statement under S. 342, Crl P.O., the appellant claimed that the cows belonged to Molayan, D.W. 1. But D.W.1 disowned ownership of the two cows, M.O.1 series, the evidence of the prosecution witnesses has been accepted by the trial Sessions Judge, and I have no hesitation in accepting the testimony of these witnesses. I held that the offence under S. 379 I.P.C. is amply and satisfactorily proved against the appellant.

(2.) MR . Vhillaivillalan, amicus curiae, argued that although it is a second offence and that he has already suffered rigorous imprisonment for four years for the committing of the first offence, the punishment need not be inflicted on the appellant to the extent of 41/2 years. He cited the authority In Muniswami In re. : (1947) 1 M.L.J. 336 Wherein Yanya All. J. held:

(3.) TAKING this proposition of law into consideration and also considering the comparatively insignificant value of the two cows to be Rs. 200, I consider that a period of rigorous imprisonment for one year would meet the ends of justice and accordingly I reduce the period of rigorous imprisonment awarded against the appellant to one year. The conviction is confirmed, and subject to the modification in the sentence, the criminal appeal is dismissed.