Partly allowed

Biju @ Jimmy Joseph v. State of Kerala

Kerala HC19 Oct 2023Crl.Rev.Pet/300/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition, confirming the conviction and conviction of the appellant for theft. While upholding guilt, the Court reduced the sentence to one year of simple imprisonment, considering the appellant's age and time served. The conviction is confirmed, and the sentence is remanded to the Trial Court for execution.

What did the court decide?

Conviction confirmed; sentence reduced to one year simple imprisonment to be executed by Trial Court.

Biju @ Jimmy Joseph Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945

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CRL.REV.PET NO. 300 OF 2011

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AGAINST THE JUDGMENT IN CRA 180/2007 OF THE COURT OF SESSION,MANJERI DIVISION

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CC 126/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MALAPPURAM
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:

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BIJU @ JIMMY JOSEPH

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CHEMBAKASSERI HOUSE, PULLIPADAM, MAMPAD,, MALAPPURAM
DISTRICT.

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BY ADV SRI.JACOB SEBASTIAN

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RESPONDENT:

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STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM,
REPRESENTING THE SUB INSPECTOR OF, POLICE, MALAPPURAM
POLICE STATION.

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 SMT. NIMA JACOB, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.R.P NO.300 OF 2011 2

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Dated this the 19^th day of October, 2023

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ORDER

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The revision petition is filed challenging the legality and correctness of the judgments in Crl.Appeal No.180/2007 of the Court of Sessions, Manjeri Division (Appellate Court), confirming the judgment in C.C. No.126/2005 of the Court of the Judicial First Class Magistrate, Malappuram(Trial Court), holding the revision petitioner/first accused guilty for the offence under Section 379 r/w 34 of the Indian Penal Code (in short, ‘I.P.C’) and convicting and sentencing him for the above offence.

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Factual narrative

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The prosecution case is that, on 9.10.2003, between 10 a.m and 1 p.m., the accused in furtherance of their common intention committed theft of a motorcycle worth Rs.43,000/- belonging to PW1, which was parked near the Service Co-operative Bank,

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Crl.R.P NO.300 OF 2011 3

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Makkaraparamba and thereby the accused committed the offences under Section 379 r/w 34 of the IPC. The second accused absconded and the case against him was split up and refiled as C.C. No.1401/2006.

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The first accused appeared and denied the substance of accusation read over to him. In the trial, the prosecution had examined PWs1 to 8 and marked in evidence Exts.P1 to P4. The first accused denied the incriminating circumstances appearing against him in the evidence in the questioning under Section 313 of the Code of Criminal Procedure (in short, ‘Code’)

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The learned Magistrate, after analysing the materials placed on record, found the first accused guilty and convicted and sentenced him to undergo simple imprisonment for two years for the offences under Section 379 r/w 34 of the IPC.

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Aggrieved by the said judgment, the first accused filed Crl.Appeal No.180/2007 before the Appellate Court.

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The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment,

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Crl.R.P NO.300 OF 2011 4

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confirmed the conviction and sentence imposed by the Trial Court.

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It is assailing the concurrent judgments passed by the courts below, the present revision petition is filed.

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Heard; Sri.Jacob Sebastian, the learned counsel appearing for the revision petitioner/first accused and Smt.Nima Jacob, the learned Public Prosecutor appearing for the respondent-State.

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Is there any illegality, impropriety or irregularity in the judgments of the courts below?

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The prosecution case is that, on 9.10.2003, PW1 had parked his motorcycle near his Bank. At about, 1.30 p.m., he found his bike was missing. He immediately lodged Ext.P1 FI statement before the Sub Inspector of Police, Malappuram. Even though an investigation was ordered, subsequently a refer report was filed before the Magistrate. Subsequently, the first accused was arrested by the Manjeri Police on the allegation of committing an offence under the Arms Act. According to PW4, his son (PW6) is a friend of the first accused. The first accused

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Crl.R.P NO.300 OF 2011 5

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had borrowed an amount Rs.30,000/- from PW4 and had handed over the motorcycle to him. On seeing a newspaper report regarding the arrest of the first accused, he immediately alerted the Police regarding the entrustment of the motorcycle by the first accused. Immediately, the Sub Inspector of Police went to the house of PW4 and seized the motorcycle.

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PW5, an employee of PW4, witnessed the police seizing the motorcycle from PW4’s house and attested Ext.P3 seizure mahazar. The motorcycle, which was taken to the Police Station, was identified by PW1 and the same was released to him as per Ext.P2 kychit.

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It is on the basis of the oral testimonies of PWs 1, 4 and 6 – the sterling witnesses - the courts below convicted and sentenced the first accused. In addition to their testimonies, PWs2 and 3 were also examined to prove that they were aware of the fact that PW1's motorcycle was stolen. PWs7 and 8 are the attestors to Ext.P4 scene mahazar.

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After bestowing my anxious consideration to the

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Crl.R.P NO.300 OF 2011 6

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materials placed on record, I do not find any error, illegality or impropriety in the courts below finding that that the accused has committed the above offences. Thus, I confirm the conviction of the revision petitioner/first accused.

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Now coming to the question of sentence.

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The learned counsel appearing for the first accused/revision petitioner argued that the first accused was only aged 25 years at the time of the incident. He has already undergone imprisonment for a period of more than three months as an under-trial prisoner. It is not discernible as to whether the accused was remanded to judicial custody after the impugned judgments. The first accused is the sole bread-winner of his family and a lenient view may be taken in the matter of sentencing the first accused, especially since he has no criminal antecedents.

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Taking into consideration the fact that the incident occurred as early as on 9.10.2003 i.e., exactly two decades back and the first accused/revision

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Crl.R.P NO.300 OF 2011 7

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petitioner has repented for the offences committed by him and now he is 45 years of age, I am of the view that a lenient view can be taken in the matter and sentencing the revision petitioner/first accused to undergo simple imprisonment for a period of one year, would meet the ends of justice. The first accused would also be entitled to set off.

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In the result,

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(i) The revision petition is partly allowed;

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(ii) The conviction imposed on the revision petitioner by the courts below is confirmed;

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(iii) The revision petitioner is sentenced to undergo simple imprisonment for a period of one year under Sec.379 r/w Sec.34 of the I.P.C. The revision petitioner is entitled to set off;

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(iv) The first accused is directed to appear before the Trial Court on or before 20.12.2023 to undergo the sentence, if he has already not undergone the sentence.

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(v) In case of failure of the revision petitioner/first accused to appear before the Trial Court, the learned

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Crl.R.P NO.300 OF 2011 8

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Magistrate shall execute the sentence in accordance with law.

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(vi) The execution of the sentence shall stand

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deferred till 19.12.2023.

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(viii)The Registry is directed to forward a copy of this order to the Trial Court for compliance.

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SD/-

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C.S.DIAS, JUDGE

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rmm19/10//2023

Biju @ Jimmy Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

Biju @ Jimmy Joseph v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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