Jabbar vs State of Kerala

S. Siri Jagan, J.—The petitioner in this Crl. R.P is the third accused in C.C. No. 184/2006 of the Judicial First Class Magistrate''s Court- II, Thamarassery. The prosecution case is as follows:

On 12.3.2006 at about 1.30 a.m., the petitioner along with two others stole 123 rubber sheets and 1= quintal scrap rubber kept at the building owned by the de facto complainant situated at a place called Koodathai. The petitioner along with the other two were charged for offences punishable under Sections 457, 380, 461 read with Section 34 of the Indian Penal Code. After trial, the Magistrate found all the three including the petitioner guilty of the offences punishable under Sections 380 and 457 read with Section 34 of the Indian Penal Code. For offence u/s 380 read with Section 34 of the Indian Penal Code, all the three accused were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- each with a default sentence of simple imprisonment for three months. For the offences punishable u/s 457 read with Section 34 of Indian Penal Code, the accused were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- each with a default sentence of simple imprisonment for three months. It was ordered that the sentence shall run concurrently. But the accused were not found guilty of offences punishable u/s 461 read with Section 34 of the Indian Penal Code. Accused nos. 2 and 3, namely, the petitioner and another, filed Crl. Appeal No. 906/2007 before the Additional District and Sessions Judge, Fast Track (Ad Hoc-I), Kozhikode, who dismissed the appeal. the petitioner is challenging the orders of the courts below.

The contention of the learned counsel for the petitioner is that there is no acceptable evidence on record to prove the involvement of the petitioner in the theft. According to the petitioner, the shop keeper, who is alleged to have brought the rubber sheets and scrap rubber, stated in his statement u/s 161 of Criminal Procedure Code that he does not know the petitioner, whereas in the evidence before the court as PW3, he deposed positively regarding the identification of the petitioner. Therefore, according to the petitioner, this discrepancy in the 161 statement and the evidence before the court are sufficient to hold the petitioner not guilty of the charges found against him.

I have heard the learned Public Prosecutor also.

I have considered the rival contentions in detail.

The prosecution case is that the petitioner along with the 2nd accused sold scrap rubber to PW5 at his shop. PW6, who was the adjacent shop owner testified to the fact that he was a witness to the seizure and he identified the petitioner as the one who sold the scrap rubber. The owner of the rubber sheets and scrap rubber gave evidence to the effect that the rubber sheets and scrap rubber seized from the shop of PW5 was his own. The cross examination of neither PW6 nor the de facto complainant resulted in anything to discredit their testimony. The evidence has been elaborately discussed both by the Magistrate as well as the Sessions Judge. I am satisfied that after going through the evidence, the prosecution has succeeded in proving the guilt of the petitioner beyond any reasonable doubt, particularly in view of illustration (a) of Section 114 of the Indian Evidence Act. Therefore, I am not inclined to interfere with the conviction entered by the courts below. This Court had called for a report from the Probation Officer, Kozhikode. A report has been forwarded by the Probation Officer who did not recommend invocation of the provisions of the Probation of Offenders Act in favour of the petitioner since he did not receive any report from the District Probation Officer, Kannur. No previous case against the third accused has been noted therein. It is specifically stated that he has wife and two children. The petitioner''s family is in very indigent circumstances. It is stated that his eldest daughter is suffering from epilepsy and his second son also has a very serious recurring ailment, for which no permanent cure has been found yet.

Taking into account all these facts, I order that the sentence of the petitioner be confined to the sentence already undergone by him. However, he shall pay the fine, if not already paid. The Crl. R.P. is disposed of as above.