IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 1075 of 2001() ------------------------------ CC.264/1994 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE CRA.102/1998 of SESSIONS COURT, KOZHIKOE .................... REVN. PETITIONER: APPELLANT/ACCUSED --------------------- PRASANTH, S/O.RAGHAVAN NAIR, CHORUR VEEDU, NELLIKODE AMSOM, UMMALATHUR DESOM, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.MARY ANNE JOSEPH RESPONDENT:RESPONDENT/COMPLAINANT --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.1075 of 2001 ------------------------------------- Dated this the 1st day of July, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty and conviction in a prosecution under Section 379 I.P.C. The petitioner/accused faces a concurrent sentence of R.I for a period of one month. 2. According to the prosecution, on receipt of discreet information that a person is attempting to sell a stolen bicycle for a throw away price, a police party led by PW10, of which PW7 and 8 were members, proceeded to the spot and arrested the petitioner/accused in the presence of witnesses including PW5. The bicycle, which the petitioner was allegedly attempting to sell, was seized under Ext.P3 as the police party found the contradictory and conflicting answers given by the petitioner to be unsatisfactory. PW10 registered Ext.P5 F.I.R under Section 41(1)(d) Cr.P.C on the basis of such arrest and seizure. Investigation into the crime was entrusted to PW9. PW9 interrogated the accused and he allegedly made confession about the theft of another bicycle by him from a place near the Medical College. In such confession given by the petitioner to Crl.R.P No.1075 of 2001 2 PW9, he furnished the information that such stolen bicycle was sold by him to PW1. PW9 on the basis of that information which is extracted as Ext.P2(a) in Ext.P2, proceeded to PW1. He found M.O.1 bicycle in the possession of PW1 who confirmed that the same was sold to him by the accused claiming that it was his property. He seized the same under Ext.P2 seizure mahazar. PWs 4 and 6 are attestors to Ext.P2 seizure mahazar under which M.O.1 was seized. PW9 continued the investigation. According to the prosecution, M.O.1 bicycle really belonged to PW3. He came to know that certain cycles stolen were recovered by the police from the thief concerned and the cycles were available at the police station. He went to the police station. He identified M.O.1 to be the bicycle belonging to him which was stolen from his possession when parked at the scene of the crime. PW9 continued the investigation. He prepared Ext.P1 scene mahazar describing the venue of theft. PW2 is an attestor to that mahazar. He also prepared Ext.P4 mahazar describing the scene of arrest of the petitioner. Investigation was continued by PW10 who submitted Ext.P6 report to the court to include the allegation under Section 379 I.P.C. Final report was filed by PW10 after completing the investigation. Crl.R.P No.1075 of 2001 3 3. The petitioner was arrested on 05.01.95. He was enlarged on bail as per the trial court judgment on 27.01.1995. 4. Cognizance was taken by the learned Magistrate. The accused appeared before court. He denied the offence alleged against him and thereupon the prosecution examined PWs 1 to 10 and proved Exts.P1 to P6. M.O.1 was also marked. 5. The accused had not cross examined PWs 5 and 9. They were recalled at the defence stage and it is seen surprisingly that they are assigned ranks as DWs 1 and 2 when they were cross examined. The evidence of DWs 1 and 2 are to be read in continuation of the evidence of PWs 5 and 9. No other defence witnesses were examined. 6. The accused in the course of cross examination of the prosecution witnesses and when examined under Section 313 Cr.P.C took up the stand of total denial. According to him he has not committed any offence. 7. The court below accordingly came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 379 I.P.C. Accordingly they proceeded to pass the impugned concurrent judgments. Crl.R.P No.1075 of 2001 4 8. The revision petitioner/accused claims to be aggrieved by the concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner assails the impugned order on the following grounds. (i) The courts below ought to have noted that there is no specific identification of M.O.1 by PW1 from whose possession the same was allegedly recovered by PW9 under Ext.P2 seizure mahazar. (ii) The courts below ought to have noted that there was prevarication on the part of PWs 1 and 3 about the nature of the bicycle which was seized from the possession of PWs 1 and 3 which was lost by PW3. (iii) The court below ought to have noted that the evidence of PWs 7 and 8 indicates that M.O.1 was the bicycle which was seized when the accused was arrested and the version of the prosecution that the M.O.1 was recovered later from the possession of PW1 on the basis of the confession statement of the accused cannot be accepted. 