Moncy Thomas vs State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1343421
CourtKerala High Court
Decided OnApr-26-2023
Case NumberCrl.Rev.Pet/685/2003
JudgeHonourable Mr. Justice a.Muhamed Mustaque
AppellantMoncy Thomas
RespondentState of Kerala
Excerpt:
crl. rev. pet. 685 of 2003 1in the high court of kerala at ernakulampresent the honourable mr. justice a.muhamed mustaque wednesday, the 26th day of april 2023 / 6th vaisakha, 1945 crl.rev.pet no. 685 of 2003 against the order/judgmentcc 71/1997 of judicial magistrate of first class - i, ettumanur cra 63/1999 of additional sessions court (special court), kottayam / i additional mact, kottayamrevision petitioner/appellant/accused: moncy thomas aged 1 years thoovankal house, valarmangalam kara,, chengannur. by adv sri.george sebastian respondent/complainant: state of kerala rep. by public prosecutor, high court of kerala,, ernakulam. by sr.pp., adv. p.g. manu this criminal revision petition having come up for admission on 26.04.2023, the court on the same day delivered the following: crl. rev. pet. 685 of 2003 2a.muhamed mustaque , j.=========================== crl. rev. pet. 685 of 2003 ============================ dated this the 26th day of april, 2023judgmentthe revision petitioner has been convicted for an offence under section 379 of the indian penal code (for short, ipc). the sentence is to undergo one year imprisonment.2. the revison petitioner was chargesheeted along withother accused for the above offence on an allegation that the first accused snatched away a portion of gold ornaments of pw 2 weighing 7.5 grams and handed over to the third accused, who is the revision petitioner. the third accused apparently pledged that gold chain and obtained its value. in view of the common intention, accused nos. 1 and 3 were convicted for the offence under section 379 of ipc and accused no.2 appears to be absconding.3. the learned counsel for the revision petitioner argued in extenso and submitted that there was absolutely noevidence to show that the offence was committed in furtherance of a common intention and, he has been convicted based on a recovery under section 27 of the evidence act. it is submitted that, at the best, the revision petitioner can be crl. rev. pet. 685 of 2003 3termed as a bonafide purchaser of gold ornaments and he can be only proceeded for the offence under section 411 of ipc and for that, there must be evidence to show that he has a dishonest intention to receive and retain stolen property. it is further submitted that in the absence of any evidence showing that he had a dishonest intention to retain the stolen property, he cannot be convicted even for the offence under section 411 of ipc.4. the learned public prosecutor on the other handsubmitted that the past acquaintance of revision petitioner with the second accused clearly would establish that they had a common intention to commit the offence.5. the revisional court need to visit the finding of factsonly if there is a perversity in appreciation of evidence. on a perusal of the order and other materials, i am of the firm view that the conclusion arrived by both the courts was based on proper appreciation of the evidence and it warrants no interference. however, taking note of the fact that the revision petitioner has now attained an age of 54, and the offence was committed 27 years ago and taking a lenient view, the sentence is modified. it is to be noted that he was already incarcerated for seven days during investigation stage. keeping that in mind, the sentence is modified to payment of fine of rs.10,000/- whichcrl. rev. pet. 685 of 2003 4 shall be paid within a period of two months. on default, he has to undergo imprisonment for one month. the crl.rev.pet is disposed of as above. sd/- a.muhamed mustaque judge sbk/-
Judgment:

Crl. Rev. Pet. 685 of 2003 1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 26TH DAY OF APRIL 2023 / 6TH VAISAKHA, 1945 CRL.REV.PET NO. 685 OF 2003 AGAINST THE ORDER/JUDGMENTCC 71/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANUR CRA 63/1999 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT), KOTTAYAM / I ADDITIONAL MACT, KOTTAYAM

REVISION PETITIONER/APPELLANT/ACCUSED: MONCY THOMAS AGED 1 YEARS THOOVANKAL HOUSE, VALARMANGALAM KARA,, CHENGANNUR. BY ADV SRI.GEORGE SEBASTIAN RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY SR.PP., ADV. P.G. MANU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. Rev. Pet. 685 of 2003 2

A.MUHAMED MUSTAQUE , J.

=========================== Crl. Rev. Pet. 685 of 2003 ============================ Dated this the 26th day of April, 2023

JUDGMENT

The revision petitioner has been convicted for an offence under Section 379 of the Indian Penal Code (for short, IPC). The sentence is to undergo one year imprisonment.

2. The revison petitioner was chargesheeted along with

other accused for the above offence on an allegation that the first accused snatched away a portion of gold ornaments of PW 2 weighing 7.5 grams and handed over to the third accused, who is the revision petitioner. The third accused apparently pledged that gold chain and obtained its value. In view of the common intention, accused Nos. 1 and 3 were convicted for the offence under Section 379 of IPC and accused No.2 appears to be absconding.

3. The learned Counsel for the revision petitioner argued in extenso and submitted that there was absolutely no

evidence to show that the offence was committed in furtherance of a common intention and, he has been convicted based on a recovery under Section 27 of the Evidence Act. It is submitted that, at the best, the revision petitioner can be Crl. Rev. Pet. 685 of 2003 3

termed as a bonafide purchaser of gold ornaments and he can be only proceeded for the offence under Section 411 of IPC and for that, there must be evidence to show that he has a dishonest intention to receive and retain stolen property. It is further submitted that in the absence of any evidence showing that he had a dishonest intention to retain the stolen property, he cannot be convicted even for the offence under Section 411 of IPC.

4. The learned Public Prosecutor on the other hand

submitted that the past acquaintance of revision petitioner with the second accused clearly would establish that they had a common intention to commit the offence.

5. The revisional Court need to visit the finding of facts

only if there is a perversity in appreciation of evidence. On a perusal of the order and other materials, I am of the firm view that the conclusion arrived by both the Courts was based on proper appreciation of the evidence and it warrants no interference. However, taking note of the fact that the revision petitioner has now attained an age of 54, and the offence was committed 27 years ago and taking a lenient view, the sentence is modified. It is to be noted that he was already incarcerated for seven days during investigation stage. Keeping that in mind, the sentence is modified to payment of fine of Rs.10,000/- which

Crl. Rev. Pet. 685 of 2003 4 shall be paid within a period of two months. On default, he has to undergo imprisonment for one month. The Crl.Rev.Pet is disposed of as above. Sd/- A.MUHAMED MUSTAQUE JUDGE sbk/-