IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 Crl.Rev.Pet.No. 160 of 2008() ----------------------------- CRA.219/2004 of VI ADDL.SESSIONS COURT, ERNAKULAM CC.865/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------------------------------------------ THANKAN @ THANKACHAN @ VARGHESE, S/O.VINCENT, THODIYILPUTHEN VEEDU, KANJIRACODE DESAM, KUNDRA TALUK, KOLLAM NOW RESIDING AT HOUSE NO.29, CHETTI STREET, VINCENT ROAD, COIMBATORE TOWN, COIMBATOOR CITY, TAMILNADU STATE. BY ADV. SRI.K.V.SABU RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/02/2008, ALONG WITH CRRP NO. 161 OF 2008 CRRP NO. 162 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.Nos.160, 161& 162 of 2008 = = = = = = = = = = = = = = Dated this the day of February, 2008 ORDER The common revision petitioner in these three revisions was the common accused in C.C.Nos.865,866 and 992 of 2001 on the file of J.F.C.M-II, Aluva. C.C.Nos.865, 866 and 992 of 2001 arouse out of Crime Nos.47/2000, 169/2000 and 5/2000 respectively of Kalamassery Police Station. In crime No.47/2000, the petitioner was charge sheeted for offences punishable under Sections 454,461 and 380 IPC. In the other two crimes, the petitioner was charge sheeted for offences punishable under Sections 457,461 and 380 IPC. ➢ C.C.No.865/2001 2. The case of the prosecution in crime No.47/2000 can be summarised as follows:- Sometime in the night of 24.2.2000, the accused committed house breaking into the residential building bearing Door No.34/1331 belonging to PW1(Sivasankaran) and committed theft of gold ornaments worth Rs.18,000/- , kept in an Almirah in Crl.R.P.No.160/08 & con. matters 2 the said house. The accused has thereby committed offences punishable under sections 454,461 and 380 IPC. 3. The learned Magistrate framed a charge for offences punishable under sections 457,461 and 380 IPC. On the petitioner pleading not guilty to the charge framed against him by the Magistrate, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 10 witnesses as PWs1 to PW10 and got marked 7 documents as Exts.P1to P7. PW1 (Sivasankaran)is the owner of the house from which the theft had taken place. PW2 (Augustine) is the person who, on coming to know about the theft in the house of PW1, had informed PW1. PW1 had gone to Perinthalmanna in the morning of 23.2.2000 after locking the house. PW6 Jamaludheen was the Circle Inspector of Police who arrested the accused on 23.11.2000 from Chethankulangara under suspicious circumstances. The specimen finger prints of the accused were taken for the purpose of comparison with the chance finger prints obtained from the scene of occurrence. PW5, Finger Print Expert opinined that both the finger prints are Crl.R.P.No.160/08 & con. matters 3 of the same person. After the arrest of the accused by PW6, when interrogated the accused gave a confession statement to the effect that he had sold the chain and bangles to one Muhammed Rafeeq, a gold broker at Coimbatore. On the strength of the said statement he led the Police party to Coimbatore. The said Mohammed Rafeeq, whose house was located, subsequently produced the gold ingots stating that those ingots were products of converting the gold ingots which he had purchased from the accused. Ext.P3 is the Seizure Mahazar under which the ingots were seized. But then the said Mohammed Rafeeq was not examined as a prosecution witness. 3. After the close of the prosecution evidence, the accused was examined under Section 313(1)(b) Cr.P.C with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. 4. The learned Magistrate after trial found the revision petitioner guilty of the offences and sentenced him to undergo rigorous imprisonment for two years each under sections Crl.R.P.No.160/08 & con. matters 4 457,461 and 380 IPC. ➢ C.C.No.866/2001 5. The case of the prosecution in Crime No.169/2000 can be summarised as follows:- At about 1.45 A.M on 25.6.2000, the accused committed house breaking in respect of the residential building bearing Door No.C.C/527-A situated on the Edappally Manimala Road and committed theft of gold ornaments worth Rs.60,750/- kept in an almirah in the said house. The accused has thereby committed offences punishable under sections 457,461 and 380 IPC. 6. On the accused plead not guilty to the charge framed against him by the learned Magistrate for the aforesaid offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 9 witnesses as PW1 to PW9 and got marked 7 documents as Exts.P1 to P7 and MO1 series of gold ingots. PW1 (Jayakumar) is the owner of the house in question. He gave evidence in support of the theft of gold chain, bangles, hand chain, bracelet, ear rings, anklets etc. worth Rs.60,750/-. There was evidence of the thief gaining his Crl.R.P.No.160/08 & con. matters 5 entry into the house through the terrace. The accused was arrested by PW7, the Circle Inspector of Police at 2.30 P.M on 23.11.2000 from Chethankulangara under suspicious circumstances. The specimen finger prints of the accused were taken for the purpose of comparison along with chance finger prints obtained from the scene of occurrence. PW9, Finger Print Expert attached to the Ernakulam City Finger Print Bureau opined that the chance finger prints collected from the scene of occurrence matched with the specimen finger prints of the accused. After the arrest of the accused by PW6, the accused when interrogated gave a confession statement to the effect that gold chain, ear rings, lockets etc, had been sold by him to one Raja at Coimbatore. Pursuant to the above statement, the accused led the Police party to Coimbatore. The house of the said Raja was located and he