T.K. Ibrahim S/o Chadayan Abdulla v. State rep. by Public Prosecutor, High Court of Kerala, Ernakulam

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ``` CRL.REV.PET NO. 4256 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 29.07.2023 IN C.C.NO.293/1999 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD AND JUDGMENT DATED 01.07.2006 IN CRA 334/2003 OF ADDITIONAL SESSIONS JUDGE (ADHOC) III, KASARAGOD. ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` T.K.IBRAHIM S/O.CHADAYAN ABDULLA, AGED 55 YEARS,THEKKEVALAPPU, CHERUVATHUR, KASARAGOD DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI SANAL P.RAJ- PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON 27.11.2023 DELIVERED THE FOLLOWING: ``` 2 Crl.R.P.No.4256/2006 **G.GIRISH, J. --------------Crl.R.P.No.4256 of 2006 -----------------------------Dated this the 27[th] day of November, 2023 -------------------------------------------------** ## **O R D E R** The conviction of the petitioner for the offence under Sections 457 and 380 I.P.C and the sentence of rigorous imprisonment for one year and fine Rs.5,000/- imposed by the Chief Judicial Magistrate, Kasaragod, and upheld by the Additional Sessions Judge (Adhoc) III, Kasaragod, are under challenge in this revision. 2. The prosecution case is that, on 03.11.1998 at about 2 a.m, the petitioner/accused criminally trespassed into the residential house of PW1 by bending the iron bars of the window, and thereafter committed theft of a torch light and wristwatch worth Rs.700/- from the bedroom of that house. 3. In the trial conducted before the Chief Judicial Magistrate Court, Kasaragod, 7 witnesses were examined from 3 Crl.R.P.No.4256/2006 the part of the prosecution as PW1 to PW7, and three documents were marked as Exts.P1 to P3. The stolen items were marked as MO1 and MO2. The petitioner/accused did not opt to adduce any defence evidence. After the evaluation of the evidence, and hearing both sides, the learned Chief Judicial Magistrate found the petitioner guilty of Sections 457 and 380 I.P.C and convicted him thereunder. The petitioner was accordingly sentenced to rigorous imprisonment for one year and fine Rs.5,000/- under Section 457 I.P.C and rigorous imprisonment for one year and fine Rs.5,000/- under Section 380 I.P.C. 4. Though the petitioner preferred appeal against the above conviction and sentence before the Sessions Court, Kasaragod, the learned Additional Sessions Judge (Adhoc) III, Kasaragod who heard the appeal, declined to interfere, and confirmed the findings of the trial court. It is aggrieved by the above concurrent verdicts of the courts below, that the petitioner is here with this revision petition. 5. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 4 Crl.R.P.No.4256/2006 6. The case records would reveal that the petitioner was caught shortly after the commission of the crime, by PW4 when he flashed torchlight to the bedroom of the house of PW4. Soon, PW1 and the other persons of that locality gathered there and found the petitioner carrying the torchlight and wristwatch he had stolen from the house of PW1 at about 2 a.m on 03.11.1998. The police were immediately alerted, and further proceedings were initiated after handing over the petitioner to the Kasaragod police. The evidence adduced by PW1 and PW4 with regard to the above incident, does not suffer from any material inconsistency which would render it unacceptable. It is seen from the records that the evidence adduced by the prosecution through the other witnesses, and the documents marked as Exts.P1 to P3 are in tandem with the evidence of PW1 and PW4 pointing to the detection of the offence and the apprehension of the petitioner. The petitioner could not point out any apparent illegality or manifest irregularity warranting the interference of this Court in revision in respect of the conviction of the petitioner for the offence under Sections 457 and 380 I.P.C. The proposition of law upon the scope of 5 Crl.R.P.No.4256/2006 interference in revision, is well settled by a catena of decisions of the Hon'ble Supreme Court. ## 7. In _**State of Kerala v. Jathadevan Namboodiri : AIR 1999 SC 981**_ , the Hon'ble Supreme Court held as follows: _Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice._ ## 8. In _**Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Anr : 2015 (3) SCC 123** ,_ it has been held by the Hon'ble Supreme Court as follows: _Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction_ . 6 Crl.R.P.No.4256/2006 ## 9. Referring the above dictums, the Apex Court has observed in _**Kishan Rao v. Shankargouda : 2018 (8) SCC**_ _**165**_ as follows: _Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is nonconsideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14:_ _”14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections_ 7 Crl.R.P.No.4256/2006 _397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”_ 10. Therefore, there is absolutely no reason to interfere with the findings of courts below leading to the conviction of the petitioner for the commission of offences under Sections 457 and 380 I.P.C. However, taking into account the fact that the petitioner was aged 52 years at the time of commission of offence, more than a quarter of a century ago, I feel that the sentence of rigorous imprisonment for one year imposed by the courts below has to be modified to simple imprisonment for three months, while limiting the fine imposed by the courts below to Rs.5000/-. 8 Crl.R.P.No.4256/2006 In the result, the appeal is allowed in part as follows: - (i) The conviction of the petitioner for commission of offence under Sections 457 and 380 I.P.C is confirmed. - (ii) The sentence imposed by the courts below is modified to simple imprisonment for three months and fine Rs.5,000/- (Rupees five thousand only) for the offence under Section 457 I.P.C and simple imprisonment for three months for the offence under Section 380 I.P.C. The period of substantial term of sentence of imprisonment shall run concurrently. - (iii) In default of payment of fine of Rs.5,000/-, the petitioner shall undergo simple imprisonment for a further term of three months. - (iv) The petitioner will be entitled for set-off as per law for the period of custody already undergone in this case. Transmit a copy of this order along with the case records to the trial court for expeditious enforcement of the sentence. (sd/-) ## **G.GIRISH, JUDGE** jsr