9. I have heard detailed arguments of the learned counsel for the petitioner/accused and the learned Public Crl.R.P No.1075 of 2001 5 Prosecutor. I am in ready agreement with the learned counsel for the petitioner that the manner in which the case was conducted, leaves very little to be desired. The prosecuting official and the court which tried the case do not appear to have riveted their pointed attention to the vital and relevant facts of the case. But the question is whether such imperfection and inadequacy on the part of the Investigator, the Prosecutor or the Trial Court can justify the superior Courts readily conceding the benefit of non existent doubts in favour of the accused. 10. PW3 claims to be the owner of the bicycle M.O.1. According to him he is able to identify the bicycle on the basis of the features noted by him on the bicycle. Of course he initially stated that his bicycle is a Hero bicycle. But in the course of chief examination itself, we find PW3 explaining to the court that it was only an inadvertent statement in his anxiety - he was visiting court for the first time, he asserted. He, during his chief examination itself, clarified that his bicycle was a BSA bicycle and that admittedly M.O.1 is. The evidence of PW3 shows that he had come to court with relevant documents showing the purchase of the bicycle from the dealer. Surprisingly the Investigating Officer had not seized it. The Prosecutor even Crl.R.P No.1075 of 2001 6 after coming to know of the existence of such a document, did not introduce the same into evidence and the court below despite its vast powers under Sections 311 Cr.P.C and 165 of the Evidence Act, did not show the inquisitiveness to see the relevant bill which PW3 stated in the witness box is available with him in his pocket in court. 11. PW3's evidence of identification of M.O.1 as the bicycle thieved from his possession is found to be acceptable in the light of his ability to narrate the frame number of the bicycle and the identification with reference to a sticker which he had affixed on the same (which crucial fact is seen narrated in Ext.P2 seizure mahazar long before PW3 identified the same to be as his own vehicle). In these circumstances I am of the opinion that the courts below committed no error in coming to the conclusion that PW3 is the owner of M.O.1 and that he had later identified M.O.1 when it was available at the police station. On that aspect of the matter no reasonable doubt whatsoever aroused in my mind. 12. PW9 stated that on the basis of the confession statement of the accused [Ext.P2(a)], he proceeded along with accused to PW1 and effected seizure of M.O.1 under Ext.P2 Crl.R.P No.1075 of 2001 7 seizure mahazar. Ext.P2(a) is the relevant confession. The evidence of PW9 and the evidence of PW4 attestor to Ext.P2 as well as the evidence of PW1 clearly clinches the issue on this aspect. Their evidence support each other and their evidence is broadly corroborated and supported by the contents of the contemporaneous seizure mahazar Ext.P2, which was prepared long prior to the time when PW3 came to know that his lost bicycle was traced by the police. But here also, I find there is a serious inadequacy on the part of the Prosecutor and the court in the conduct of the case. PW1 when he was in the box was not called upon to identify the bicycle which was taken from his possession by the police under Ext.P2. That reveals a serious inadequacy. I have no hesitation to agree with the learned counsel for the petitioner on that aspect. But what is crucial is that it is only an indifferent and irresponsible omission on the part of the Prosecutor and the lack of due care on the part of the court which held the trial. If the trial Judge were an active participant in the trial that went on before him and had the requisite quest in him to ascertain the truth, he must have ascertained from PW1 the identify of the bicycle which was sold Crl.R.P No.1075 of 2001 8 to him by the accused and which was seized from his possession by PW9 under Ext.P2. 13. The omission to get M.O.1 specifically identified by PW1 does not succeed in generating any reasonable doubt in my mind as we have the evidence of PW9 that the accused made Ext.P2 confession; that he had led PW9 to PW1 and that M.O.1 bicycle was seized by him in the presence of PW4 under Ext.P2 seizure mahazar. In the evidence of PW1 there is only inadequacy to identify the bicycle which was available in court. But that inadequacy cannot persuade me to concede any benefit of doubt to the petitioner/accused in the light of the evidence of PW9 and the description of the seized vehicle in Ext.P2 seizure mahazar. That inadequacy in the evidence of PW1 resulting from the want of alertness on the part of the prosecuting agency and the court cannot unjustifiably deliver to the accused any undeserved advantage as the evidence of PW9 and PW3 read along with evidence of Ext.P2 convinces me that there is no room for any reasonable doubt on the aspect that it was M.O.1 which was seized from the possession of PW1. 