subsequently produced MO1 series of gold ingots before PW7 who seized the same under Ext.P3 mahazar. But then the said Raja was not examined as a prosecution witness to show that MO1 series of gold ingots are the very same ingots which were obtained after melting the gold Crl.R.P.No.160/08 & con. matters 6 ornaments in question so as to fall under Section 27 of the Indian Evidence Act. 8. The learned Magistrate after the trial, found the accused guilty of the aforesaid offences and sentenced him to undergo rigorous imprisonment for three years each under sections 457 and 380 IPC and two years under Section 461 IPC. ➢C.C.No.992/2001 The case of the prosecution in Crime No.5/2000 can be summarised as follows:- At about 2 A.M on 15.01.2000, the accused committed house breaking in respect of the residential building bearing Door No.49/222 of the Cochin Corporation and committed theft of gold ornaments worth Rs.61,000/-and cash worth Rs.1,500/- and a gold wrist watch worth Rs.2,500/- which were all kept in an almirah in the said house. The accused has thereby committed offences punishable under sections 457,461 and 380 IPC. 9. On the accused pleading not guilty on the charge framed against him by the learned Magistrate for the aforesaid offences, Crl.R.P.No.160/08 & con. matters 7 the prosecution was permitted to adduce evidence in support of its case. The prosecution examined eight witnesses as PW1 to PW8 and got marked 8 documents as Exts.P1 to P8. PW1 (Ramachandran Nambiar) is the owner of the house in question and PW2 (Prabha) is his daughter. Both of them gave evidence to the effect that a theft had taken place in the said house during the night of 14.01.2000 at a time when they were fast asleep. The accused was arrested by PW5, the Circle Inspector of Police at 2.30 P.M on 23.11.2000 from Chethankulangara under suspicious circumstances. On interrogation the accused gave a confession to the effect that the gold chains, bangles, ear studs etc were sold by him to one Raja at Coimbatore resulting in the recovery of gold ingots under Ext.P3 seizure mahazar. That apart, the chance finger prints collected from the scene of occurrence when matched with the specimen finger prints of the accused showed that both were of the same person. 10. The learned Magistrate after the trial found the accused guilty of the aforesaid offences and sentenced him to undergo rigorous imprisonment for three years each under Crl.R.P.No.160/08 & con. matters 8 sections 457 and 380 IPC and two years under Section 461 IPC. 11. On appeals preferred by the petitioner before the Sessions Court, Ernakulam, as per separate judgments rendered by the VIth Additional Sessions Court, Ernakulam, the appeals were dismissed. Hence these revisions. 12. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revisions:- The only evidence to connect the revision petitioner with the occurrence is the report of the Finger Print Expert. All the reports prepared by the Finger Print Expert were sent to court only after the arrest of the accused. The expert has admitted that there are variations in the finger prints and there were only eight identical ridge characteristics as against the minimum of 12. The recovery effected will not fall under Section 27 of the Evidence Act. The courts below should not have convicted the revision petitioner on the slender and suspicious evidence of the Finger Print Expert alone. 13. I am afraid that I cannot agree with the above Crl.R.P.No.160/08 & con. matters 9 submissions. It is true that the Finger Print Expert deposed that on comparison of the chance finger prints obtained from the scene of crime and the specimen finger prints of the accused, there were only 8 ridge characteristics. But, no where it is stated that, at least 12 ridge characteristics should be present before the opinion of the expert can be accepted. On the contrary in the decision Mohanlal vs.Ajith Singh (AIR 1978 SC 1183) it has been held that 8 similar ridge characteristics are sufficient to hold that the disputed finger prints and the specimen finger prints are of the same person. It is true that the recovery evidence adduced by the prosecution will not fall under Section 27 of the Evidence Act since the person to whom the gold ornaments were allegedly sold has not been examined as a witness before the court and there is therefore no incriminating evidence to show that the ingots seized from that person were the products of conversion of the gold ornaments allegedly purchased by him from the accused. But the conduct of the accused in leading the police party to the person to whom he allegedly sold the gold ornaments and the production of the Crl.R.P.No.160/08 & con. matters 10 gold ingots by such person may constitute a conduct falling under Section 8 of the Evidence Act, though not under Section 27 of the Evidence Act. In the absence of any infirmity in the evidence of the fingerprint expert, the findings concurrently recorded by the courts below accepting the testimony of the fingerprint expert cannot be said to be faulty or unsustainable. The conviction was thus rightly entered against the petitioner. 14. Sentence imposed on the petitioner also cannot be said to be harsh or disproportionately excessive having regard to the proclivities as well as the antecedents of the petitioner. I therefore find no good ground to interfere with the conviction entered or the sentence passed against the revision petitioner. In the result these revisions, which are devoid of any merit, are dismissed, confirming the conviction entered and the sentence passed against the revision petitioner. V. RAMKUMAR, JUDGE sj