14. PW1 in his evidence stated that the cycle that he purchased from the accused and handed over to the police was a Crl.R.P No.1075 of 2001 9 Rally Cycle. But, the counsel argues, it was really a BSA cycle. The evidence of PW1 shows that it was a Rally Cycle and that he does not remember the other details written on the bicycle. In this context it is relevant to peruse Ext.P2 seizure mahazar. It bears the name BSA. It also bears the name Rally. The cycle was BSA (brand name) but manufactured by Rally, submits the learned Public Prosecutor. The mere fact that PW1 referred to the name of the maker and not the brand name cannot succeed in generating any reasonable doubt in the mind of a court about the case of the prosecution. 15. The story of inadequacy does not rest there also. Surprisingly when PWs 7 and 8 were examined - they are both police officials who accompanied PW10, they spoke of the seizure of a bicycle from the possession of the accused at the time of his apprehension. The prosecution has no case that M.O.1 is that bicycle. PW10 does not say that at all. But PWs 7 and 8 when they were examined, light heartedly, I must say, identified M.O.1 as the bicycle seized under Ext.P3. A reading of Exts.P2 and P3 must show clearly that M.O.1 is covered by Ext.P2 and not Ext.P3. The Prosecutor who examined PWs 7 and 8 had no clue of his case, it is evident. That is why PWs 7 and 8 Crl.R.P No.1075 of 2001 10 were shown M.O.1 to be marked. The Prosecutor did not know, it appears, that the prosecution has not chosen to produce the bicycle under Ext.P3 from the possession of the accused when he was arrested in court in this case. That bicycle was evidently required in connection with some other case and the same was not produced before the court in this case. PWs 7 and 8 had mechanically stated that what was seized under Ext.P3 was M.O.1. 16. The sum total of the dispute before us is only whether any benefit or advantage can be conceded to the accused on the basis of such inexact details spoken to by PWs 7 and 8 and the omission to get PW1 to identify the bicycle seized from his possession under Ext.P3 is specifically. 17. Having rendered my anxious consideration to all the relevant aspects, I am not persuaded to agree that the petitioner/accused is entitled to the benefit or advantage of any nonexistent doubt. As already adverted to by me, no reasonable doubt whatsoever is generated in my mind about the acceptability of the case of the prosecution notwithstanding the glaring inadequacies. The challenge raised on merits about the verdict of guilty and conviction must in these circumstances fail. Crl.R.P No.1075 of 2001 11 18. The learned counsel for the petitioner/accused finally submits that the sentence imposed on the petitioner/accused may be modified and reduced. He has endured the trauma of this prosecution for a long time - from 1995 to this date - more than about 1 ½ decades. Courts considering his plight had sentenced him only to R.I for a period of one month. He has already been in prison as per the order of the trial court from 05.01.95 to 27.01.95 during trial. It is also evident that in the course of investigation also, he was in custody from 18.10.93 for some days, even though the available records do not give this Court an authentic idea about the period of detention prior to commencement of trial. The learned counsel for the petitioner in these circumstances submits that the 24 year old young petitioner (at the time of commission of the offence) may be shown leniency and he may not be dragged back to prison at this stage to undergo imprisonment for the remaining days, which going by the indications available can only be in single digit. I find merit in that contention. The offence committed by the accused, though it deserves condemnation, I take note of the passage of time and the meager period of sentence that remains to be served. I am satisfied that the petitioner need not be Crl.R.P No.1075 of 2001 12 dragged back to prison now to serve the remainder insignificant term. The challenge in this revision petition can succeed only to the above extent. 19. In the result: (a) This revision petition is allowed in part; b) The verdict of guilty and conviction of the petitioner under Section 379 I.P.C are upheld; c) But the sentence imposed on him is modified and reduced from R.I for a period of one month to imprisonment for the period already undergone during the pendency of the investigation and trial. (R.BASANT, JUDGE) rtr/-